Indian tribes are waiting with interest the resolution of several casinos before the U.S. Supreme Court that involved tribal interests, including some that have gaming ramifications.
One case, Carpenter v. Murphy, will resolve whether the Muscogee (Creek) Nation will continue to exist. The state of Oklahoma and the Trump administration contend that Congress disestablished the reservation. However the court wasn’t so sure and last week ordered more briefs submitted, something considered highly unusual.
Joel Williams, an attorney for the Native American Rights Fund, commented, “That really signals, at least at that stage, that the court was struggling to get their majority view on this case.” He was speaking to leaders of the United South and Eastern Tribes at a meeting in Washington D.C.
Reaching a decision could be iffy on this one, he said, because Justice Neil Gorsuch has recused himself due to his having previously service on the 10t Circuit Court of Appeals, where the lawsuit originated. That means a 4-4 vote is possible.
Sovereign immunity is at issue in an appeal the Poarch Band of Creek Indians filed in Poarch Band of Creek Indians v. Wilkes, which involves whether an employee of a tribal casino can prosecuted for an accident that occurred in Alabama, rather than on the reservation. The Alabama Supreme Court ruled that sovereignty immunity did not apply. The tribe appealed to the U.S. Supreme Court, which not only collected all of the briefs in the case, but also asked for the Trump administration’s opinion. A brief by the Department of Justice is expected next month.
Native American Rights Fund and the National Congress of American Indians jointly fund the Tribal Supreme Court Project, which is monitoring multiple petitions to the high court.
In one case, McNeal v. Navajo Nation, a New Mexico case involving tribal immunity, the 10th Circuit Court of Appeals ruled last summer that the Nation did not waive sovereign immunity in connection some incidents at tribal casinos. The high court is expected to rule very soon whether to accept the case.
Another case expected to be resolved soon is Casino Pauma v. National Labor Relations Board. The Pauma Band of Luiseño Indians claims not to be bound by the National Labor Relations Act, which the NLRB insists that it is.
Last year the 9th Circuit Court of Appeals ruled for the NLRB. The tribe has appealed. The Department of Justice argues that the law is settled and that appellate courts have repeatedly upheld that tribes are under the NLRB.
Meanwhile a bill that would remove tribes from that jurisdiction remains frozen in Congress.
