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Supreme Court considering Indian cases
TUESDAY, FEBRUARY 19, 2002

As tribes head to Congress to seek ways to counteract a wave of recent rulings deemed destructive to tribal sovereignty, the Supreme Court is considering a new set of cases affecting key areas of Indian law.

In recent months, tribes and opponents have asked the nation's highest court to review a number of contested decisions. Tribal authority over non-Indians, the trust relationship, sovereign immunity, self-determination and federal recognition are among the issues facing the nine Justices, who will decide whether or not to accept any one of the cases as early as today.

The Supreme Court in the past has been viewed as a protector of Indian rights. Tribal leaders have seen this role change during the last several years, leading to a disappointing 2000-2001 term where all but one case was decided in favor of Indian Country.

The current 2001-2002 term could shape up to be much the same, if the cases pending before the Court are any indication. Here is a brief sketch of the major actions pending.

Jurisdiction
Whether the Hoopa Valley Tribe of California can prevent a non-Indian resident from logging on land near a sacred site has already been a divisive issue, with anti-sovereignty and anti-treaty rights groups seeking to overturn a favorable ruling.

The courts here are conflicted. A three-judge panel of the 9th Circuit Court of Appeals first ruled the tribe had no authority over Roberta Bugenig. But last September, the full panel of the court said the tribe could stop her from logging.

Pacific Legal Foundation, an organization fighting fish protections in the hotly contested Klamath Basin, is representing Bugenig. The Citizens Equal Rights Alliance, a national group which has called for the abrogation of treaties, and Idaho Attorney General Al Lance, who has lost two Indian challenges in the past year, have filed briefs against the tribe.

Related Decisions:
Bugenig v. Hoopa Valley Tribe, No 99-15654 (9th Cir. September 11, 2001)
Bugenig v. Hoopa Valley Tribe No 99-15654 (9th Cir. October 2000, Withdrawn)
Bugenig v. Hoopa Valley Tribe No. C-98-3409 (US District Court. Mar 4, 1999)

Relevant Links:
Pacific Legal Foundation - http://www.pacificlegal.org
Citizens Equal Rights Alliance - http://www.citizensalliance.org

Related Stories:
Court upholds sacred site protection (9/12)

Trust Relationship
Dissatisfied with disappointing rulings from courts below, tribes going before the Federal Circuit Court of Appeals have seen success. The Navajo Nation, the Confederate Warm Springs Tribes of Oregon and the White Mountain Apache Tribe of Arizona have prevailed in recent months on breach of trust claims against the federal government.

The Apache Tribe, however, might see its fortune reversed. Solicitor General Ted Olson, who successful fought Native Hawaiian voting rights and defended President Bush in the election dispute, has asked the Supreme Court to overturn a ruling which said the government has a trust obligation to restore and rehabilitate dilapidated buildings.

Get the Case:
White Mountain Apache Tribe v. US, No 00-5044 (Fed Cir. May 16, 2001)

Related Stories:
Apache Tribe wins trust case appeal (5/17)

Sovereign Immunity
In a dispute involving some of the same issues which characterized last year's still debated Nevada v. Hicks case, the Alabama and Coushatta Tribes of Texas have asked the Supreme Court to overturn an appeals court decision.

The 5th Circuit Court of Appeals last August ruled the tribes' court was illegal and could not hear a dispute involving an oil company. Citing a case involving the Tigua Tribe, the court also ruled that several tribal officials and the tribe itself were not entitled to sovereign immunity.

The immunity of the Omaha Tribe of Nebraska is also up for consideration. A gaming company wants the Court to force the tribe to pay $6.4 million for an alleged breach of a casino contract.

Related Decisions:
Comstock v. Alabama and Coushatta Indian Tribes No. 00-40088 (5th Cir. August 27, 2001)
MRS Inc. v. Omaha Tribe of Nebraska, No 00-1094 (8th Cir. September 12, 2001)

Related Stories:
$6.4M judgment against Omaha Tribe set aside (9/14)

Other Cases
Today, the Court might accept an appeal by the Miami Nation of Indiana, which has been seeking federal recognition for decades. The Bureau of Indian Affairs denied the tribe recognition during the first Bush administration.

Most recently, the 7th Circuit Court of Appeals said the tribe failed to exist after World War II. The Native American Rights Fund is representing the tribe.

San Juan Pueblo of New Mexico is waiting to hear if its right to work laws will be challenged. The 10th Circuit Court of Appeals last month upheld the laws as a right of self-determination.

Related Decisions:
Miami Nation v. Department of the Interior, No 00-3465 (7th Cir. June 15, 2001)
NLRB v. San Juan Pueblo NO. 1385, No. 99-2011, 99-2030 (10th Cir. January 11, 2002)

Relevant Links:
Native American Rights Fund - http://www.narf.org

Related Stories:
Tribe asks Supreme Court for recognition (2/15)
Tribal right to work laws affirmed (1/14)

Congressional Action
Noting the potentially deadly legal climate, tribal leaders have been appealing to lawmakers for help. The Senate Indian Affairs Committee next Wednesday will hold a hearing on the impact of recent Supreme Court decisions on tribal sovereignty and may consider creative legislative solutions.

Relevant Links:
Senate Indian Affairs Committee - http://indian.senate.gov

Related Stories:
Supreme Court Roundup: The 2000-2001 Term (6/19)
Supreme Court: The 2000-2001 Term (3/6)
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