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2023 SCOTUS Update: Federal Indian Law

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2023 SCOTUS Update: Federal Indian Law

For more than 30 years, the win-loss record for tribal interests at the United State Supreme Court was dismal. Since 2018 however, tribal interests have been on a remarkable winning streak in the United States Supreme Court. But what is the continuing outlook for tribal interests at the Supreme Court? This program will analyze past cases decided by the Supreme Court and consider what they might portend for the future as well as providing a thorough analysis of the Haaland v. Bracken decision. The program will benefit tribal attorneys, practitioners of federal Indian law, and other attorneys who wish to learn more about federal Indian law.

Transcript

Hello and thank you for joining me today for this 2023 SCOTUS Update on Federal Indian Law. I'm Chloe Thompson Villagomez and I'm a partner in the Seattle office of Foster Garvey, and I represent tribes and tribal enterprises, and I've been doing that since 2005. And I'm a graduate of the University of Minnesota Law School. Our learning objectives today are first to recognize the historic nature of the US Supreme Court's recent Indian law decisions. Second, to analyze the most recent Indian law decisions issued by the Supreme Court. Third, to predict what the outlook might be for pending and future Indian law cases at the Supreme Court. For the period of 1986 to 2001, tribal interests at the Supreme Court fared worse than those of convicted criminals who were convicting who were appealing their convictions. So tribes had, out of approximately 40%, 40 cases decided by the court. Tribal interests had a 23% success rate, whereas convicted criminals had a 36% success rate. And tribal interests also fared progressively worse over this time period. As the late David Getches, whose work this is based on, testified to the Senate Committee on Indian Affairs in 2002. Nobody does worse in this Supreme Court than Indian tribes. For the period of 2001 to 2017. And this is based on my own estimations. Things got a little bit better, but not that much. So there were barely half the cases, half the Indian law cases decided during that time period. So there were approximately 21 cases in these 16 years versus approximately 40 in the previous 15 years. And the issues were really kind of all across the board during this time period, ranging from federal trust, responsibility, tribal sovereign immunity, land into trust, tribal civil jurisdiction. Et cetera. Still, during this time period, tribal interests had only a 33% success rate. So you can see that here it's a little bit better, but still not as good as the convicted criminals. There is a significant development. Well, what I think is significant development during this time period, however, and that is that Justice Sotomayor is confirmed in August of 2009. And she's been quoted as saying that she actively studied Indian law when she got on the Supreme Court, going back to the very beginning and trying to understand the foundational principles of Indian law. And so I think that her efforts to develop a more a better understanding of Indian law are going to prove significant. Then during the period of 2018 to the present, we see a dramatic shift. And I think a big part of that is Justice Gorsuch, who was confirmed in April of 2017. And he does not participate in Lewis v Clark, which is the only Indian law decision of the 2016 to 2017 term that was not favorable to tribes. But the court has issued 15 Indian law decisions now since then and for quite a while, for a number of years, actually, tribal interests actually were at 100% success rate during that time period. I do leave out of my analysis the Yellen versus Confederated Tribes case just because primarily because there's there were arguably sort of tribal interests on both sides. There were federally recognized tribes in the lower 48 on the one side, and then Alaska native village corporations on the other side. So I leave that one out of my analysis. Also. It was just very specific case. And so it doesn't tell us a whole lot. So I leave that one out of my analysis. But during that time frame up until castro-huerta in 2022, tribal interests had prevailed 100% of the time. So that's a really, really dramatic shift. As you can see, there are still a low number of cases, though a low number of Indian law cases. Only about 2 to 3 Indian law cases per term is what we're averaging. And even after Custer worked though tribes, you know, we still have an 85% success rate. So Castro-huerta really was a significant loss, but there have been significant wins as well. So McGirt, which preceded Castro-huerta, was a very significant win. And then Brecheen, which just came out recently, was also a significant win. And so out of the other 14 cases besides Yellen versus Confederated Tribes, tribes have lost only three still. And so it's still, as I said, an 85% success rate, which is a huge difference from what it's been for decades previous to this. So really significant shift. And so we're going to talk a little bit about the the recent cases. I'm just going to skim over some of the 2018 to 20, 2021 cases and focus more on on the most recent cases. But the where you start to see this shift is really in 2018 to 2020 with a series of treaty rights decisions. And so the first of these decisions was Washington versus United States in 2018, which is part of the long, long standing treaty rights litigation in Washington state. But this this sub proceeding is known colloquially, colloquially as the culverts case. And so in that case, it's a judgment of the Ninth Circuit that's affirmed by a divided court. So there's actually no opinion. But I still think that the the affirming in itself is is significant. And so that that what was affirmed was that Washington violates treaties by building and maintaining culverts that impede fish passage. And so the court says the Ninth Circuit and the lower court says that the the state must correct the culverts. So that's a significant decision. The next one. And the rest of these are actual decisions by the Supreme Court. So the next one is Washington State Department of Licensing versus Cougar Den in 2019. And in that case, the court found that a Washington fuel tax cannot be imposed on a wholesale fuel importer that's owned by a tribal member who transports fuel from Oregon to the reservation on public highways. So because the Yakama nation has a right to travel in there and a right to trade in their treaty, they and this fuel is just going directly from Oregon to the reservation. Washington is not able to impose its tax. Then Herrera versus Wyoming in 2019. In that case, the court found that Crow Tribe treaty hunting rights survived. Wyoming statehood, which has been sort of a recurring question. And then Bighorn National Forest land was not categorically occupied such that treaty rights might not be able to be exercised on that land. They didn't decide affirmatively whether or not it was occupied or unoccupied, but they did decide that it's not categorically occupied. And then finally, the big one was McGirt versus Oklahoma in 2020. And in that case, the court found that Congress never disestablished the creek reservation. And so Congress or the court, rather, reaffirmed that the the test for abrogation of of treaty rights or in this case, disestablishment requires a clear expression of congressional intent and only if language is ambiguous. May courts look to extratextual sources to shed light on the meaning of the language at the time of enactment. Because previously there was there had been a couple of cases that sort of shed or cast some doubt on whether that, you know, the whether that was still clearly the standard. And so McGirt really clarified that, yes, this is this is still the standard. So any abrogation of treaty rights has to be very clear. And by Congress. But then after that, the question became, can this winning streak continue? So the coalition for Cougar Den Herrera and McGirt was Gorsuch, Sotomayor, Kagan, Ginsburg and Breyer. But then the loss of Ginsburg in 2020, followed by the retirement of Breyer in 2022, called into question whether this better direction for Indian law cases could continue. And what made it a little bit more difficult to predict was that neither Barrett nor Jackson, who were the justices that replaced Ginsburg and Breyer, neither of them previously had any notable Indian law experience, and so it was hard to say how they would rule in Indian law cases. Also, most of the 2018 to 2022 decisions, as you saw, were treaty rights cases. And I think that those cases tend to lend themselves well to some of the conservative justices tendencies towards textualism and originalism. You know, I think it it makes it a little bit easier for them to look at some of the language and just apply the actual language as it was understood at the time, because that's in line with their judicial philosophies. And so for me, you know, at the time, I was wondering, you know, how what what are the results going to be when we when we see some other types of Indian law cases that are that are not treaty rights cases? And so, you know, it was it felt very uncertain, at least to me, at that time. So our first kind of hopeful signpost, the loss of Justice Ginsburg, was actually in 2021. And in that case, the court held that a tribal police officer has the authority to detain temporarily and to search a non-Indian on a public right of way that runs through an Indian reservation. And that had generally already been