By Acee Agoyo
WASHINGTON, D.C. — As dangerous smoke from wildfires cast an ominous shadow over the nation’s capital, tribes and their advocates continue to wait for a series of monumental decisions from the U.S. Supreme Court. Just a few weeks are left in the high court’s current term. But Indian Country has been waiting for seven months for rulings that will affect the very core of tribes and their rights. “It is about disabling tribal sovereignty,” Chairperson Sherry Treppa of Habematolel Pomo of Upper Lake said of the looming threats from the Supreme Court. “It is about redefining us as a race instead of a sovereign government,” Treppa said during NAFOA’s 41st annual conference here in late April.
Treppa specifically highlighted the dangers of the long-awaited decision in Haaland v. Brackeen. The outcome will determine whether tribes can protect their youngest citizens through the Indian Child Welfare Act (ICWA), a federal statute that was enacted by the U.S. Congress to stop the removal of Indian children from their communities. The justices of the Supreme Court heard arguments in Brackeen on November 9 — so that’s more than 211 days of waiting on a case that has drawn attention from every corner of Indian Country. Nearly 500 tribes and 50 inter-tribal organizations signed onto briefs, defending the legality of ICWA against an attack from conservative state officials and their non-Indian allies. “That was the biggest effort we have ever done with the Tribal Supreme Court Project,” attorney Melody McCoy, a citizen of the Cherokee Nation who works for the Native American Rights Fund (NARF), said of the united defense of ICWA. Since 1978, tribal governments have relied on ICWA when asserting their sovereignty in child welfare proceedings, from adoptions to foster home placements. But as Treppa pointed out, opponents are attempting to dismantle what is known as the gold standard in child welfare by claiming that ICWA is based on race — instead of the nation-to-nation relationship between tribes and the U.S. that’s been enshrined in federal law and policy for more than two centuries.
“The Brackeen decision,” McCoy noted at NAFOA’s conference in Washington, D.C.,” is going to be a real litmus test about what this court — which is unlike any other court we’ve had, at least in our lifetimes — what it really thinks about tribal sovereignty.” Yet Brackeen, in which the United States government has strongly defended ICWA, isn’t the only cause for concern as the Supreme Court winds down its current term. Decisions are pending in two more Indian law cases that implicate tribes and their inherent rights. “We’re at a real crossroads,” attorney Riyaz Kanji, who over the last two decades has worked on some of the biggest Indian law cases at the high court, said at NAFOA’s event in April. The justices heard arguments in Arizona v. Navajo Nation on March 20 so it’s been more than 81 days of waiting for a ruling. Questions focused on another precious resource — water and who gets to access it in light of treaties that promised the Navajo Nation a forever home in the Four Corners region of the American Southwest. As with Brackeen, the biggest opponents in the case are the state governments in Arizona, Nevada, California and Colorado. But unlike the situation with ICWA, the U.S. is also opposing the Navajo Nation’s effort to secure a share of water for the Colorado River, which has been stressed to the core by non-Indian populations in the Southwest. “If we think historically, we have been experiencing disaster since the Europeans stepped on this land,” Chief Executive Melanie Benjamin of the Mille Lacs Band of Ojibwe told NAFOA, where she serves as secretary of the organization’s board.
According to President Joe Biden and his administration, the federal government cannot be held accountable for failing to secure enough water for residents of the largest reservation in the country. Dozens of tribes and tribal organizations, along with spiritual practitioners on the Navajo Nation, signed onto briefs to call on the U.S. to live up to its trust and treaty responsibilities. “We helped coordinate nine amicus briefs that Navajo Nation wanted in support,” McCoy said of the Tribal Supreme Court Project, which is a joint effort of NARF and the National Congress of American Indians, the largest inter-tribal organization in the U.S. The third Indian law case on the docket is Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. Arguments took place on April 24 — so the wait hasn’t been as long — but the dispute presents an issue that will be decided by the Supreme Court for the very first time. Tribal governments aren’t mentioned anywhere in the U.S. Bankruptcy Code. But a non-Indian consumer who voluntarily entered into a loan agreement with the Lac du Flambeau Band of Lake Superior Chippewa Indians argues that the tribe can be sued in federal bankruptcy court without its consent.
According to Supreme Court precedent, a tribe can be sued when it voluntarily waives its sovereign immunity for certain proceedings. Alternatively, Congress can abrogate tribal sovereign immunity — but such an action must be taken in a “clear” manner. “The Code defines a governmental unit as the United States, a state, commonwealth, district, municipality or foreign state,” attorney Christine Swanick said at NAFOA’s conference on April 24. “It goes on to say in the definition, it’s an instrumentality or department or agency of any of those things. And then at the end of the definition, it says: or other foreign, or domestic government.” “Now, I ask you, I ask the audience, do you see see the word tribe? Do you hear me say tribe in that definition?” Swanick continued. “No,” members of the audience replied. “No, right? No, no,” Swanick affirmed. “Tribe is not in the definition of governmental unit.”
Despite the lack of “clear” action from Congress, the Biden administration is once again going against tribal interests. Even though the federal government is not a party to Lac du Flambeau Band, the Department of Justice went out of its way to submit a brief in the case, arguing that tribal sovereign immunity has been “unequivocally” abrogated by U.S. law. The Biden administration went even further. After claiming to be “committed to a policy of supporting tribal self-government and self-determination,” government attorneys asked for time to argue on April 24 — a request that was granted by the Supreme Court. “This scares me quite a bit,” Kanji said at NAFOA’s meeting. “We are typically in the business of arguing to the court that, yes, tribes are governments, tribes are sovereigns.” But Kanji said that justices who are “more hostile to tribal interests” could undermine the careful positions that Indian Country has advanced in support of their inherent rights. “If they use language that is broad enough, it could actually hurt in other contexts where we’re arguing about tribal sovereignty and governance,” he noted.
As the air quality in D.C. was considered “Hazardous” and unsafe for outdoor activities, the Supreme Court on Thursday released four more opinions from cases heard during its current term, which began in October. The justices are expected to use the remaining three weeks in June to issue decisions in pending cases, including the three Indian law disputes. According to statistics maintained by SCOTUSblog, a publication that provides comprehensive coverage of the Supreme Court, the justices have heard 60 cases since last October. Of the workload, Brackeen is among the oldest without a decision. Historically, tribes have had to wait the longest for decisions that affect their interests. The high court’s last major sovereign immunity case, Michigan v. Bay Mills Indian Community from 2014, took more than 175 days to resolve.
And in one unprecedented situation in 2019, the Supreme Court forced Indian Country to wait until the very end of the term for an answer in a closely-watched sovereignty case from Oklahoma — only for the justices to delay resolution until their next session. It then took another year for the historic ruling in McGirt v. Oklahoma, which itself wasn’t issued until the second week of July 2020, marking a rare instance in which the court didn’t finish up its work in June. “There are well organized companies, individuals, attorneys that are focused on us,” Chairperson Treppa said during a panel discussion at NAFOA’s conference on April 24. “And we have to to be aware of that.” “We should not be naive about what we do and how we act,” Treppa said of situations that can result in tribes before the Supreme Court. “So we have to be very, very careful about that and be responsible in our actions,” Treppa concluded.