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Kolby KickingWoman 
Indian Country Today

Each term, the Supreme Court of the United States hears around 80 cases a year. Two or three of which deal with federal Indian law that carry an impact across Indian Country.

The court recently heard two such cases back-to-back, each dealing with unique aspects of Indian Country.

While cases that make it to the highest court in the country are very technical, Indian Country Today will give a short explainer on what each is about.

In other Supreme Court news, the court also agreed to hear another major case related to Indian Country in Texas v. Haaland. The case will review the 1978 federal law that is seen as the golden standard for child welfare policy, the Indian Child Welfare Act.

(Related: Supreme Court to review ICWA case)

A statement from the National Indian Child Welfare Association said this is a coordinated attack on Native children and a blatant attempt to undermine tribal rights.

“The far-reaching consequences of this case will be felt for generations,” the statement said

Ysleta Del Sur Pueblo v. Texas

The core of this case deals with whether or not federal law or state law applies to the tribe’s operation of bingo style gaming. Further, whether this type of gaming the tribe takes part in falls under the framework of the Indian Gaming Regulatory Act or if Texas has a special system that would hold control.

Under the Texas constitution, all gambling is banned unless given specific authorization and the Ysleta Del Sur Pueblo operate a casino near El Paso.

Several of the justices honed in and asked questions about the look of these “bingo-syled machines,” asking on multiple occasions if to a normal person they look like slot machines.

One of the lawyers representing the tribe, Brant Martin, said no, whereas the state of Texas falls on the other end of the spectrum.

“I would say it looks like an electronic bingo machine that has a bingo card,” Martin said.

When further pressed by Chief Justice John Roberts, Martin explained the specifics that while there may be lights and reels, it carries the characteristics of bingo.

“Well, there's actually a card and you can actually switch the cards by pushing a button to change the cards that you're playing,” Martin said.

When asked similar questions during his oral argument on behalf of the tribe, Anthony Yang, assistant to the U.S. solicitor general, further laid out how Congress has codified these aspects.

“I can tell you that bingo has three primary characteristics. These are actually codified in IGRA. Congress has recognized that these are the three primary characteristics,” Yang said. “One, you have a card bearing numbers or designators. Two, you cover those numbers when they are drawn or somehow identified. And you win by covering an arrangement of numbers.”

The state of Texas, simply put, does not see it in the same light.

“They are slot machines,” the Principal Deputy Solicitor General of Texas Lanora Pettit said. “They do not have the competitive aspect of bingo.”

As with all Supreme Court cases, there are more complex and intricate issues at play dealing with previous decisions by the court, as well as state and federal laws that have been enacted over the years.

Denezpi v. United States

The second case heard deals with a conviction of Merle Denezpi, Navajo, through a Court of Indian Offenses, also known as CFR Courts. He was subsequently prosecuted in a federal court for the same charge which he claims violates his fifth amendment right to be free of double jeopardy.

At the heart of the case is whether or not CFR Courts are tribal courts that exercise tribal authority or if they are federal courts.

These courts were set up by the federal government to help provide tribes that are either too small or lack the financial resources to set up a tribal court to prosecute crimes that occur on its reservations.

On “ICT Newscast with Aliyah Chavez,” Stanford law professor Elizabeth Reese, Nambe Pueblo, said these courts have been common since they were enacted.

“So this is something that was a lot more common in earlier parts of our history before sort of the renaissance of tribal sovereignty that's really enabled so many tribes to take back control over their court systems and build up courts themselves, but some tribes for various reasons, usually because they are too small or financially, still make use of these CFR courts,” Reese said.

Arguing on behalf of Denezpi, Michael Kimberly said that even though the former was tried on an offense for violating tribal law, he was tried by a federal prosecutor in the Ute Mountain Ute Court of Indian Offenses.

Conversely, Erica Ross, assistant to the Solicitor General, argued that the tribe made the sovereign decision to prosecute Denezpi in the aforementioned CFR Court and the subsequent prosecution did not violate his fifth amendment right to be free of double jeopardy.

After listening to both arguments, Reese said they are both tricky cases and it’s difficult to predict where the justices will land in their rulings.

“The justices were clearly trying to think through very complicated parts of the arguments that the tribal advocates, state advocates and the Federal advocates were bringing to the table,” Reese said. “So I really don't know how they're going to come out.”

A ruling on the cases is expected before the end of the current term in June. Audio of the cases can be replayed on the Supreme Court website

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