the status quo for years, that tribal police officers have that authority. But the reaffirming of it by the Supreme Court is definitely helpful. The interesting thing is that, well, there are a couple of interesting things. So first, it was a unanimous decision. And so that's why I say this. This case kind of did give some some hope after the loss of Justice Ginsburg that potentially this, you know, this better direction for tribal interests could continue. So that was significant that it was unanimous. And then an interesting aspect of it is that it applied the second Montana exception to reach its result. Now, Montana is a civil case that basically establishes a presumption against tribal civil jurisdiction, with two exceptions. And the second exception is for conduct that threatens or has some direct effect on the political integrity, economic security or health or welfare of the tribe. And the court has previously suggested that there's a really high standard for applicability of that second exception. So it's this the fact that the court applied Montana in this case is interesting in two ways. First, because it is a civil case and this is a criminal case. And so it's interesting to see Montana being extended into the criminal context. And then second, because this situation here, which involved a traffic stop, doesn't necessarily seem to rise to that high level that the court had previously suggested for applicability of Montana. Second exception. And yet the court says that this situation fits the second exception like a glove. And so, you know, I think potentially it will be interesting to see if that can have some impact into application of the of Montana. Second exception in civil context going forward as well. It could it could potentially be helpful. So finally, the other significant thing about this and I apologize, I'm a bit under the weather today, so my I have a little bit of a cough. But the the other interesting thing about this case is that it's the first Indian law decision in which Justice Barrett participates. Next we have Dennis versus United States in 2022. And this is Justice Barrett's first Indian law opinion. And she's joined by Roberts, Thomas, Breyer, Alito and Kavanaugh. And so this is something that you'll you'll be seeing throughout that we sometimes are seeing slightly strange bedfellows in these cases where here you have Justice Breyer aligned with all, you know, a number of the more conservative justices. So that's rather interesting In this case, Gorsuch dissents and he's joined by Sotomayor and Kagan as to parts one and three of his dissent. This case is a criminal law and constitutional law case. It involves a question of double jeopardy. And the issue is, is the court of Indian offenses of the Ute Mountain Ute Agency, a federal agency such that Merle Denise's conviction in that court barred his subsequent prosecution in the United States District Court for a crime arising out of the same incident. And the reason this is a question. So it's long been understood that tribal courts and federal courts or tribes and the federal government, I should say, are are separate sovereigns. And so there's no double jeopardy issue there. They could both prosecute the same defendant for essentially, you know, crimes arising out of essentially the same incident. But the reason this is a question here is because courts of Indian offenses are creatures of federal law. They're created under federal regulations. And so there's this federal overlay to it. And so that's why the question arose in this case. And I will say that the impact of this case is somewhat limited because there are really only about five or a handful or so of these, what are known as CFR courts left in the United States. Most most tribes have moved to having their own tribal courts, not not operating CFR courts any longer. So the impact is somewhat limited. And the court held no, that this single act led to separate prosecutions for violations of a tribal ordinance on the one hand and a federal statute on the other hand. And because the tribe and the federal government are distinct sovereigns, those offenses are not the same. And so the second prosecution did not offend the double jeopardy clause. Next we have Ysleta del Sur Pueblo versus Texas in 2022. And this is an opinion by Gorsuch. And he is joined by Breyer, Sotomayor, Kagan and Barrett. So another example of some combination of combination of justices that you might not necessarily expect to see. Then we have a dissent by Roberts, and he is joined by Thomas, Alito and Kavanaugh. And the area of law is gaming. And the issue here is whether this Pueblo's Restoration Act, which was a piece of legislation specific to this Pueblo and it referenced Public Law 280, which is a 1950s era statute that. That granted certain jurisdiction in Indian country to certain states. And so it references public law to 80. It contains Cabazon like language. And Cabazon is a case from the 80s that interpreted public law to 80 in the gaming context and whether public law to 80 granted states jurisdiction to enforce their gaming laws against tribes. And because the court held that as long as the statutes are, the state laws are civil or regulatory in nature, that they cannot be enforced against tribes that essentially didn't necessarily give birth to. But it really sort of lit the spark for the Indian gaming industry. So this restoration Act contained that reference to public law to 80. It contained Cabazon like language, and it was passed only six months after Cabazon. And so the issue is whether that Restoration Act, with all those Things considered, provided the Pueblo with sovereign authority to regulate, regulate gaming activities on its lands that are not prohibited by the state. Because if something is. Totally prohibited. And it's it's really a criminal statute, then potentially it is enforceable under public law to 80 and a caps on analysis. But as long as it's not prohibited such as bingo in this case, then does does the Pueblo have the sovereign authority? And the Fifth Circuit had previously held that that all state law applied, including even state regulations. But here the court says in accordance in accordance with Cabazon, the Restoration Act bans as a matter of federal law on tribal lands only those gaming activities that are also banned in Texas. And so essentially, the court just applied a straight up Cabazon analysis, and the result was the same as it would have been under Cabazon. And I think the court that probably seemed to the court as really the only option, because I know that they at oral argument, the justices, a number of the justices really kind of seem to struggle with, you know, how would we sort of apply this if it were different than than Cabazon? So not entirely a surprise that it came out the way it did. But again, this is a case of limited impact because it's very specific to this one tribe and its Restoration Act. It doesn't have much broader applicability to other tribes throughout the country. And then meanwhile, as all of this is going on in Oklahoma, we have the governor of Oklahoma and the state of Oklahoma repeatedly bringing challenges to the McGirt decision up through the courts. And and they're they're just bringing multiple, multiple cases up through all the levels of the courts. And they've you know, they're petitioning for cert in in numerous cases. And you can see here that there they're actually going out looking for people's stories or how they've been impacted by the McGirt decision. So this is actually just a screenshot from their website asking people to tell their stories about the McGirt impacts of the McGirt decision to the governor. So all of this is sort of happening in the background. And so then we get to Oklahoma versus Castro Huerta, which is one of these cases brought up through the courts by the state of Oklahoma. And this this comes out in 2022. And here the opinion is by Kavanaugh. He's joined by Roberts, Thomas, Alito and Barrett. So no real surprises there. Gorsuch dissents and he's joined by Breyer, Sotomayor and Kagan. And the area of law here is criminal jurisdiction. And the issue is whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country. And notably Oklahoma also sought to present the question of whether McGirt should be overruled. But the court limited the grant of cert to the first issue. So in this case and this this one is certainly more significant. And it was it's definitely a. Disappointing loss. So The Court And it's again, Kavanaugh writing for the court, essentially turns a fundamental principle of Indian law that I think all Indian law practitioners thought we had understood, which is that states lack jurisdiction in Indian country absent a congressional grant of jurisdiction. And he basically turns that on its head and states instead that the default is that states have criminal jurisdiction in Indian country unless that jurisdiction is preempted. And so the court then goes on to consider and reject various bases for preemption, including the General Crimes Act and Public Law 280. The court then applies a balancing test to determine if the exercise of state jurisdiction is preempted because it would infringe on tribal self-governance. Government and a balancing test essentially balances the interests of the federal government, the state government and the tribal government to to determine whether a state law can apply in Indian country. And this application of the balancing test in this case is both significant and troubling. I think, first of all, because, again, this is a civil standard from a civil case, not a criminal case. And so, again, we're