The U.S. Supreme Court dealt multiple judicial blows during the final days of its term to tribal interests.
In the last days before the summer recess the high court took action on four Indian law cases. Most of them weren’t satisfactory from a tribal perspective. Two others were still pending as the session ended.
The biggest decision from a tribal viewpoint, was that the justices agreed to hear a treaty rights case: Washington State Department of Licensing v. Cougar Den. The controversy revolves around whether members of the Yakama Nation must pay state fuel taxes. The Washington Supreme Court has ruled that the tax is banned because of the 1855 Yakama Treaty, which guarantees “free access” to state roads to tribal members.
That decision was appealed by Washington Attorney General Bob Ferguson, given cover by the Trump Administration, whose Justice Department argues that the tax does not violate the treaty. It has urged the Supreme Court to take up the case.
Cougar Den is a fuel company based on the reservation. Arguments could come just after the justices begin their next term this October.
Next the court rejected petitions by the Eastern Shoshone and Northern Arapaho Tribes to keep intact the boundaries of Wyoming’s Wind River Reservation. It upheld a 2017 ruling by the 10th Circuit Court of Appeals in the cases Eastern Shoshone Tribe v. Wyoming and Northern Arapaho Tribe v. Wyoming that the town of Riverton was no longer in the reservation because Congress opened it to allotment in 1906.
The Obama administration had helped the tribes fight their case, but the Trump administration abandoned the effort and advised the Supreme Court to deny their petitions.
A spokesman for the Eastern Shoshone Business Council reacted: “This is far from the first time the tribe has faced challenges imposed by the U.S. government,” read the statement. “Indeed, much of the history between the tribes and the United States has been one of the U.S. making promises to the tribe, only to break them later.”
It added, “It is enormously disappointing that the court apparently did not see the monumental importance, and the injustice, of the Tenth Circuit’s decision, which reduces the sovereign territory of the Eastern Shoshone based on a deeply flawed analysis.”
Interestingly, recently added Justice Neil Gorsuch had sided with Ute Tribe in a similar case when he was a judge on the 10th Circuit. However, he did not take part in considering the tribes’ petitions, probably because of his involvement in the similar case.
The Supreme Court has agreed to hear the petition of a case similar to Cougar Den: Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation, which was originally decided in favor of the tribes by a Utah District, which ruled that Ryan Harvey, a non-Indian who operates an energy service business, must exhaust all remedies in tribal court before resorting to a state court, as the Utah Supreme Court has ruled in other instances. This concept is a well-established precedent in the federal judicial system.
The high court has called on the U.S. Solicitor General to weigh in on the case.
Harvey says his case is different. He accuses the tribe of extortion and claims he can’t get a fair trial in a Ute court.
In Harvey’s petition to the Supreme Court, he writes, “The oil and gas industry serves as the bedrock of the Uintah Basin economy.” He adds, “The industry relies heavily on access to the Uintah and Ouray Reservation of the Ute Indian Tribe. This gives the tribe immense leverage over the industry itself and the local businesses that support it.”
The tribe counters that Harvey never applied to a Ute court to test whether it was biased or not. In its counter to the petition it writes “The Utah District Court rejected this argument, finding that petitioners provided no evidence to support an allegation of bias.”
The high court is waiting for the Trump administration to submit a brief before deciding whether to take up the case when it resumes work in October.
The Supreme Court’s ruling in favor of California’s Shingle Springs Band of Miwok Indians was a rare case of a ruling most tribes like. The court declined to review a case where Sharp Image Gaming, the tribe’s former partner, sued for a portion of the tribe’s casino profits. However, the contract had never been approved by the National Indian Gaming Commission. Sharp won a $30 million judgment, but a state appeals court overruled that—and now the Supreme Court has let that ruling stand.
Cases remained before the Supreme Court at the end of its session included, Herrera v. Wyoming, a case where a Crow Tribe member was prosecuted for hunting Bighorn elk, something that was guaranteed for tribal members by treaty. The Wyoming Supreme Court ruled that the right to hunt was superseded by the admission of the state into the union. The Trump administration is backing the Crow member.
