AMERICAN INDIAN LAW

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In this case, the Supreme Court will decide whether members of the Crow Tribe of Indians retain a right to hunt outside of the Crow Reservation on “unoccupied lands of the United States,” a right which was originally established in an 1868 federal treaty. Clayvin Herrera argues that because Congress has not specifically abrogated this hunting right and because Bighorn National Forest qualifies as unoccupied land which once belonged to the Crow Tribe, the treaty-based hunting right should be upheld. Wyoming, on the other hand, asserts that the establishment of Wyoming as a state and the creation of the Bighorn National Forest extinguished this off-reservation hunting right. The outcome in this case will determine the scope of the 1868 treaty and will clarify the hunting rights afforded to present-day Crow tribal members.

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This case asks the Supreme Court to decide whether the Bankruptcy Code unequivocally expresses congressional intent to abrogate the sovereign immunity of Indigenous tribes. The Lac du Flambeau Band of Lake Superior Chippewa Indians argues that the Bankruptcy Code’s language is unclear, ambiguous, and subject to reasonable alternative interpretations, which fails to meet the high bar of an unequivocal expression of Congress’s intent. Brian W. Coughlin counters that there is no requirement for an explicit reference to Indigenous tribes, and that the ordinary meaning of the word “governmental unit” clearly shows Congress’s intent to abrogate the sovereign immunity of Indigenous tribes. This case touches on essential questions regarding tribal self-governance and abuse of the system of sovereign immunity.

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With Lewis and Clarke, the Supreme Court will venture into the relatively unfamiliar legal territory of tribal sovereign immunity for individuals employed by Indian tribes. The case arises out of an automobile accident between Brian and Michelle Lewis and William Clarke, an employee of the Mohegan Sun Casino, which is owned by the Mohegan tribe. In a lawsuit brought by the Lewises, Clarke successfully convinced the Connecticut Supreme Court that he was entitled to tribal sovereign immunity. The Lewises argue that sovereign immunity does not apply when a tribal employee is sued in his individual capacity because the finances of the tribe are not formally at risk. Clarke counters that the finances of the tribe are at risk in this suit, and thus, the sovereign immunity of the tribe should extend to him because he was acting within the scope of his tribal employment. To some, the voyage of Lewis and Clarke into the obscure realm of tribal sovereign immunity for individuals imperils tribal coffers; to others, the regulatory power of the states is at stake.

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In this case, the Supreme Court will decide whether an Indian reservation can be diminished through events occurring after the sale of land to non-Indian settlers despite an absence of clear congressional intent to diminish the reservation. See Brief for Petitioners, Nebraska, et al., at i. In 1882, Congress passed a statute (“Act of 1882”) to sell a portion of the Omaha Indian Tribe’s (“Omaha Tribe”) reservation in Nebraska. See Brief for Petitioners at 9. Since the enactment of the Act of 1882, it has been unclear whether the portion sold still belongs to the Omaha Tribe’s reservation or if the reservation was diminished. See id. Petitioners (“Nebraska”) argue that de facto diminishment has occurred because the Omaha Tribe has declined to exercise their jurisdiction over the land and the land has lost its Indian character. See Brief for Petitioners at 24–26. The Omaha Tribe denies that the land has lost its Indian character and argues that jurisdiction over the land was never abandoned. See Brief for Respondents at 7. Significantly, the Omaha Tribe argues that neither the statutory language nor legislative history of the Act of 1882 supports the inference that Congress intended to diminish the reservation by selling the land. See id. at 10.

The Court’s decision in this case will implicate the reading of Solem v. Bartlett, which articulated a three-part analysis to evaluate when diminishment of an Indian reservation has occurred: (1) the statutory language used to sell Indian land; (2) events surrounding the passage of the sale of Indian land; and (3) events occurring after the sale of Indian land. See Brief for Petitioners at 21. 

