Indian Law in the Next Supreme Court Term: Grants and Pending Applications

The United States Supreme Court may have the opportunity to address a number of Indian law issues in its next term starting October 2018. To date, the Court has granted certiorari in Royal, Warden v. Murphy, No. 17-1107, an appeal from the Tenth Circuit Court of Appeals. In Murphy, the Tenth Circuit ruled that the State of Oklahoma did not have jurisdiction to prosecute Mr. Murphy for murder.1 The result in Murphy was based on the application of the three-part test established in Solem v. Bartlett2 and its progeny to determine whether a reservation has been disestablished. Chief Judge Tymkovich issued a strong dissent suggesting the Solem test was inoperable in the context of Oklahoma’s unique history. After receiving a number of amicus briefs3 supporting the petition, including an uninvited brief by the United States, the Supreme Court granted the State of Oklahoma’s petition for certiorari, which presented the question: “Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an ‘Indian reservation’ today under 18 U.S.C. § 1151(a).”

While Murphy is the only Indian law case granted to date, a number of petitions for certiorari are pending before the Court. In a second reservation diminishment case involving the Solem analysis, Wyoming v. United States Envtl. Prot. Agency,4 the Tenth Circuit held that Congress diminished the Wind River Indian Reservation in 1905. The Wind River Indian Reservation is home to two Native American Tribes, and both filed petitions for certiorari: the Eastern Shoshone Tribe and the Northern Arapaho Tribe. No. 17-1159. The Tribes seek reversal of the Tenth Circuit’s diminishment opinion. In contrast to Murphy, the United States filed a brief opposing the petitions for certiorari, arguing the Tenth Circuit correctly applied Solem.

Another petition for certiorari out of Wyoming raises a unique question of whether a 1868 treaty with the Crow Tribe of Indians prohibited state criminal jurisdiction over a tribal member exercise hunting rights guaranteed by the treaty. The petitioner was hunting within the reservation boundaries, when the animal he was hunting crossed into the Bighorn National Forest, where it was killed. The petitioner was convicted for a state law misdemeanor. Seeking review of an unpublished district court opinion, the petition in Herrera v. Wyoming, No. 17-532, asks whether the treaty right to hunt on the “unoccupied lands of the United States” survived Wyoming’s entry into the United States. At the Court’s invitation, the United States filed a brief encouraging the Court to grant the petition for certiorari.

Treaty rights are also at issue in Makah Indian Tribe v. Quileute Indian Tribe and Quinault Indian Tribe, No. 17-1592. The petition for certiorari seeks review of an opinion of the Ninth Circuit Court of Appeals5 that held the treaty that granted the Quileute and Quinault Indian Tribes fishing rights included the right to hunt whales and seals, in a geographic region that coincided with that of the Makah Indian Tribe. The Makah Indian Tribe is seeking reversal of the Ninth Circuit’s treaty interpretation. The response brief is due June 25.

Federal arbitration law, the Indian Gaming Regulatory Act, and preemption of state taxation are at issue in Citizen Potawatomi Nation v. State of Oklahoma, No. 17-1624, which seeks review of a Tenth Circuit opinion reversing an arbitration award.6 An arbitrator resolved a dispute between the Nation and the State regarding sales of alcoholic beverages in the Nation’s casinos and whether those sales were subject to State taxation, in the Nation’s favor. The Tenth Circuit reversed, refusing to apply the Federal Arbitration Act. The Nation seeks review of that decision. The response to the petition is due in early July.

The final Indian law petition up for consideration is Osage Wind v. Osage Mineral Council, No. 17-1237, a case considering whether developers of a wind energy development project required a mining lease from the Osage Minerals Council.7 Two questions are presented: whether the Tenth Circuit Court of Appeals erred by ruling it had jurisdiction over an appeal filed by the Osage Mineral Council, who had not participated in the district court proceeding instituted by the United States; and whether the Tenth Circuit erred by applying the Indian canon of construction where the statute and regulation being interpreted governed the mineral and surface estates in Osage County, both of which were created to favor members of the Osage Nation. The Court recently asked the United States for its views, and will consider the petition after the United States’ brief has been filed in coming months.


1 875 F.3d 896 (10th Cir. 2017).
2 465 U.S. 463 (1984).
3 Modrall Sperling filed an amicus brief in support of the petition on behalf of the Environmental Federation of Oklahoma, Inc., Oklahoma Cattlemen’s Association, Oklahoma Farm Bureau Legal Foundation, Mayes County Farm Bureau, Muskogee County Farm Bureau, Oklahoma Oil and Gas Association, and State Chamber of Oklahoma.
4 875 F.3d 505 (10th Cir. 2017).
5 873 F.3d 1157 (9th Cir. 2017).
6 881 F.3d 1226 (10th Cir. 2018).
7 Modrall Sperling represents the petitioner in this case. The Tenth Circuit’s opinion is reported at 871 F.3d 1078 (10th Cir. 2017).

POSTED IN: Articles