Tuesday, January 11, 2005

Supreme Court takes action on Indian law cases

The U.S. Supreme Court rejected two Indian law cases on Monday as it began another round of arguments without the presence of Chief Justice William Rehnquist.

Without comment, the justices refused to hear Peabody Coal's lawsuit seeking to force the Navajo Nation into accepting a lower royalty rate for a valuable coal deposit. The 9th Circuit Court of Appeals last June dismissed the case, a victory for the tribe.

In a separate action, the justices declined a challenge to the Indian Gaming Regulatory Act brought by three Wisconsin tribes who want to open an off-reservation casino. The 7th Circuit Court of Appeals ruled last April that a provision in the law allowing the state governor to veto the proposal was constitutional and did not violate the trust responsibility.

The actions came as the high court returned to work after its annual month-long winter break. Five days of oral arguments are scheduled for this month, including City of Sherrill v. Oneida Indian Nation of New York, a case involving the the city's attempt to tax ancestral land repurchased by the tribe.

Rehnquist is not expected to participate in the argument for that case this morning due to his ongoing treatment for thyroid cancer. He hasn't been seen in the court since October, when word of his health condition was first made public.

On Friday, a court spokesperson announced that the absence would continue "[b]ecause of continuing secretions caused by his tracheotomy and radiation therapy." The statement added that Rehnquist "will continue to read briefs and transcripts of oral arguments, participate in conferences, and vote on cases."

Previously, the court said Rehnquist would not vote in a string of cases he missed in November unless there was a tie. The list included a self-determination contract dispute being closely watched throughout Indian Country. Oral arguments were held on November 10, with a ruling expected in the coming months.

It is not clear whether Rehnquist's scaled-back participation will affect the Oneida Nation case or the self-determination case. They are the only Indian law cases that have been accepted so far during the court's current term.

But Rehnquist's absence has fueled speculation about his possible retirement. If that happens, President Bush would be able to nominate a new member of the court as well as a new Chief Justice.

For Indian Country, the Rehnquist court has not been a kind one. His two-decade career on the bench has been marked by the erosion of tribal sovereignty, most notably in civil and criminal jurisdiction over non-Indians.

"The Rehnquist court's decisions, meandering from the settled principles and approaches embraced by all its predecessors, have created a judicial atmosphere that threatens economic development efforts as well as the political and cultural survival of Indian tribes," David H. Getches, a University of Colorado law school professor and noted Indian law expert, said in February 2002 testimony in the Senate.

Tribes have taken a more active role before the court ever since the 2000-2001 term, when tribal interests lost four out of five cases. The National Congress of American Indians and the Native American Rights Fund formed the Tribal Supreme Court Project to monitor developments, submit briefs and help coordinate cases nationwide.

The project submitted briefs in the Oneida Nation and self-determination cases, as well as a crucial criminal jurisdiction case during the 2003-2004 term. NCAI President Tex Hall has said the tribes' participation is "working" because the jurisdiction case was decided in favor of tribal interests.

Today's hearing will last one hour, during which lawyers for the Oneida Nation and the city of Sherrill will present their case. Four questions [ PDF] are being presented for review, including whether the tribe ceased to exist.

The Department of Justice, whose brief supported the tribe, has been granted permission to participate in the argument.

Relevant Links:
Supreme Court - www.supremecourtus.gov
NARF-NCAI Tribal Supreme Court Project - doc.narf.org/sc/index.html
Supreme Court blog - www.goldsteinhowe.com/blog

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