seeing this sort of bleeding over of these civil tests into the criminal context. And I think that is sort of always problematic. And the bracker balancing test, in my opinion, is problematic anyway because it's so. Fact based and case specific, and that makes the outcome of the balancing test. Unpredictable. And you generally want to see more certainty in the law. And then especially in the criminal context, context, I think it's problematic because it really makes things uncertain for criminal defendants who should be able to know what, what their rights are and what the likely outcome of something is. And so I think that is both. Significant and troubling that that the court applied the balancing test in this case. And the court concluded that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. And so it reverses the judgment of the Oklahoma Court of Criminal Appeals and remanded the case for further proceedings, not inconsistent with the opinion. So this was, as I said, definitely a disappointing loss. Gorsuch author, authors, a highly critical dissent. And you can sort of sense his frustration because in a sense, you know, this this decision is is somewhat attacking and undermining his decision or the opinion he wrote for the court in McGirt. And so it's sort of, you know, attacking his baby, essentially. And so you can see by the quote here, you know, kind of how critical he was. And, you know, one of the sort of key phrases is truly a more ahistorical and mistaken statement of Indian law would be hard to fathom. So that's pretty harsh criticism in the Supreme Court context. He does suggest that the court's decision to apply a balancing test might actually work in Tribe's favor because it requires a case specific analysis and so thus could limit the applicability of this decision, despite the court's statement that it applies throughout the United States. You know, it sort of felt like the court was really wanting to sort of rub it in there. But the court actually made that point that it applies throughout the United States. But Gorsuch suggests that actually because of the way that the the analysis of the case, it could actually be more limited than that. And then he also, which I thought was really interesting, he goes so far as to suggest a legislative fix and even provide possible language for the legislative fix. So I thought that was really sort of an interesting thing that you don't see every day for sure. So this decision has been widely condemned in Indian country, and I think it'll still take some time to see the extent of the fallout from this decision. But it's important to recognize what this decision does not do. So first of all, it does not impact tribal criminal jurisdiction. It is only. Pertains to state criminal jurisdiction. It doesn't change the extent of tribal criminal jurisdiction. It also doesn't permit states to exercise criminal jurisdiction over Indians in Indian country. It only applies to non-Indians in Indian country, and it doesn't overrule. Mcgirt And so you know that to the extent that was a concern, you know, before the court decided to limit the grant of cert, and even after that, you know, it doesn't overrule. Mcgirt This is still Indian country. The tribes still have the same degree of criminal jurisdiction they had before. So, you know, it's not quite as harmful as it might seem at at first glance, potentially. Um, the creation of a presumption in favour of state jurisdiction unless Congress has preempted it is definitely a concern for future cases. And it'll be, uh, I'm concerned to see if the court applies this in other contexts because remember, this currently is just in the criminal jurisdiction context, so it's somewhat limited, but it is definitely concerning. And then the application of the bracker balancing test also raises concerns, as I mentioned previously. There has been talk of a possible castro-huerta. Legislative fix, but that has yet to materialize. And I'm not waiting with bated breath because as some of you may recall, there was lots of talk about a Carcieri fix, but that decision came out in, I think, 2009, and we still have yet to see a Carcieri fix. So, you know, it's possible, but nothing has yet to materialize. And then any legislative fix also probably would not address the problematic presumption that this case stated or the balance the application of the balancing test. The legislative fix would probably be focused mostly just on the. The issue of jurisdiction specifically. So it wouldn't necessarily fix all of the potentially harmful aspects of this decision. But before too long, we had cause for celebration with Holland versus Brackeen. And these next three cases that I'll be talking about just came out, you know, a matter of weeks ago in mid to late June of 2023. So they're they're quite recent. And Holland versus Brackeen was one that was being watched with a lot of concern. And so the fact that it came out in favor of tribal interests is definitely cause for celebration. Um, so just a little bit of background about the Indian Child Welfare Act, which is what was at issue in Holland versus Brackeen. The Indian Child Welfare Act was enacted in 1978 in response to alarming rates of removal of Indian children from their families and tribes. And those rates could be as high as 25%, possibly more, of children. Indian children were being removed from their homes. So consider the impact of that on a community and a culture. Uh, and a lot of these removals resulted from cultural misunderstandings. So, for example, often in tribal communities it can be common for extended family relatives to take care of children. But the state officials and state courts might view that as like abandonment or neglect. Um, you know, you could have potentially families living in poverty on reservations and at the time that could potentially be grounds for removal of children as well. It's no longer supposed to be. But even even so, I think it can play a factor sometimes. Um, you know, another example is that Indian children are sometimes born with sort of darker areas on their lower backs. And so sometimes that state officials might think that those were bruises or something like that. So there were all all kinds of reasons that that children could be removed that were not valid and that were the result of cultural misunderstandings. And so Icwa sought to remedy that problem, that really high rate of removal of Indian children in various ways. And some of the ways were by setting certain standards for the removal of children from their homes. So the the standard for removal under Icwa is clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. So as you can see, that's that's quite a high standard for removal and then for termination of parental rights, that finding has to be beyond a reasonable doubt. So an even higher standard. And so that that helped to. You know, raise the standard for these things happening in the first place and also require expert witnesses. So that could help to eliminate those types of cultural misunderstandings that I was mentioning earlier. It also requires notices to parents, custodians and tribes. It requires active efforts to provide services and prevent the breakup of Indian families. And then it establishes placement preferences for Indian children who are removed from their homes. And those placement preferences are designed to keep Indian children with their families, you know, their extended families or with their tribes within the tribal community. And tribes can modify those preferences if they wish. You know, they could say they could establish a different, different order of preferences. But again, this this helps to keep children within the tribal community. And, you know, you might look at that and think, you know, this this really sounds like it's in the best interests of the children and the tribes and the communities. And I think that it is. But there have been sustained and coordinated attacks on Icwa for more than a decade now. And this case, I think, was the most serious challenge yet. And it potentially even posed an existential, existential threat to Indian law as we know it, because it raised equal protection challenges. And if you think about all of the statutes that exist pertaining to Indians, they they often treat Indians differently. And Indians are differently situated. I mean, they they are, you know, sovereign nations that pre-existed the Constitution and that we're not parties to the Constitution. And so they are just politically different. And they they are, you know, sovereigns within the the sovereign of the United States. And so they they do have a different status. And they especially when they are in their Indian country, they they are politically different than others. And so but the concern was that, you know, if if if an equal protection challenge to Icwa were to prevail, then what might be the possible impacts on other legislation pertaining to tribes? And so that was a really serious concern. And I think there was widespread concern in Indian Country about what the outcome of this case would be. The case was decided, as I said, in mid-June, June 15th, 2023. The opinion was by Barrett, and it's joined by Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh and Jackson in her first Indian law case. So really strong majority opinion there. And then there are concurrences by Gorsuch, who's joined by Sotomayor and Jackson as to parts one and three of his concurrence and by Kavanaugh. And then there are also dissents by Thomas and Alito. And as I said, the area of law is Indian Child Welfare Act. And there are also constitutional issues involved. And