Advertise:   ads@blueearthmarketing.com   712.224.5420

Politics
Supreme Court nominee Alito ruled for alleged Indian


U.S. Supreme Court nominee Samuel Alito ruled in favor of an alleged Indian "holy man" who fought state officials over the right to exercise his religion.

As a judge on the 3rd Circuit Court of Appeals, Alito authored the opinion in Blackhawk v. Pennsylvania. The case involved Dennis L. Blackhawk, a Pennsylvania man who keeps two black bears in his backyard and uses them for ceremonies [Indianz.Com: Judge allows unrecognized Indian protection].

"Members of various American Indian tribes visit Blackhawk from across the country to participate in these rituals. Due to Blackhawk's stewardship of the bears and his role in these ceremonies, some consider him to be a holy man,' Alito wrote in August 20, 2004, decision [PDF].

The state of Pennsylvania didn't view Blackhawk that way and game officials ordered him to pay a fee to keep the bears. He sought a waiver, which was denied, and the state sought to confiscate Timber and Tundra when he failed to pay the fee.

Upholding a lower court judge, Alito ruled that the state violated Blackhawk's constitutional rights in denying the waiver. He said the state fee scheme couldn't withstand a "strict scrutiny" review because exceptions are allowed in some cases.

Blackhawk claims to be Lenape (Delaware) but is not enrolled in any tribe. Alito didn't take up the issue of Indian heritage but referred to it in explaining Blackhawk's religious needs.

"Lakota Indians believe that black bears protect the Earth, sanctify religious ceremonies, and imbue worshipers with spiritual strength. Although Blackhawk is a Lenape Indian by birth, he was adopted by elders of the Oglala Lakota and Seneca tribes, who schooled him in the religious traditions of the Lakota and Iroquois people," Alito wrote. "When Blackhawk began to see bears in a recurring dream, Lakota tribal elders concluded that the dream was a prophesy and predicted that Blackhawk would derive spiritual power from the animals."

In an opinion piece for The New York Times, Ann Althouse, a law professor at the University of Wisconsin, argues that decision shows Alito "displayed a sensitivity to the needs of adherents of minority religions" unlike Justice Antonin Scalia. Alito has often been compared to Scalia, who has consistently ruled against tribal interests. Althouse notes that Scalia wrote the decision in Employment Division v. Smith, which allowed the state of Oregon to go after members of the Native American Church who use peyote.

Related Story:
Ann Althouse: Separated at the Bench (The New York Times 11/1)
pwnyt

Relevant Links:
Judicial Nominations, White House - http://www.whitehouse.gov/infocus/judicialnominees

Related Stories:
Bush announces new U.S. Supreme Court pick (10/31)
Failed nominee Miers cited more Indian law work (10/28)
Miers withdraws Supreme Court nomination (10/27)
Miers, in speech, supported 'self-determination' (10/26)
Bush draws 'red line' over Miers White House papers (10/25)
Democrat says Miers lacks votes to be confirmed (10/24)
Miers blasted for responses to Senate questionnaire (10/20)
Supreme Court nominee Miers cites tribal experience (10/19)
Bush to tout Miers' knowledge of tribal sovereignty (10/17)
Supreme Court nominee Miers backed gaming limits (10/12)
U.S. Supreme Court nominee's gaming work at issue (10/07)
Supreme Court pick described as loyal, dedicated (10/4)
Bush names woman as O'Connor's replacement (10/3)
Roberts confirmed and sworn in as chief justice (9/30)
Bush said to be near new pick for Supreme Court (9/29)
Senate committee approves Roberts by 13-5 vote (9/23)
Sen. Leahy announces vote for Roberts confirmation (9/22)
Sen. Reid to vote against Roberts nomination (9/21)
Roberts mentions Indian law work on final day (9/19)
Supreme Court nominee Roberts promises 'no agenda' (9/13)
Roberts set for Supreme Court confirmation hearings (9/12)
Native Hawaiian work an issue for Roberts (9/7)
Roberts tapped for chief justice position (9/6)
Roberts aided O'Connor in confirmation process (08/11)
Rehnquist makes brief visit to hospital for fever (08/05)
Confirmation hearings on Roberts to start Sept. 6 (8/1)
Opinion: What does Roberts think about Seminole? (7/27)
Reagan-era documents from Roberts released (7/27)
White House plans to release most Roberts papers (7/26)
NARF lawyer fears Roberts will lean conservative (07/21)
Bush names John G. Roberts to Supreme Court (7/20)
Schumer asked about Roberts' views on Natives (7/20)
Rehnquist slaps down retirement rumors (7/15)
NCAI's Hall on picking a Supreme Court justice (7/13)
Mark Trahant: Appoint Indian to U.S. Supreme Court (7/11)
Key Republican speculates on Supreme Court makeup (7/11)
Harjo: O'Connor trampled on Native religious rights (7/8)
Republicans prepare for Rehnquist resignation (7/8)
O'Connor resigns from nation's highest court (7/5)
Justice's tenure filled with key Indian law cases (7/5)
Supreme Court wraps up October 2004 term (06/28)
U.S. Supreme Court vacancy impacts tribal rights (06/20)
High court won't take on Native Hawaiian recognition (06/14)
Appeals court to rehear tribal jurisdiction case (06/08)
Tribal authority over all Indians still unsettled question (06/23)
Myers not included in compromise on Bush judges (05/24)
Tribal sovereignty must be respected, court rules (05/13)
Supreme Court Roundup: Indian law cases rejected (04/19)
Supreme Court refuses Bush appeal of trust case (04/19)
Supreme Court takes drug case tied to peyote use (04/19)
Indian lawyer cites 'hostile' atmosphere in Washington (04/15)
Contracts still an issue despite Supreme Court win (04/14)
Oneida Nation begins land-into-trust process (04/13)
Supreme Court to weigh appeal of trust lawsuit (04/07)
Supreme Court Roundup: Indian law cases rejected (04/19)
Appeals court revives Wind River royalty fraud case (04/07)
BIA official calls high court ruling 'quite depressing' (03/31)
Supreme Court overturns Oneida Nation case (03/30)
Tribes win decision in contract support cost case (03/02)
Supreme Court takes on tribal-state tax dispute (03/01)
Passage of time at issue in Oneida Nation case (01/12)
Supreme Court rejects two Indian law cases (1/12)
U.S. Supreme Court decides cases without Rehnquist (12/14)
U.S. Supreme Court asked to rule on state taxation (12/02)
Peabody takes coal lease dispute to high court (12/01)
Tribal contracts pose conflict for U.S. Supreme Court (11/10)
Court to hear self-determination contract case (11/9)
Supreme Court takes action on Indian law cases (11/02)
Mille Lacs diminishment case before Supreme Court (10/22)
South Dakota challenge to tribes rejected by high court (10/19)
Supreme Court Roundup: 2003-2004 Term (07/08)
Supreme Court affirms tribal powers over all Indians (04/20)
Supreme Court to resolve self-determination dispute (03/23)
Cantwell stresses importance of judicial picks (6/17)
Tribal fears in Supreme Court case go unrealized (5/20)
Supreme Court case too close to call for some (4/1)
Supreme Court tussles with tribal sovereignty case (4/1)
Supreme Court case pits tribes against states (3/31)
Supreme Court panel's predictions mostly came true (3/19)
Appeals court nominees draw fire (1/30)
Bush pick worked on Hicks case (1/30)
Venetie foe up for appeals court again (01/08)
Bush nominee familiar with Indian law (5/9)
Indian Law and the Supreme Court (12/11)