FROM THE ARCHIVE
Indian Law and the Supreme Court
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DECEMBER 11, 2000

In a 5-4 ruling, the Supreme Court on Saturday suspended the recount of votes in Florida, leaving open the possibility of a narrowly divided Court come decision time.

Such a split is a common occurrence among the Court. But among their cases, there is often a pattern of voting among the nine justices.

Along with Chief Justice William H. Rehnquist, Justices Antonin Scalia and Clarence Thomas are typically conservative. They are often joined by Justices Sandra Day O'Connor and Anthony Kennedy. All were nominated by Republican Presidents.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer are the more liberal. With the exception of Souter, who was nominated by President George Bush, all were nominated by Democrat Presidents.

Here is a look at some of their recent Indian law or related cases, how they voted, and how they may relate to the Presidential case.

WATER RIGHTS, 2000:
In a 6-3 ruling, the Court upheld the reserved water rights of the Quechan Tribe. How much water the tribe receives figures prominently in the ongoing dispute between Arizona and California.

Chief Justice William Rehnquist agreed with the majority in part, but wrote a dissent against securing additional water rights for the tribe. He was joined by Sandra Day O'Connor and Clarence Thomas, all of whom voted to stop the Florida recount.

NATIVE HAWAIIAN RIGHTS, 2000:
The court ruled 7-2 to strike down a state-sponsored election where participation was limited to those of Native Hawaiian descent. The majority said the vote was race-based and therefore unconstitutional.

Only Stevens and Ginsberg concluded there was a special trust relationship between Native Hawaiians and the state, similar to that of Indian tribes and the federal government, that would uphold the election. Both voted not to stop the recount.

TREATY RIGHTS, 1999:
In a 5-4 decision, the Court narrowly upheld the off-reservation treaty rights of Chippewa bands in Minnesota. They rejected Minnesota's argument that entrance into the Union automatically abrogated an 1837 treaty.

Justice O’Connor wrote the majority opinion, which was joined by John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. With the exception of O'Connor, all voted not to stop recounts in Florida.

NATURAL RESOURCES, 1999:
In a 7-1 decision, the Court ruled the Southern Ute Tribe was not entitled to royalty payments on a coal by-product. At the time the tribe's rights to the coal were secured, the by-product was considered worthless and only recently became valuable.

Only Ginsberg filed a dissent, ruling that the ambiguity over the coal product should have been resolved in favor of the tribe. Breyer took no part in the case.

UNANIMOUS DECISIONS:
In quite a few Indian law cases, however, the opinion of the Court has been unanimous. Like the Ute case, these decisions often deal with historic interpretation of treaties or legislation.

In 1998, the Court unanimously upheld a state's right to tax land which fell out of Indian control but which was eventually recovered by the tribe. The same year, the Court unanimously ruled against the existence of Indian Country in Alaska and ruled that the Yankton Sioux Reservation in South Dakota was substantially reduced. In all the cases, allotment of Native lands figured prominently in the negative ruling against tribes.

Relevant Links:
Biographies of Supreme Court Justices - jurist.law.pitt.edu/supremecourt.htm

Related Stories:
Divided court to decide on divided race (Politics 12/11)
Supreme Court calls for recount (Politics 12/8)
Lawyers, lawmakers key in Presidential fight (Politics 12/7)

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