I'm going to skip over this more technical listing of the issues because there's a little bit easier to understand version coming up. But the the technical version is here if you would like to reference it. So this case involved numerous constitutional challenges to Icwa brought by adoptive or prospective adoptive parents of Indian children who also intend to foster or adopt Indian children in the future. And, you know, to me here, there are sort of echoes. Some of these parents are doing this out of sort of religious conviction, it seems. And so to me, there are echoes here of sort of the history of trying to, you know, assimilate Indian. Children and Indian people. And so definitely some historical. Concerning historical echoes here of people who seem to be wanting to sort of adopt Indian children as some sort of. You know, mission or something like that. The opening line and I always kind of pay attention, pay attention to opening lines of cases because sometimes, especially in the Indian context, it really tells you where what the result of the case is going to be. And so the opening line in this case is this case is about children who are among the most vulnerable, those in the child welfare system. And so right away, I think this this. Told me that the Court and Justice Barrett were going to be focused on the best interests of the children. So I thought that that was a good sign, although it's not necessarily determinative because sometimes those those on the other side of these issues will argue that, for example, if a child didn't have a strong connection with its its Indian family and it has been with a non-Indian adoptive family for a number of years, they might argue that the best interests of the child are to stay with the adoptive family. So it's not necessarily determinative, but I thought it was a good sign that the court was going to be focused on the best interests of the children one way or another. And you can compare that to the opening line of Adoptive Couple versus Baby Girl, which was a 2013 Icwa case in which Justice Alito started. The opinion with this case is about a little girl who is classified as an Indian because she is 1.2% or three out of 256 Cherokee. And there you can see that he's really trying to sort of minimize her Indian identity and sort of you just can tell where he's going to go, that he's going to say, you know, this is this this shouldn't apply to this child or et cetera. So I did think it was a I was cautiously optimistic at reading the opening line and turns out the case it it was in favor of tribal interests. The court concluded that the bottom line is that we reject all of petitioner's challenges to the statute, some on the merits and others for lack of standing to go into a little bit more detail. So here's the a little bit more understandable statement of the issues. So petitioners challenged Icwa as unconstitutional on multiple grounds. They asserted that Congress lacks authority to enact Icwa and that several of Icwa's requirements violate the Anti-commandeering principle of the 10th Amendment, which we'll talk about in a moment. They argued that Iqua employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children. And they challenged Section 1915 C, which is the provision that allows tribes to alter the prioritization order on the grounds that it violates the Nondelegation doctrine. The District court granted petitioner's motion for summary judgment. A divided panel of the Fifth Circuit reversed, and then the Fifth Circuit reheard the case en banc and affirmed in part and reversed in part. And the Fifth Circuit's decision was just sort of a monster. It was like like over 100. I don't even remember how many it was huge decision and just sort of a mess. It was kind of all over the place. So definitely a challenging decision to digest. But here the court looks at these issues in turn. So the first issue is essentially, does Icwa exceed Congress's Article one legislative power by intruding on the state's authority over domestic relations? So essentially they were arguing that Congress should not be legislating on matters of domestic relations because those are the province of the states. But the court says no, the Indian Commerce Clause, Article one, Section eight grants virtually all authority over Indian commerce and Indian tribes to Congress. And then the court also points to the treaty clause, which I found a bit questionable because there really aren't treaty issues at play here, but also power implicit in the Constitution and the trust responsibility. The court says that while the regulation of domestic relations lies primarily with the states, Congress can preempt state law. And the Indian Commerce Clause includes authority to legislate with respect to individual Indians, not just tribes, and encompasses Indian affairs, not just commerce. So. And we'll I'll talk a little bit more about kind of the positives and negatives of that in in a moment. But the next issue was, does Icwa violate the 10th Amendment by requiring the states to do various things? And the court says no. So the 10th Amendment reserves to the states or to the people powers that are not delegated by the Constitution. And so this bars Congress from commanding the states to administer or enforce federal regulatory programs. And that's the Anti-commandeering principle here. The court says that the requirements are not directed exclusively at states, but may apply to private actors as well, which typically does not implicate the 10th Amendment. And additionally, the court says that the placement preferences don't require anyone to search for alternative placements. They just require application of the preferences and also says that the valid laws of the US are supreme even if they conflict with state law. And then finally, the court says historically the federal government could impose adjudicative tasks, including ancillary record keeping tasks on state courts. And so the various record keeping requirements that Icwa imposes on state courts also do not violate the Anti-commandeering principle. Notably, the court does not reach, first of all, the equal protection challenge to Iowa's placement preferences. Or second of all, the Non-delegation challenge to the provision allowing tribes to alter the placement preferences. So The Court. Says that no party has Article three standing to raise these claims. And just to refresh our memory of Article three standing to establish standing, a plaintiff must show that he suffered an injury. In fact, that is concrete, particularized and actual or imminent, that the injury was likely caused by the defendant and that the injury would likely be redressed by judicial relief. And here the court says that the racial discrimination that the individual petitioners allege counts as article as an Article three injury, but the Redressability requirement was not met. And I will note that that statement that the racial discrimination counts as an Article three injury is a little bit concerning to me just because. To the extent that it could portend sort of approaches towards future equal protection challenges, because it's it's long been understood and was held by the Supreme Court in the case of Morton versus Mancari, that, you know, tribal. Essentially, membership in an Indian tribe is a political classification, not a racial classification. And so that's why, you know, all of the statutes pertaining specifically to Indians don't violate equal protection because they're not based on racial. Racial characteristics that are based on political classification. So for for her to to say that, you know, I don't know if that just reflects that that's the language that the the petitioners were using or if she's sort of assuming for the purposes of of determining standing that it if it were racial discrimination, it would count. But nonetheless it's it's a short comment, but it is somewhat concerning to me. So the the individual petitioners seek an injunction that prevents the federal parties from enforcing Icwa and a declaratory judgment that the challenged provisions are unconstitutional. But they haven't shown that their claimed injuries are likely to be redressed by judicial relief. So that's why the Redressability requirement is not met, because the state officials who implement Icwa are not parties to the lawsuit and would not be bound by the injunctive or declaratory relief sought. And then the court says that Texas also lacks standing because it has no equal protection rights of its own and it does not have standing as parents party to bring an action against the federal government. And so tribal interests prevail, which again, was was a significant relief throughout Indian country. And I think that the reaffirmation of Congress's power to legislate with respect to Indians is generally good. Some of the discussion about the breadth of Congress's power to legislate is a little bit concerning. But the court does reiterate that it's not absolute. And the reason I say that it's a little concerning is just because this this concept of sort of plenary power or Congress having this somewhat broad power to legislate with respect to Indians, even if it's not plenary power, you know, it's sort of a double edged sword, right? Because there are aspects of paternalism to it and sort of federal control over tribes. And it's been used in the past in very negative ways, such as with the allotment acts, which resulted in the loss of millions upon millions of acres of land for tribes. And then similarly with termination acts which actually terminated the federal government to government relationship with certain tribes. And and