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U.S. Supreme Court decides cases without Rehnquist
Tuesday, December 14, 2004

U.S. Supreme Court Chief Justice William H. Rehnquist, whose two-decade career on the bench has been marked by the erosion of tribal sovereignty, will not participate in every case this term, the high court announced on Monday.

Rehnquist's battle with thyroid cancer forced him to miss two weeks of oral arguments in early November. At the time, the court said he would participate in the adjudication of those cases, including a self-determination dispute being watched by many tribes.

But yesterday the court issued a statement saying that Rehnquist will cast votes only to break a tie. However, he intends to participate in cases during another two-week period he missed, the court said. And he plans to return to work in January 2005, just in time to hear the Oneida Nation's treaty rights case.

Rehnquist's decision may or may not affect the self-determination case involving the Cherokee Nation and other tribes. In oral arguments on November 9, the justices appeared to be divided on the fairness of government contracts that shortchange tribes.

But the announcement adds to speculation that Rehnquist, 80, might soon leave the court. If that happens, President Bush would be able to do two things: nominate a replacement and nominate a new chief justices. Both actions require Senate confirmation.

The potential loss of Rehnquist would end a particularly troublesome era in Indian law. Since he rose to the chief justice position in 1986, tribes have watched as the court has blocked tribal authority over non-Indians, abrogated sovereign immunity, limited the religious rights of Native Americans and backed state governments in tribal disputes.

"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.

Yet a change in the court's makeup won't necessarily benefit Indian Country because Bush will undoubtedly nominate a conservative jurist to replace Rehnquist. On a court that frequently splits 5-4 or 6-3 on Indian law cases, a tilt to the conservative side could hurt tribal interests since the liberal-leaning members who most often side with tribe would be outnumbered.

The prospect of a new chief justice poses challenges as well. Justices Antonin Scalia and Clarence Thomas are often mentioned as a possible successors to Rehnquist. But Scalia's comments and opinions and Thomas' opinions aren't seen as kind to tribal rights.

"We have to listen to Justice Scalia characterize Indian tribes as peculiar, lesser sovereigns," observed Mark Van Norman, executive director of the National Indian Gaming Association, following a hearing in a tribal-state dispute.

For now, the court has been tight-lipped about Rehnquist's future, refusing to comment beyond statements issued about his health. He has missed 24 oral arguments since early November but plans to administer the oath of office to President Bush for the January 20 inauguration.

Rehnquist is set to return to work next year. On January 11, the justices will hear a dispute between the Oneida Nation and the city of Sherill, New York. The city tried to foreclose on land owned by the tribe but the 2nd Circuit Court of Appeals, in a 2-1 decision, ruled that the land was protected by a 1794 treaty.

The case is the only Indian law case currently on the docket. The court has rejected several challenges to lower court rulings that were favorable to tribal interests.

Relevant Links:
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html