After pondering the issue for more than three months, the Supreme Court on Monday appeared to have cleared the way for states to tax the income of members of Native American tribes living on reservations. The Court’s action could affect those living on Indian enclaves in as many as 35 states.
The Court acted in a two-word order, with no explanation and no indication that any Justice had dissented, leaving the exact impact of its action unclear until states and lower courts react to it with new laws and new cases. Since the Court’s action closed only a single case in one state, the issue could return to the Justices in the future.
The order left undisturbed a $7,600 income tax that the state of Oklahoma had imposed on Alicia Stroble, a member of the Muscogee (Creek) Nation, who lives in a house she owns in the small city of Okmulgee, located within the tribe’s reservation lands. Her income is from her salary as the secretary for the tribe’s governing body. After losing a challenge last year in state court, she asked the Supreme Court to review.
The fact that the Court simply denied review, after listing it for consideration at nine of its private discussions, was a considerable surprise, for these reasons: the state had conceded that the dispute was important, there is a split among lower courts on the question, there had been a strong dissent in the state court, her appeal was supported by a wide array of Native American tribes and groups, and her appeal was filed by one of the Court’s most widely respected lawyers, former U.S. Solicitor General Elizabeth B. Prelogar. The Court seldom pays that much attention toa case and then simply opts to pass it up.
At its most negative potential impact for tribal members, the Court’s action may have sent a signal that some of the Justices might be ready to abandon a flat, “categorical rule” that the Court has applied for a half-century. That rule has barred any state from taxing a Native American living on a tribal reservation – unless Congress has given explicit permission for the tax. There are now 574 officially recognized tribes, concentrated in Midwest and Western states.
Overall, the Court’s doctrine in the wide field of Native American law has been in flux since the arrival on the bench of new Justices, especially the three appointed by President Trump. One of those three, Justice Neil M. Gorsuch, has turned out to be one of the most fervent supporters of Indian and tribal rights, while another – Justice Brett M. Kavanaugh – has become a strong supporter of states’ power over their Indian residents.
Six years ago, Gorsuch led a 5-to-4 majority in ruling that the Creek Nation’s reservation occupying must of the eastern part of Oklahoma had never been cancelled by Congress, and thus remained officially as “Indian country.” That ruling nullified a state court conviction of a tribal member – a historic victory for tribal sovereignty.
However, two years later, in 2022, Kavanaugh led a new 5-to-4 majority in ruling that the Creek reservation, while remaining intact, was still inside Oklahoma’s borders so the state government shared with the federal government the power to prosecute on-reservation crimes, at least when the accused person was not an Indian but the victim was.
Because both of those rulings focused on criminal law, they created new questions about what would happen to state powers to enforce their non-criminal (civil) laws. That was the question that Alicia Stroble’s income tax challenge then raised, leading ultimately to Monday’s brief order by the Court closing that case.
Might there be some explanation for why the Court had dwelled on the appeal, and then put it aside? One potential explanation is that some Justices read the facts in the case as narrow, not establishing any new doctrine.
Another might be that, as the state of Oklahoma had done multiple times before and did again in Stroble’s case: it asked the Court to overrule the 2000 decision that Justice Gorsuch had authored, a ruling that had opened anew the whole question of the reach of Native American law. By saying nothing at all on Monday, the Justices bypassed that request, again, but some of the Justices might have thought that that question would have to be addressed if they agreed to review Stroble’s appeal.
When the Court refuses to hear a case, as it has complete discretion to do, and it has no duty to explain itself.
The Court’s next opportunity to sort out how laws apply to those accused of crimes on Indian reservations could come when the Justices act on a newly-filed appeal by the Trump Administration. That case, too, involves a member of the Muscogee (Creek) Nation in Oklahoma. It involves the assault by a tribal member on a tribal police officer during a protest rally outside the federal courthouse in Tulsa – a court that is located within the Creek reservation boundaries.
Beyond the criminal law area, the Court may act within the next few months on an important case involving the rights of tribal members to equal opportunity, under federal civil rights law, to seek election to seats in the state legislature. Tribal members lost seats in the North Dakota legislature after districts were re-drawn. The legal question is whether the tribal members can sue in federal court to challenge the new election boundaries.