in a sense, you know, I mean, they can't really terminate the tribe's existence, but it really significantly impacts the tribes existence. And so it's been definitely been used for bad in the past. And so that is a little bit concerning. On the other hand, the positive aspect of it is that generally, you know. Where Congress has this power, then state ability to intrude in Indian affairs is correspondingly limited. And there is also there also should be a federal trust responsibility to tribes that corresponds to this idea of like plenary power or some type of broad other other type of broad legislative authority. So it's sort of a double edged sword. And that's why I say it's kind of a good and bad to see this. You know, it's good to see the reaffirmation of the power to legislate. The discussion about sort of the breadth of it is a little bit concerning. But notably, the majority did not actually hold that it was within Congress's Article one authority or that it does not violate the 10th Amendment. Essentially, they just said, you know, the petitioners did not make their case this time. So it sort of does potentially leave some things open for the future. And then similarly with the equal protection challenges which were rejected on the basis of standing, it's certainly a relief that they didn't prevail. But it is concerning that these questions remain open for another day. So that's kind of where we stand after Holland versus Brackeen. It's, you know, it was a success. It was definitely a relief, but it didn't necessarily end these issues once and for all. They're largely still open for the future. And I will talk a bit about Gorsuch's concurrence just because I think it's really significant. So he he wrote a 38 page concurrence which says that the court here safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties. He says that the court also goes a long way toward restoring the original balance between federal, state and tribal powers the constitution envisioned. And I think that's a quite a significant line and sort of to me seems to be a key to understanding his approach to Indian law cases. And I think it's sort of what many of us have long suspected was was his approach. But here he's he's coming right out and saying it, that he his vision is to restore that original constitutional balance between federal, state and tribal powers, which, you know, would would put tribes in a significantly stronger position if that were the case. Of so unsurprisingly, given his history with Indian law cases so far in the court, he writes separately to add some historical context. That's what he's really big on, is providing extensive historical context in every Indian law case. And in this case, he provides a bird's eye view of how our founding document mediates between competing federal, state and tribal claims of sovereignty. And then he proceeds to tell the story of Icwa, which reaches back to the 1800s and pulls no punches. So, for example, he notes that, you know, that the federal government affirmatively tried to eliminate the reciprocal affection that existed between Indian parents and Indian children and to dissolve Indian families. He acknowledges that the purpose of the boarding schools was to kill the Indian and save the man, and that, as far as I can tell, has never appeared in any other Supreme Court opinion or concurrence or dissent. And it's appeared in very few lower court opinions. And so that's something that's rarely acknowledged. And yet here we have a Supreme Court justice just putting it right out there. So that that's I thought was significant. He describes the abduction of children, Indian children historically, although I did notice that he didn't mention that it was often at gunpoint historically. And then he also describes the rampant physical, sexual and emotional abuse disease, malnourishment and overcrowding of the Indian boarding schools. So, you know, I think having that all out there in a in a Supreme Court concurrence is quite significant. And then about 12 pages in, he articulates his view of the Indian law bargain struck in our Constitution. And so, again, I think this is really significant to see sort of it's really the first time he's he's so clearly laid out sort of his overall Indian law philosophy, I think. And so he says Indian tribes remain independent sovereigns with the exclusive power to manage their internal internal matters. As a corollary of that, sovereignty, states have virtually no role to play when it comes to Indian affairs. To preserve this equilibrium between tribes and states, the Constitution vests in the federal government a set of potent but limited and enumerated powers. In particular, the Indian Commerce Clause gives Congress a robust but not plenary power to regulate the ways in which non-Indians may interact with Indians. And the highlighted or I guess, bold, bold and italicized provisions. Here are the ones that I really thought that really stood out to me and seemed particularly significant to me. So the first one, you know, referring to tribes as independent sovereigns is, is in contrast, I think, with the language that we typically hear from the Marshall trilogy of Domestic Dependent Nations. So it's it's, you know, independent sovereigns sounds more sovereign, right? So I thought that was somewhat significant. And then his point that states have virtually no role. You can compare that with Custer Huerta and with the majority opinion in this case. And it you know, it shows that he definitely has a different perspective on the role of states in Indian country. And then he does not believe that there's plenary power, that Congress has plenary power under the Commerce Clause. So he you know, he does acknowledge that it's a robust power, but it's it's not it's not without limits. It's not plenary. So that's significant as well. And then finally, just the way that he frames Congress, the nature of Congress's power. So, you know, he says it's to regulate the ways in which non-Indians may interact with Indians. So he's not even saying that Congress has the power to necessarily has the power to legislate and sort of control Indians. It's really about his emphasis is on the non-Indians and how they can interact with Indians. So all of those things I thought were really interesting and revealing about sort of his overall philosophy and approach to Indian law. And, you know, we'll see if he if he's able to. To bring other justices over to this this point of view. He does discuss at length the original balance of powers established in the Constitution. And he says that the court departed from that balance after what he calls a doctrinal misstep in United States versus kagama, which led to the concept of a plenary federal federal power over tribes. And he says that that error sent this court's Indian law jurisprudence into a tailspin from which it has only recently begun to recover. So I thought it was interesting to see him pinpoint exactly where he thinks the the Indian law jurisprudence went wrong. I would be interested, too, to know more about, you know, when and exactly where he thinks that it began to recover and, you know, kind of his views on how it's recovering. I thought that was really interesting. He notes that the idea of plenary power baked in the prejudices of the day. And that's what I was referring to before, where I noted that the plenary power has this negative aspect to it too, which is that it's rooted in paternalism and federal control over Indian affairs. And it's it's often been used to the detriment of tribes. So that's that's what he's referring to there with how it baked in the prejudices of the day. He describes the idea that Congress might have the ability to limit, modify or eliminate tribal government powers as inconceivable for anyone who takes the Constitution's original meaning seriously. And I thought that was significant as well, because, as I mentioned previously, Congress has in the past, for example, terminated tribes. It has limited tribes authority in certain ways. And so that is really interesting to see him say that that really should not be within Congress's authority. And then finally, he re-emphasizes that tribes retain inherent sovereignty and that Congress does not possess the power to calibrate the metes and bounds of that sovereignty. So just really interesting and significant discussion. I think, although it again, it you know, he's one justice and it remains to be seen whether he's able to sort of convince others to to adopt these viewpoints as well. Uh, again, he talks about how the court has recently begun to correct its mistake and that it is increasingly emphasized original meaning in constitutional interpretation. And I think that's kind of where. What we've been seeing in a lot of the recent cases that that have been in favor of tribal interests. He says that in the process, the court has come again to realize the Indian Commerce Clause provides the federal government only so much power to deal with the Indian tribes. But the court has yet to recover fully the original meaning of the Indian Commerce Clause, and he praises the majority for taking further steps in the right direction and acknowledging that Congress's history is not unbounded. And he says he hopes in time that the court will return to the original bargain struck in the Constitution and with it the respect for Indian sovereignty that it entails. Notably, Justices Sotomayor and Jackson do not join in that part of Gorsuch's concurrence. So that's why I say, you know, he he's really only one guy at this point. And he does need to to somehow convince the other justices of of the correctness of