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
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
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
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
Sen. John McCain
get a chance to shape the court even further.
Indian law cases on
Supreme Court's new docket
9th Circuit delays ruling
in sacred site case
(10/06)Navajo Nation breach of trust case on docket
(10/2) Appeals court reverses course on sacred site
Appeals court denies rehearing in eagle protection case
(7/8) Appeals court
reinstates charges in eagle taking case