Turtle Talk

It was a busy 2018 Term at the Supreme Court. Here are the top cases (although the top case is not a Supreme Court case):

1. Brackeen v. Bernhardt — This has to be the top case, even beating out three Supreme Court cases. Foundational doctrines of Indian law are at stake, state governments are facing off against the United States, and virtually every Indian tribe has affirmed support for the Indian Child Welfare Act. After expedited briefing and argument, the Fifth Circuit reversed a decision striking down ICWA. Now the court will rehear Brackeen en banc.

2. Sharp v. Murphy (formerly Carpenter v. Murphy) — This case captured the attention of Indian country more for the procedural drama (never thought those two words would ever go together) than the merits. A death penalty appeal in which the parties (state, tribe, guy-on-death-row, and US) barely mention that fact, Murphy is a reservation boundaries case that makes for exciting, if not accurate, media (Oklahoma could return to Indian reservation status!). The parties sparred at oral argument, the Court asked for more briefing, the This Land podcast went national, the end of the Term approached, and then . . . nothing. The apparent 4-4 tie of the justices led the Court to push the case to the next Term, and then more nothing. Now the Court has granted cert in McGirt v. Oklahoma, likely to decide the same issues as Murphy but with a full complement of judges.

3. Herrera v. Wyoming — The Court ruled 5-4 that the 1868 treaty right to hunt on unoccupied lands applied to the lands of the Bighorn National Forest. The Court also conclusively overruled Ward v. Racehorse, an ancient decision holding that statehood could abrogate treaty rights.

4. Washington State Dept. of Licensing v. Cougar Den — The Court ruled 5-4, but with no majority opinion, that a treaty right to travel on highways preempted a state tax on fuels moving through grounds transportation (or alternatively, granted a right to move goods without state interference).

The rest of the cases are lower court matters ranked by number of views on Turtle Talk. Here they are:

5. Williams v. Big Picture Loans — The Fourth Circuit ruled that tribal sovereign immunity applies to tribally owned businesses that conduct internet lending operations.

6. Swinomish Tribe v. BNSF — This case is pending before the Ninth Circuit. It received outsized attention because of an order by the panel to BNSF requiring it to explain how its characterization of legal authorities, the record, and the arguments of the tribe met its duty of candor to the court.

7. Free v. Dellinger — This case in the Western District of Oklahoma sought an order enjoining tribal jurisdiction over a nonmember. The case likely received a bunch of hits because that nonmember was Kalyn Free.

8. Davilla v. Enable Midstream Partners — The Tenth Circuit last January ordered the defendant to remove a pipeline from Indian lands.

9. Spurr v. Pope — The Sixth Circuit affirmed tribal court jurisdiction to issue a civil PPO against a nonmember under the 2013 VAWA tribal jurisdictional provisions.

10. FMC Corp. v. Shoshone-Bannock Tribes — The Ninth Circuit affirmed tribal jurisdiction over a nonmember, confirming a tribal court judgment involving millions. FMC was represented by a noted SCT practitioner, so expect a serious Supreme Court challenge in 2020.