his viewpoint here. So he would go beyond the majority opinion and he would actually conclude that Icwa must stand, that the power to regulate domestic relations is within tribe's powers of self-government and that the regulation of non-Indian engagement with Indians is in the heartland of Congress's constitutional authority. And then he notes that mass removal of Indian children threatens tribes political existence. And he points out that there cannot be any Indian commerce if there are no Indian commerce, Indian communities left to to conduct that commerce with. So that's you know, he would he would go beyond the majority and actually decide some of these issues. And he concludes with, I think, this really great concluding paragraph. Often Native American tribes have come to this court seeking justice only to leave with bowed heads and empty hands. But that is not because this court has no justice to offer them. Our Constitution reserves for the tribes a place, an enduring place in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting states of authority over Indian affairs and by giving the federal government significant but limited and enumerated powers aimed at building a lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please. The right of Indian children to grow in their culture and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution's original design. So that's one of the sort of. Characteristic Gorsuch. The quotes. And we've got also Kavanaugh, who joins the court's opinion in full. But he writes separately to emphasize that the equal protection issue remains undecided, and he believes it is serious. And so, again, that just emphasizes the concern that this issue does remain open and that, you know, you obviously have justices who. Probably would would would wish to hold against tribes on that issue. Thomas dissents because he believes that Congress lacks the power to regulate family law, and especially in the case of US citizens outside of Indian country, merely because children happen to be Indians, as he sort of repeatedly characterizes it. And he also doesn't recognize what he calls a free floating plenary power. And then Alito similarly dissents because he believes that family matters are core state functions and Congress's Indian affairs Power is not unbounded, and he thinks that Icwa conflicts with or maybe even as he puts it, runs roughshod over the best interests of the children. So the next case is Lac du Flambeau Band versus Coughlin. And this one was also decided on June 15th, 2023. It's an opinion by Jackson. It's her first Indian law opinion, and she's joined by Roberts, Alito, Sotomayor, Kagan, Kavanaugh and Barrett. So, again, a strong majority, again, a somewhat strange or unexpected, I guess, grouping of justices. You've got the concurrence by Thomas and a dissent by Gorsuch. The area of law here is bankruptcy and tribal sovereign immunity. And the issue is, does the bankruptcy code abrogate tribal sovereign immunity? So in this case Lundgreen, which is a lot of lumber or I'll call it LDF from here on out, an LDF business lent Coughlin $100. He filed for bankruptcy before repaying the loan, which filed the bankruptcy filing triggered an automatic stay against collection efforts. But Len Green, which is the business, allegedly continued its collection efforts. So Coughlin sought to enforce the automatic stay and sought damages and costs in the bankruptcy court against Len Green, its parent corporations and LDF itself. So the parties, which all sort of collectively refer to those as move to dismiss asserting tribal sovereign immunity. The bankruptcy code dismissed, but the First Circuit reversed finding that the bankruptcy code abrogates tribal sovereign immunity. And that added to the existing circuit split on the issue, which is presumably why the Supreme Court granted cert. It is well established that a waiver of tribal sovereign immunity must be express and unambiguous, not implied, or in this case, an abrogation of tribal sovereign immunity. But there are no magic words. So there's there are not these certain magic words that that Congress has to state in order to abrogate tribal sovereign immunity. In this case, 11 USC 106 A, which is part of the bankruptcy code, abrogate sovereign immunity for governmental units for purposes of numerous provisions of the bankruptcy code. Well, what is a governmental unit that is defined in 11 USC 101 27, which defines governmental unit as United States State, Commonwealth district, Territory municipality, foreign State Department agency or instrumentality of the United States. But not a United States trustee while serving as a trustee in a case under this title. A state, a commonwealth, a district, a territory, a municipality or a foreign state or other foreign or domestic government. And that last clause is the key here. So essentially the question is whether the tribe constitutes a other foreign or domestic government. And so the issue is whether these two provisions taken together unambiguously abrogate tribal sovereign immunity. And you might be wondering, why does this matter? If Section 106 A does not abrogate tribal sovereign immunity, then tribes can assert sovereign immunity against various things, such as the automatic stay adversary proceedings, involuntary bankruptcy proceedings. Et cetera. So there are various things in in the bankruptcy context where, you know, sovereign immunity could be an issue. And could be raised. So if Section 106 A does abrogate tribal sovereign immunity without specifically referring to tribes, then that potentially erodes the rule that requires any abrogation of tribal sovereign immunity to be clear and expressed. And it also potentially exposes tribes to various types of proceedings in the bankruptcy court, such as, you know, again, the automatic stay, which is not a proceeding, but adversary proceedings which are proceeding involuntary bankruptcy proceedings. Et cetera. So that that's why the outcome matters. The question is whether applying traditional tools of statutory interpretation, Congress abrogation of tribal sovereign immunity is clearly discernible from the statute itself. So that's a slightly, you know, new phrasing of this test. So clearly discernible from the statute itself is is the standard that the court applies here. And the court concludes that the bankruptcy court, the bankruptcy code, unequivocally abrogates the tribal sovereign immunity of any and every government that possesses the power to assert such immunity, which undeniably includes Indian tribes. And its reasoning is that the definition of governmental unit is strikingly broad, as the court puts it, and exudes comprehensiveness from beginning to end. The court notes that it also concludes with a broad catch all phrase, and this abrogation of sovereign immunity applies to all governmental units. It does not cherry pick. The court says that other aspects of the bankruptcy code reinforce its conclusion. So, for example, the bankruptcy code offers debtors a fresh start, so its protections generally apply to all creditors, with certain limited exceptions for governmental units. And carving out tribes from the definition of governmental unit would upset that balance. The court concludes that tribes are undisputedly governments but does not decide whether they are foreign or domestic governments. Given its holding that the bankruptcy court abrogates the sovereign immunity of all governments categorically. And so I think that's really the sort of the crux of it here is that phrase other foreign or domestic government, you know, is that just should that just be read as like one collective phrase? And so then tribes do fall within it, which is essentially what the court held or does the court have? Does. Would a tribe have to meet either be either a foreign government or a domestic government in order to fall within that definition? And so that would be sort of the the the flip side, the the alternative argument, which the court does not adopt and just says, no, you know, this phrase is just broad enough to encompass tribes and that's it. We're not going to decide and we don't need to decide whether a tribe is a foreign or domestic government. On the positive side, the court does reaffirm that sovereign immunity is a necessary corollary to Indian sovereignty and self-governance and is among tribes governmental powers and attributes. So that's that's a sort of a silver lining or a positive result from in this case. So this decision definitely will have practical effects on tribes, but its legal implications, I think, will likely be limited. And the reason for that is that the language in question here is admittedly quite broad. You know, I would have argued the other way and would have preferred the the outcome to be the reverse. But I you know, it is. The language is quite broad. And so the court's interpretation is not a huge, huge reach. And then also this outcome really just places tribes on the same footing as other governments, you know, in some contexts. The result, a result like this could end up with tribes being treated differently or worse than other governments. But here they're really just going to be placed on the same footing as other governments. So there's not sort of that element of of. Like an insult to tribal sovereignty to the extent that there might be otherwise, even though it does impact tribal sovereign immunity, which is an aspect of tribal sovereignty. You know, I do have some concern that this sort of clearly discernible test could be applied with more problematic results in other contexts. But I'm hopeful that the risk is somewhat limited by the