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This case provides the Supreme Court with the opportunity to determine whether the United States Government ("Government") can use uncounseled tribal court convictions to satisfy the predicate offense requirement outlined in 18 U.S.C. § 117(a). Section 117(a) is a domestic assault statute under which the Government may prosecute a person who has committed sexual assault within the U.S. or Indian country and who has already been twice convicted in State, Federal, or Indian court, of assault against a spouse or intimate partner. The Government argues that it may use Bryant’s prior convictions in his § 117 prosecution because the convictions did not violate the U.S. Constitution but were instead obtained on tribal lands where the Constitution is inapplicable. The Government further argues that using the convictions would not violate due process because the statute passes the rational-basis standard of review and is consistent with the principles of comity. Bryant counters, arguing that the Court’s precedent establishes a bright-line rule that invalidates convictions obtained in a manner that violates the Constitution, including Bryant’s convictions here, and that the Government’s reading of Court precedent is overly broad. Bryant further contends that allowing these convictions would lead to either admittance of an abundance of suspect convictions or a complex process requiring courts to determine the validity of each conviction. The Supreme Court’s resolution of this case will significantly impact the validity of tribal court judgments for purposes of predicate-offense crimes as well as the ability of prosecutors to prevent domestic abuse crimes in Indian Country.

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This case asks the Supreme Court to rule on whether a tribal police officer has authority to temporarily stop and search a non-Indian on public rights-of-way within Indian jurisdiction based on a potential violation of state or federal law. Petitioner United States argues Indian tribes have broad sovereign authority to protect people and property within its borders, which includes the authority to temporarily stop and search non-Indians in Indian jurisdiction for potential state- or federal-law violations. Respondent Cooley counters that Indian tribes have no such authority because they do not have inherent sovereign authority to conduct this type of stop and search; in addition, neither Congress nor the courts have given tribal officers the authority to do so. The outcome of this case has significant policy implications raising concerns of the proper balance between public safety and individual rights on Indian jurisdiction. The case also implicates the scope of tribal sovereignty and the proper role of Congress and the courts in delineating the extent of tribal authority over non-Indians within tribal territory.

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In this case, the Supreme Court will decide whether there will be an exception to the rule of tribal sovereign immunity when a tribe is sued in an in rem proceeding. Petitioner Upper Skagit Indian Tribe argues that there should not be an exception for in rem proceedings because actions against a tribe’s land challenge its sovereignty and cannot be distinguished from in personam actions in the way they affect a tribe’s personal interests. The Upper Skagit Indian Tribe asserts that because the Court has never recognized this exception it is up to Congress instead to weigh the policy considerations at issue and create new legislation if necessary. Respondents Sharline and Ray Lundgren argue that the Upper Skagit Indian Tribe does not have sovereignty over the land at issue because it lost title to the land in 1855 and cannot regain sovereignty through a commercial purchase, which is how it got the land back in 2013. Furthermore, the Lundgrens argue that there should be an exception to tribal sovereign immunity for cases of in rem jurisdiction because of the state interest in regulating the conditions of title to property within its territory. This case will determine whether there will be a new class of cases in which a private individual can subject an Indian tribe to a lawsuit.

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This case asks whether the Alaska Native Corporations (“ANCs”) are entitled to relief provided to “Indian Tribes” under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The CARES Act incorporates the definition of “Indian tribe[s]” from the Indian Self-Determination and Education Assistance Act. Petitioners U.S. Treasury and ANCs argue that Congress expressly included the Alaska Native Corporations in the definition of Indian tribes and that the plain-meaning of the term “recognition” in the statute supports this inclusion. Respondent Confederated Tribes of the Chehalis Reservation and Ute Indian Tribe of the Uintah and Ouray Reservation argue that the ANCs do not qualify as Indian tribes because they are not formally recognized by a governmental authority or Congress as a sovereign tribe. The Supreme Court’s decision will impact the ability of Alaska Native Corporations to access funding through federal programs. 

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This case asks the Supreme Court to decide whether Texas can regulate bingo and other gaming activities on tribal lands. Petitioner Ysleta del Sur Pueblo argues that the Court's precedent of Cabazon Band should control for purposes of statutory interpretation. Under Cabazon Band, tribes cannot operate games that state law prohibits; however, tribes do not have to follow state regulations governing games that are not otherwise prohibited. Respondent Texas maintains that the Restoration Act controls this issue, and that the Act does not incorporate the Cabazon Band interpretation. Therefore, Texas asserts that all gaming activities on tribal lands are subject to Texas regulations. The outcome of this case is limited to two tribes in Texas but could have implications on their tribal sovereignty.

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