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

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