fact that most other federal statutes that potentially give rise to this issue don't tend to use language that's as broad as that of the bankruptcy code. And I have a few examples here, such as a public agency employer under the Fair Labor Standards Act includes the United States, the states and agencies thereof, with the definition of state, including any state of the United States or the District of Columbia or any territory or possession of the United States. And so there that language is not doesn't appear to me to be as broad tribes. Traditionally are not considered to be territories or possessions of the United States. And so I don't think that language encompasses tribes, at least in my interpretation. So it's you know, it's not as broad as the language of the bankruptcy code. Similarly, states that are not immune under the Copyright Act include District of Columbia and the Commonwealth of Puerto Rico, and any territories to which this title is made applicable by an act of Congress. And so, again, I don't think that's broad enough to to include tribes. And another example is just the Americans with Disabilities Act, which is is similar. So, you know, I think potentially the impact of this case could be limited. But but we'll have to see. Here. Justice Thomas writes that he does not believe that sovereign immunity should extend to tribes off reservation commercial activities or really that tribes should have sovereign immunity at all. So he concurs on that basis. Gorsuch dissents on the grounds that the abrogation of sovereign immunity is not unequivocal because tribes are not actually mentioned and they are neither foreign or domestic governments. And so that's kind of what I was saying earlier, is that this would be sort of the alternative viewpoint. And, you know, the one that that I would have preferred to see be the outcome. But unfortunately, it was not. As usual, Gorsuch turns to history and he talks about the history of tribal sovereign immunity, the historical understanding of the political status of tribes. Et cetera. He also notes that tribes unique character makes their sovereign immunity not congruent with that of other sovereigns. And that's also generally understood that that tribal sovereign immunity is not necessarily coextensive with, for example, state sovereign immunity or potentially even federal sovereign immunity. So, you know, that's that's a very valid point that he makes there. And and he finally notes that Congress has not had trouble using language that clearly addresses tribes in other contexts. And so Gorsuch obviously would would hold that the bankruptcy code, bankruptcy code did not abrogate tribal sovereign immunity. The last case that came out also in towards the end of June is Arizona versus Navajo Nation. And that case involves. The nation's water rates, especially to the Colorado River, which, as you can see here, sort of forms, partially forms the. Western boundary of the reservation and and is integral to the reservation. So this one was decided June 22nd, 2023. The opinion is by Kavanaugh and he's joined by Roberts. Thomas. Thomas, Alito and Barrett. There's a concurrence concurrence by Thomas, a dissent by Gorsuch, again joined by Sotomayor, Kagan and Jackson. And the areas of law here are treaty rights, the federal trust, responsibility to tribes and water law. And the issue and this is kind of interesting because the way the majority states the issue is not actually the issue. So that and I don't that's kind of an unusual thing to say and see. I think so per the majority, the issue is whether the United States has an obligation to take affirmative steps to secure water for the Navajo Nation. In reality. And as Justice Gorsuch notes, you know, the issue is really more like this is a breach of trust claim against the United States for its failure to quantify or consider the nation's water needs and rights in the lower basin of the Colorado River. And it seeks injunctive relief requiring the US to stop breaching its trust responsibilities and protect the nation's water rights. There were also some additional statutory claims, but those were dismissed along the way for lack of standing. So the issue is is fairly limited here. The nation initially filed suit against the Department of Interior and then Arizona, Nevada and Colorado intervened to protect their interests in water from the Colorado River. So. Really no noteworthy here and important to see that. The Court again, this is Kavanaugh writing for the court actually recognizes and repeatedly recognizes that the Navajos treaty includes the right to use needed water on or bordering the reservation. So everyone is recognizing that there is a water right here. You know, that's that's not in question. Um, but says here the Navajo seek to require the United States to take affirmative steps to secure water for them. Uh, and. You know. So he says at one point, for example, and he kind of repeats certain aspects of this throughout. So but at one point, he says, for example, by assessing the tribe's water needs, developing a plan to secure the needed water and potentially building pipelines, pumps, wells or other infrastructure. But that is not actually what the Navajo Nation was seeking in this lawsuit, as I noted previously. They're not asking for any of that, you know, building of infrastructure there. They're also not asking for securing of the water rights. I mean, everyone acknowledges that the water rights exist. They just want the water. They want the federal government to. To quantify those water rights and tell them, you know, what, what its water rights are, what water rights the federal government holds in trust for the tribe and and to to help them protect them not, you know, they're not asking go out and get us water rights or go out and build us this infrastructure. But that's what the majority and Kavanaugh here suggests that that is really at issue. And so it's really something unusual to to see here this this sort of twisting of of the nature of the case, really. But so the court says that the federal government owes judicially enforceable trust responsibilities to a tribe only to the extent it expressly accepts those responsibilities by specific rights creating or duty imposing language in a treaty, statute or regulation. And Gorsuch's dissent explains that this this line of cases that this you know this. Principal comes from applies only to claims seeking monetary damages under the Tucker Act and the Indian Tucker Act. So really, that shouldn't be applicable here. But the court concludes that the treaty does not require the US to take such steps. So you know that that is. Problematic because again, you've got everyone recognizing that the nation has water rights here. And those are, I forgot to mention, but those are under the Winters Doctrine, which stands for the proposition that when a reservation is established, a tribe retains the right to water and possibly other treaty resources as necessary to accomplish the purpose of the reservation. So it's essentially, you know, the water rights, if they're not expressly stated in the treaty, they're implied because how could you survive without water, obviously. So you you need the water rights and they're considered to to just be retained as as necessary under the treaty. And so you've got this recognition by everyone that these water rights do exist, and yet you've got the court saying that the federal government has no responsibility here. So it's it's it really puts the nation and in a challenging position and potentially creates many future challenging situations as well. The court suggests that Congress could enact legislation to address the nation's water needs or the Navajos water needs. The court also acknowledges that the US opposed the nation's intervention in the Coldwater Colorado River water rights litigation, which could have enabled the nation to quantify and protect its water rights. But the court doesn't mention that the Navajo Nation was not permitted to intervene here. So again, you've got to ask, well, then what what what remedy is it left with? You know, it has these water rights that everyone recognizes. It's tried to intervene in previous litigation but was not able to. And now the court is saying that the the federal government does not have responsibility here. So it really just puts them in a very tough situation. The court also suggests that the Navajo could assert the interests that they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests. And the courts will then assess the Navajos claims and motions as appropriate. Again, you know, they have tried to do this in the past. So but as Gorsuch notes in his dissent, you know, with this language here after that, you know, it would be difficult for a court to then deny their intervention. So hopefully, maybe this could work to the nation's advantage in the future. So that language, I think, is a positive. And then also the clear recognition that the treaty does include water rights, clear and repeated, I should say that, you know, he restates it at least three times, maybe more. So it's a very clear recognition that there there are these water rights. They do exist. So those things are positive. It's also important to recognize that this case does not decide the nation's water rights. So I think some people might have initially thought that that was the case. That is not the case. It it definitely makes things more challenging, as I've as I've kind of explained. But it does not actually decide that the nation's water rights and also it it more or less leaves the Winters doctrine intact, which was also a concern that that this case