The Supreme Court, on holiday today, resumes public hearings tomorrow after a mid-term recess. Tuesday’s hearings focus on the rights of Native Americans. One case deals with tribes’ authority to operate gambling enterprises, the other is a test of constitutional protection of individual tribal members from being tried twice for the same criminal acts.
The “live” audio (no video) can be heard at the Quick Links on the Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
First case: Ysleta del Sur Pueblo v. Texas The hearing starts at 10 a.m., scheduled for one hour.
Background: Some of the sorriest chapters in U.S. history tell of mistreatment of the people who were in this country first, known variously as Indians, or Native Americans (sometimes now included among Indigenous Peoples). Pawns of public policy ever since the American colonists looked covetously at Indian lands across the Appalachians, they have been pulled between assimilation and segregation, tribal termination and restoration, assurances of civil rights and yet targets of discrimination, betrayed by a shameful list of broken treaties.
From the Indian Removal Act of 1830, leading to the infamous Trail of Tears for the Cherokees, to the recommendation in 1949 by a study commission headed by former President Herbert Hoover to compel the complete integration of Indians into American society, to the joint efforts of Congress and the Eisenhower Administration in the 1950s to withdraw protected legal status for thousands of individual Indians and the removal of 2.5 million acres of tribal lands from federal guarantees, Indian policy has ranged from the punitive to the paternalistic to the benign, and today remains volatile and quixotic.
With few resources of their own, and little industry, tribes long have been among the poorest of the nation’s poor.
Officially protected by the Constitution, their tribal sovereignty and their rights held in trust for them by the federal government, the 574 federally recognized tribes of today are almost constantly locked in legal warfare, most often with state governments, occasionally even with their legal guardian, the federal government.
No part of life on the reservations has produced more legal strife than the reach of tribes for financial salvation in gambling enterprises – beginning with a bingo facility near Fort Lauderdale, Fla., set up in 1979 by the Seminole Tribe. From then on, gaming has grown to be a multi-billion-dollar tribal business, with 224 casinos now operated by more than 150 tribes.
Even while gaming has rescued some tribes from deep poverty, it also has contributed to their long struggle to overcome stereotyped images. The casinos on tribal lands are mocked as greedy enterprises, flirting with mobsters, catering to the lower classes. Some tribal leaders worry that Indian gaming may so mar the reputation of Indian enterprise that it will increase political pressure to withdraw the tribes’ protected status – a punitive response for which there is ample historical precedent.
Phil Stago, Jr., a White Mountain Apache tribal member, once spoke of the image problem this way: “It’s unfortunate, but the national and international images of Indian people seem to be focused on one or the other of two major stereotypes – the museum image, which is trapped in the 19th Century, and the gaming image, which is much less flattering, mostly artificial, and becoming more predominant.”
Because regulation of gambling is traditionally a matter for state government, and because state governments – like the tribes – have regarded games of chance as a rich source of revenue, state governments from the start have energetically challenged Indian gaming.
The Supreme Court has played a major role in these conflicts. In a ruling in 1987 in a California case involving the Cabazon Band of Mission Indians, the Court ruled that if a state allows some gambling in the state, it cannot prohibit tribes from conducting their own version of that gaming, independent of state regulation. Only Congress, the decision said, could authorize states to control such tribal activity, and it had not done so.
Responding to that decision, Congress stepped in. Relying upon its constitutional power under Article I to “regulate commerce with the Indian tribes,” it enacted in 1988 the Indian Gaming Regulatory Act. Its key provision required state governments and Indian tribes to negotiate “in good faith” to set up compacts over how gaming on reservations would be regulated.
When Florida’s Seminole Tribe sued to force the state of Florida to negotiate with it over a gaming compact, however, the Supreme Court stepped in again. In a 1996 decision blocking that lawsuit, the Court ruled that Congress could not use its power over Indian affairs to override the states’ Eleventh Amendment immunity to being sued without their consent.
The first case to be heard on Tuesday brings gaming controversy back to the Court. It is a test of the authority of the state of Texas to regulate gaming on a Pueblo reservation, after the tribe there had its federally recognized status restored in 1987. The tribe primarily operates its gambling activity at the Speaking Rock Entertainment Center, a casino near El Paso.
For several years, the state of Texas has been attempting to stop that casino from offering bingo by electronic machines and other forms, claiming that the state has authority to regulate those on the reservation, even though state gaming laws do not flatly prohibit those forms.
The Pueblo have been trying to head off that regulation. The tribe contends that federal law and Supreme Court precedent only allow a state government to forbid gambling in forms that the state itself prohibits statewide. The kinds of gambling in dispute, it argues, are not banned across Texas. Lower federal courts, however, have several times ruled for Texas.
