Two religious rights cases on Supreme Court's horizon

Law

Tuesday, October 21, 2008

With three Indian law cases already on the docket, this year's U.S. Supreme Court term could get see the addition of some high-profile religious rights disputes.

The cases are being watched closely in Indian Country, whose efforts to limit negative rulings by the court have largely succeeded in recent years. Since the disastrous 2000-2001 term, when tribal interests lost nearly every decision, the justices have heard fewer and fewer Indian law cases.

This year looks a lot different, with the court set to resolve disputes over land-into-trust, the federal trust responsibility and Native Hawaiian rights. In all three instances, the lower courts ruled in favor of Native interests, leading to fears that the victories will be overturned.

The docket already has the Native American Rights Fund, whose attorneys help run the Tribal Supreme Court Project, suggesting that the current term "may prove to be another difficult period for Indian Country."

The addition of two religious rights cases could make it even harder but since the lower courts ruled against Native interests both times, the justices may not be interested in hearing them. So far this term, they have already rejected three petitions from tribes who were on the losing end of a case.

The first case involves Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, who is being prosecuting for taking a bald eagle -- a protected species -- without a federal permit. He took the eagle for use in the sacred Sun Dance ceremony and argues that the permitting process violates his rights under the Religious Freedom Restoration Act.

"In the more than 20 years of the permit program's existence, no individual tribal member has ever applied for or received a fatal-take permit," his attorney wrote in a petition to the Supreme Court. "At the time of the hearing, only three permits had been issued, to two different tribes in the southwest represented by legal counsel, as opposed to individual Indians."

A federal judge sided with Friday in October 2006 and dismissed the charges. But the 10th Circuit Court of Appeals reinstated the indictment in May of this year, rejecting the RFRA claims in a unanimous decision.

Friday's petition was filed October 1. The government's response is due November 7.

In the second case, the Navajo Nation, the Hopi Tribe and other tribes in Arizona are suing to stop the U.S. Forest Service from allowing a ski resort in the sacred San Francisco Peaks to use reclaimed sewage to make snow. The tribes say the presence of the wastewater will harm their religious beliefs.

A three-judge panel of the 9th Circuit Court of Appeals initially sided with the tribes. But after a rehearing, an en banc panel reversed course and rejected the tribal RFRA claims by an 8-3 vote in August.

The tribes have not yet filed a petition with the Supreme Court. Earlier this month, the 9th Circuit agreed to stay the case while the appeal is being pursued.

Tribes used to look to the Supreme Court to protect their interests but the tide has changed in recent decades. Many attribute the reversal of fortune on the William Rehnquist, whose term as chief justice began in 1986 and ended in 2005, following his death.

"At a recent conference at the University of North Dakota School of Law, professor Alex Skibine remarked that since 1988, the Supreme Court has decided 33 of 44 Indian law cases against tribal interests," Matthew Fletcher, the director of the Indigenous Law and Policy Center at Michigan State University, wrote in an Indian Country Today opinion piece last year.

President Bush's two nominees to the Supreme Court -- John G. Roberts, who now serves as chief justice, and Samuel Alito -- have shifted the court into more conservative grounds. The winner of the next presidential election -- either Sen. Barack Obama or Sen. John McCain -- may get a chance to shape the court even further.