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Supreme Court takes action on Indian law cases
Tuesday, January 11, 2005
The U.S. Supreme Court rejected two Indian law cases on Monday as it began another round of arguments without the presence of Chief Justice William Rehnquist.
Without comment, the justices refused to hear Peabody Coal's
lawsuit seeking to force the Navajo Nation into accepting
a lower royalty rate for a valuable coal deposit. The
9th Circuit Court of Appeals last June dismissed the case,
a victory for the tribe.
In a separate action, the justices declined a challenge
to the Indian Gaming Regulatory Act brought by three Wisconsin
tribes who want to open an off-reservation casino. The
7th Circuit Court of Appeals ruled last April
that a provision in the law allowing
the state governor to veto the proposal was constitutional
and did not violate the trust responsibility.
The actions came as the high court returned to work after its
annual month-long winter break. Five days of oral arguments
are scheduled for this month, including
City of Sherrill v. Oneida Indian Nation of New York
case involving the the city's attempt to tax ancestral land
repurchased by the tribe.
Rehnquist is not expected to participate
in the argument for that case
this morning due to his ongoing treatment for thyroid
cancer. He hasn't been seen in the court since October, when
word of his health condition was first made public.
On Friday, a court spokesperson announced that the absence would continue
"[b]ecause of continuing secretions caused by his tracheotomy
and radiation therapy." The statement added that Rehnquist
"will continue to read briefs and transcripts of oral arguments, participate in
conferences, and vote on cases."
Previously, the court said Rehnquist would not vote in a string of
cases he missed in November
unless there was a tie. The list included a self-determination
contract dispute being closely watched throughout Indian Country.
Oral arguments were held on November 10, with a ruling expected in
the coming months.
It is not clear whether Rehnquist's scaled-back participation will
affect the Oneida Nation case or the self-determination case. They
are the only Indian law cases that have been accepted so far
during the court's current term.
But Rehnquist's absence has fueled speculation about his possible
retirement. If that happens, President Bush would be able to
nominate a new member of the court as well as a new Chief Justice.
For Indian Country, the Rehnquist court has not been a kind one. His
two-decade career on the bench has been marked by the erosion of tribal
sovereignty, most notably in civil and criminal jurisdiction over
"The Rehnquist court's decisions, meandering from the
settled principles and approaches embraced by all its
predecessors, have created a judicial atmosphere that
threatens economic development efforts as well as the
political and cultural survival of Indian tribes,"
David H. Getches, a University of Colorado law school
professor and noted Indian law expert, said in
February 2002 testimony in the Senate.
Tribes have taken a more active role before the court
ever since the 2000-2001 term, when tribal interests lost
four out of five cases. The National Congress of American
Indians and the Native American Rights Fund formed the
Tribal Supreme Court Project to monitor developments,
submit briefs and help coordinate cases nationwide.
The project submitted briefs in the Oneida Nation and self-determination
cases, as well as a crucial criminal jurisdiction case during
the 2003-2004 term. NCAI President Tex Hall has said the tribes'
participation is "working" because the jurisdiction case was
decided in favor of tribal interests.
Today's hearing will last one hour, during which lawyers for the Oneida Nation and
the city of Sherrill will present their case. Four
are being presented for review, including whether the tribe ceased
The Department of Justice,
whose brief supported the tribe,
has been granted permission to participate in the argument.
Supreme Court - http://www.supremecourtus.gov
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html
Supreme Court blog - http://www.goldsteinhowe.com/blog
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