The tribe’s case is now back at the Supreme Court. The federal government, asked by the Supreme Court for its view on the dispute, said the tribe’s argument is correct, so the Court should grant review and rule for the tribe.
The question before the Court: Under federal law, does a state government have the authority to control the types of gambling carried out in Indian tribal casinos, if the state does not ban those types statewide?
Significance: Revenues from on-reservation gaming activity provide the financial sustenance upon which many tribes across the country rely. Challenges by state governments to those activities continue to raise basic issues over tribal sovereignty, limit tribes’ capacity for self-government, and may restrict their chance to become self-sufficient economically.
Within tribal communities, and among advocacy organizations supporting them, there has long been a desire to end the image of tribes as dependent “wards” of the federal government. Their stature as self-reliant economic entities is closely related to their long-term fear of losing their cultural identity – that is, what it means to be Indian.
The reality is that the entire federal regime for regulating gambling on the reservations has proved, year in and year out, to be an irritant to many state governments, and a disappointment to many of the tribes. This case is a new attempt to get clarity.
Second case on Tuesday: Denezpi v. United States The hearing, scheduled for one hour, will begin at about 11:30 a.m., after the conclusion of the tribal gambling hearing.
Background: History as far back as ancient Athens and the Roman Republic recognized the principle known today as “double jeopardy” – no person can be punished twice for the same crime. It has been a part of the U.S. Constitution since 1791: among the Bill of Rights, the Fifth Amendment declares that no person shall be “twice put in jeopardy…for the same offence”.
But it has also been true, since at least 1922 and maybe as early as 1847, that the Supreme Court has read into those words an exception: it is not “double jeopardy,” the Court has said, if the same conduct is punished under separate laws, one state, one federal.
The basic theory is that each sovereign government decides for itself what crimes to punish, so the inquiry is whether two prosecutions, one after the other, can be traced to independent governing origins. That is the “dual sovereignty” exception, and the Supreme Court strongly reaffirmed it as recently as June 2019, by a vote of 7-to-2, rejecting a direct plea to overrule that doctrine.
But the case now before the Court tests whether prosecution by an Indian tribe and then by the federal government have independent origins.
The concept of Indian tribes as sovereign ”nations” can be traced back to colonial America and a British proclamation in 1763 that formally recognized tribal rights, especially land ownership. That idea was adopted by the colonies in the Northwest Ordinance of 1787, enacted by the Continental Congress before there was a new U.S. Constitution. The doctrine was first formally acknowledged, under the Constitution, by the Supreme Court in 1831.
Indian tribal sovereignty arises in the Court tomorrow in the context of criminal trials. Indian tribes have one of two kinds of courts to try members of the tribe for crimes committed in “Indian country” – that is, on a reservation, or in an area under tribal control.
Lesser crimes are prosecuted in a so-called “court of Indian offenses.” First established in 1882, those tribunals once were the dominant form for punishment of tribal members for tribal crimes. Most tribes now have tribal criminal courts, with greater powers, and gradually those have displaced “Indian offense” tribunals for most tribes. There are now only five of those Indian offense courts remaining.
Crimes involving tribal members are also sometimes subject to federal prosecution. That is the situation in Tuesday’s Supreme Court case. It is an appeal by Merle Denezpi, a member of the Navajo Nation, who was convicted of sexually assaulting a female companion on the Ute Mountain Ute Reservation in Colorado. He was prosecuted in that tribe’s Court of Indian Offenses; he was found guilty and sentenced to 140 days in prison.
Six months after he was released, a federal grand jury in Colorado charged Denezpi with one count of sexual abuse “in Indian country” – a federal crime. Denezpi challenged the power to try him twice, relying on the “double jeopardy” clause of the Fifth Amendment. That argument failed, he was convicted in federal court and sentenced to 30 years in prison.
The question before the Court: If a member of an Indian tribe is convicted of a tribal crime before a Court of Indian Offenses, is it unconstitutional to try that individual again in federal court for the same criminal conduct?
Significance: Given the extreme disparity between the punishments that Merle Denezpi received in the two trials, the outcome is, of course, of profound importance to him and to others similarly convicted.
But because there are only five of the Indian offense courts left among the tribes, the wider significance of his case is what it will lead the Justices to say about how tribal sovereignty is defined and how that relates to governing institutions on the reservations. It is a fact that, among all the legal briefs filed in the case by other tribes or by Indian advocacy organizations, all are opposed to Denezpi’s argument and in favor of the “dual sovereignty” principle.
On Wednesday, the Court will hold a hearing in a single case, an appeal by 13 states seeking to revive a Trump Administration ban on entry of poor people into the U.S. because they will need welfare benefits. That policy has been abandoned by the Biden Administration.