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O'Connor's tenure filled with key Indian law cases
Tuesday, July 5, 2005
Associate Justice Sandra Day O'Connor took her seat on the U.S. Supreme Court on September 25, 1981. During her 24 years on the bench, she participated in a large number of Indian law cases, ranging from taxation to treaty rights to religious freedom.
She authored opinions in some of the cases and filed dissents and concurrences in others. Here is a decade-by-decade list of the opinions she wrote in some of the court's Indian law cases. The cases in which she didn't author an opinion aren't listed.
1981-1990
Rice v.
Rehner, 463 U.S. 713 (1983). In her first authored decision
in an Indian law case, Justice O'Connor held that the state of
California has the authority to regulate liquor on reservations.
The vote was 6-3. She wrote:
There can be no doubt that Congress has divested the Indians of
any inherent power to regulate in this area. In the area of
liquor regulation, we find no 'congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.'
Lyng v.
Northwest Cemetery Protection Association, 485 U.S. 439 (1988).
Justice O'Connor delivered the majority opinion in this 5-3 case, holding
that the Free Exercise Clause of the U.S. Constitution
does not prohibit the U.S. Forest Service from permitting
logging or constructing a paved road in sacred site in California. She
wrote:
The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices.
... However much we might wish that it were otherwise, government simply could not
operate if it were required to satisfy every citizen's religious needs and
desires.
Brendale v.
Confederated Yakima Indian Nation, 492 U.S. 408 (1989). In
one of three consolidated cases, Justice
O'Connor, joined by Justice John Paul Stevens, held that the Yakama
Nation has the authority to regulate land owned by non-members in
a "closed" part of the reservation. But in the other two cases,
she concurred with 5-4 and 6-3 majorities, holding that the tribe cannot
impose its zoning laws on non-members who own land in
the "open" part of the reservation.
She wrote:
An Indian tribe's power to exclude nonmembers from a defined geographical area obviously includes the lesser power to define the character
of that area. ...
It is difficult to imagine a power that follows more forcefully
from the power to exclude than the power to require
that nonmembers, as a condition of entry, not disturb the traditional character of the reserved area.
1990-2000
Employment
Division, Oregon Department of Natural Resources v. Smith, 494 U.S. 872
(1990). Justice O'Connor wrote a concurring opinion in this 5-4 case, holding
that the Native American Church practitioners can be prosecuted under
state law for ingesting peyote. She agreed with the
outcome of the case but wrote separately because she didn't agree with the
majority's reasoning. She wrote:
There is no dispute that Oregon's criminal prohibition of peyote
places a severe burden on the ability of respondents to freely
exercise their religion. Peyote is a sacrament of the Native American
Church and is regarded as vital to respondents' ability to practice
their religion. .. [But] I believe that granting a selective exemption in this case would seriously impair
Oregon's compelling interest in prohibiting possession of peyote by its citizens.
Oklahoma Tax
Commission v. Sac & Fox Nation, 508 U.S. 114 (1993). Justice O'Connor
delivered the unanimous opinion for the court, holding that the state
of Oklahoma can't impose a series of taxes on tribal members who live and work within
Indian Country. She wrote:
Absent explicit congressional direction to the contrary, we presume against a
State's having the jurisdiction to tax within Indian country, whether the
particular territory consists of a formal or informal reservation, allotted
lands, or dependent Indian communities
Hagen v. Utah 510 U.S. 399 (1994). Justice O'Connor delivered the
opinion of the court in this 7-2 case, holding that Congress intended
to diminish the Uintah Reservation in Utah. She wrote:
In light of our precedents, we hold that the restoration of unallotted
reservation lands to the public domain evidences a congressional intent with
respect to those lands inconsistent with the continuation of reservation status.
South
Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998). Justice O'Connor
delivered the unanimous opinion of the court, holding that Congress intended
to diminish the Yankton Sioux Reservation in South Dakota. She wrote:
The 1894 Act contains the most certain statutory language, evincing Congress'
intent to diminish the Yankton Sioux Reservation by providing for total cession
and fixed compensation. Contemporaneous historical evidence supports that
conclusion, and nothing in the ambiguous subsequent treatment of the region
substantially controverts our reasoning.
Minnesota
v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Justice O'Connor
delivered the opinion of the 5-4 court, holding that Mille Lacs Band of
Ojibwe in Minnesota retains treaty rights on off-reservation lands. She
wrote:
The 1855 Treaty was designed primarily to transfer Chippewa land to the United
States, not to terminate Chippewa usufructuary rights.
2000-2005
Chickasaw
Nation v. US, 534 U.S. 84 (2001). Justice O'Connor filed a
dissent in
this 7-2 case, disagreeing with the majority that tribes are subject to
certain federal taxes for the sale of pull-tabs. She argued that
the Indian Gaming Regulatory Act was ambiguous on the issue, so it
must be "construed liberally in favor" of tribes. She wrote:
Faced with the unhappy choice of determining which part of a flawed statutory
section is in error, I would thus rely upon the long-established Indian canon of
construction and adopt the reading most favorable to the Nations.
Nevada v. Hicks 533 U.S. 353 (2001). Justice O'Connor filed a concurrence
in this 6-3 case, criticizing the majority for limiting tribal jurisdiction
over Nevada state game officials without considering all of the facts, such
as whether the officials might be able to entitled to immunity in a lawsuit
filed by a tribal member in tribal court. She wrote:
The Court issues a broad holding that significantly alters the
principles that govern determinations of tribal adjudicatory and
regulatory jurisdiction. ... I would not adopt a per se rule of
tribal jurisdiction that fails to consider adequately the Tribes’
inherent sovereign interests in activities on their land, nor
would I give nonmembers freedom to act with impunity on tribal
land based solely on their status as state law enforcement officials.
Relevant Links:
National Indian Law Library -
http://www.narf.org/nill/index.htm
Tribal Court Clearinghouse -
http://www.tribal-institute.org
From the Indianz.Com Archive:
O'Connor defends tribes amidst squabbling
(June 26, 2001) | State officials
barred from tribal suit (June 26, 2001)
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