might harm the Winters doctrine. But, you know, as as I've said, it really does leave the nation and potentially future others in a in a very tough place with having recognized water rights, but, you know, a difficulty in enforcing them or even quantifying them in the first place. So, again, a disappointing decision. Um, Justice Thomas concurs. In order to criticize the federal trust responsibility to tribes and the Indian law canons of construction. So as you can see in the last like throughout the last three opinions, basically, you know, in each of his concurrences, you know, he's criticizing some significant aspect of federal Indian law. So essentially, he wants to do away with all of Indian law. Um, Justice Gorsuch's dissent says that the majority has mischaracterized the issue that the nation simply wants the US to identify the water rights that it holds in trust for them and stop misappropriating them if applicable. And as usual, he begins with a lengthy history lesson and he states that treaty interpretation entails the application of familiar principles of contract interpretation. But then he does go on to discuss the Indian law canons of construction as well. But I thought that was interesting because this is sort of the second time that we've seen him sort of rely more heavily on just sort of standard principles of contract interpretation rather than the Indian law canons. And I'm kind of keeping an eye on that. I find it interesting. I'm not I'm not exactly sure yet, you know, what what implications that has. So but I'm keeping an eye on that because that's the second time I've seen him sort of lean more heavily on standard principles of interpretation rather than the Indian law canons of construction. Gorsuch says that Kavanaugh first misreads the Navajos request. Second, applies the wrong analytical framework, and third reaches the wrong result under that framework. So again, pretty strongly criticizing Kavanaugh like like he did in Castro-huerta. So he apparently frequently thinks that Kavanaugh is just dead wrong, which. I would tend to agree with in these instances. He also recounts the many attempts the Navajo have made to address their water rights, and he recognizes the trust responsibility. He notes that the court does not pass on other potential pleadings that the tribe might offer, such as those alleging direct interference with their Navajo, with their water rights. And indeed, the majority recognize that the Navajo do not contend that the US has interfered with their access to water. So that sort of suggests a potential future avenue that potentially the nation could pursue. He also states that it's hard to see how any court could deny a request from the Navajo to intervene in water rights litigation in the future. Based on this decision, and especially that language that I pointed out earlier. And then he concludes with sort of a typically, you know, vivid Gorsuch conclusion, as they did at Bosque Redondo. They must again fight for themselves to secure their homeland. And all of that must necessarily come with it. Perhaps here as there some measure of justice will prevail in the end. So that is the most recent Indian law case, and we don't expect another for a number of months now. So I think it's a good time to to, you know, revisit this presentation and look at the record and and also especially look at what might explain this really significantly improved win loss record, because even with the few losses that have been, you know, significant, but even with those few the win loss record, as as you saw towards the beginning of the presentation was it's a huge improvement over the past several decades. So I'm not entirely sure what explains it. I think one of the top things for me is this propensity of a number of the justices towards more towards textualism and originalism. I think that often is fitting well with, for example, treaty interpretations and things like that. So I think that in part explains it. I definitely also see a deeper reliance on historical background, especially from Gorsuch, but also from others. I mean, you're you're seeing it in a number of these Indian law decisions, even by the other justices as well, that they are really delving more into the historical background than they previously did. I think I'm also seeing evidence of a sort of more modern and practical understanding of Indian country. So you're often seeing justices cite to, for example, reports like very current reports from on the ground organizations in Indian Country and things like that. So they're they're sort of looking more at these the current practical implications and things like that. Definitely, Gorsuch does bring a more sophisticated, much more sophisticated understanding of Indian law to the court. And you've also got other justices like Sotomayor that were already working to develop that. And so I think that is a significant improvement from past compositions of the court. You know, some have said a justice being from the West, that would be Gorsuch could be significant. I think potentially it is. You know, I think most judges. Most justices tend to be from the East Coast, and so they just don't have a familiarity or an understanding of Indian country. And they just haven't likely haven't personally experienced it. And so that could play into it. But again, he's only won one justice. And so at this point, I do think I think that might partially explain where he's coming from, although I don't even think fully explains it for him individually. But it really I don't think explains it for the court as a whole. Others have suggested the tribal Supreme Court project has been effective, which is a project that sort of works to coordinate briefing and and and any cases that are going to the Supreme Court involving Indian law issues. Initially, I thought maybe that could be playing into it. At this point, I think it's more something within the court. And so I do definitely kind of lean towards that textualism, the originalism, the deeper reliance on the historical background and sort of the more current practical aspects. But, you know, I don't know that any of that fully explains it. And so I'm curious and I'd love to hear from other folks if they have ideas as to what what does explain this, because I think there may be still more to it. And I don't even fully understand, you know, how Gorsuch came to be the way that he is. But but I certainly appreciate it. So, you know, it definitely is interesting. And there I think there are probably multiple factors involved. And these are likely some of them. There may be others as well. So the takeaways are the recent winning streak for tribal interests was truly remarkable. After decades of dismal losses, Cougar Den Herrera and McGirt breathed new life into treaty rights cases. Mcgirt was particularly significant, and it will be cited for decades to come. If not centuries. After the loss of Justice Ginsburg, it became uncertain whether this winning streak could continue. Moreover, it was uncertain what the court's approach would be to issues other than treaty rights, but coolly, and the shifts in some justice's approaches to the more historical, more practical et-cetera at least initially, gave some hope to some reason, to hope that tribal interests could continue to prevail. The 3rd June 2022 cases didn't shed as much light as as we might have hoped on the future direction of the court. A number of them were were just very specific and not broadly applicable. But the fact that the justices did not always align along ideological lines did suggest that there is a possibility of some flexibility, which suggested the potential for continuing positive results. Behan Ysleta del Sur were both positive outcomes, but they were of limited relevance to most of Indian country and then Custer Huerta was quite concerning. But we did see Justice Gorsuch further cement his role as a staunch defender of tribal sovereignty. But then the question became, would he be able to win over Barrett or another conservative justice in future cases? The Brackeen case shows that tribal interests can still prevail, possibly with some frequency. I think that we are likely to continue to see some shifting alliances and strange bedfellows. We can count on Thomas, Alito and Kavanaugh nearly always being anti tribal interests, and I think that Roberts will often join them, although he doesn't seem quite as vehemently anti tribal interests as the other three. But he typically does align with them on those issues. I think that we can count on Gorsuch nearly always being pro tribal interests, but somewhat surprisingly, he'll sometimes stand alone as he did in in the LDF case. And that was not necessarily something I was expecting. I was expecting that he would typically be joined by Sotomayor, Kagan and Jackson, which I think that he often will be, but not always, as we've seen. And so I think that Barrett really is going to be the wild card, and she tends to go back and forth. And so her textualism will sometimes align well with Gorsuch's philosophy of a return to the original constitutional balance. And it just remains to be seen, I think, whether Gorsuch gets better at winning over the other justices and then which way Barrett swings, really, I think that's that's kind of the outlook that that we're we're facing here. Although it obviously will continue to develop as as we see more decisions come out. So that is that concludes my presentation for today. Thank you again for joining me. And you know, we'll keep our eyes on on the Supreme Court and its Indian law decisions. Thanks.

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