Indian Country Today
Nov. 4, 2004
Chief Justice William Rehnquist jolted the Presidential campaign when the Supreme Court announced Oct. 25 that he was in the hospital for treatment of thyroid cancer. Although he planned to resume his duties shortly, health concerns about the 80-year-old Rehnquist, one of the oldest and longest-serving Justices in Court history, reminded the political world that the future make-up of the Court would be one of the major prizes of the election. And the stakes might be highest of all for Indian country.
The Supreme Court is the one of the three branches of the federal government with the highest potential for wiping out Indian country gains with a keystroke. Although its most recent major decision, the Lara case, went narrowly in favor of tribal sovereignty, the range of opinions showed a wide split raising fundamental questions about the position of tribes within the federal framework. Future outcomes remain unpredictable and could depend heavily on the two or more Supreme Court appointments the next president is likely to make.
Predicting nominee's outlook
One problem, though, noted John Dossett, counsel for the National Congress of American Indians, is that it's very hard to predict a nominee's outlook on tribal cases. ''Justices appointed by Democrats or Republicans wind up on all sides of Indian issues,'' he told Indian Country Today. Very few senior judges had background in Indian law ''unless they took it in law school,'' he said, ''and not many do that.''The Supreme Court is the one of the three branches of the federal government with the highest potential for wiping out Indian country gains with a keystroke.
Until recently, he said, lawyers arguing Indian cases had made a mistake in assuming the judges knew more about Indian law than they actually did. ''Now we make our briefs more of a primer,'' he said.
In fact, the current strategy of Indian leadership toward the Supreme Court is to try to educate the judges through coordinated amicus curiae (friend of the court) briefs. Led by the
Supreme Court Project of NCAI and the Native American Rights Fund, Indian organizations and tribal coalitions extensively argued the Lara case and are doing the same for several cases now pending in both the Supreme Court and the 1st Circuit Court of Appeals.
The Appeals Court case, Carcieri v. Norton, is a fundamental challenge to the Interior Secretary's authority to take land into trust for tribes. NCAI lawyer Riyaz A. Kanji was allowed to participate in the recent oral argument in Boston's modernist Federal Court of Appeals building, a first for the organization, even though no tribe is directly a party in the suit. (The Governor of Rhode Island, Donald Carcieri, brought the case against Interior Secretary Gale Norton over her transfer into trust of a relatively small parcel for the Narragansett Indian Tribe.)
Two major cases
The Supreme Court has two major Indian cases on its docket this term, said Dossett. One, pitting the Cherokee and Shoshone-Bannock against Health and Human Services Secretary Tommy Thompson, centers on contract payments for health services devolved to tribes. Although that case raises important money questions, said Dossett, the really fundamental issues for Indian country come up in the second, City of Sherrill, New York, v. Oneida Indian Nation.
(Four Directions Media, Inc., publisher of Indian Country Today, is an enterprise of the Oneida Indian Nation.)
The Sherrill case, said Dossett, involved questions of taxation, reservation boundaries, the definition of ''Indian country'' (a major legal term), and possibly even legal standing to bring land claims and the conditions of tribal continuity. ''These affect every tribe in the country,'' he said.
The case began with an attempt by the City of Sherrill to levy property taxes on a number of parcels owned by the Oneidas, including a gas station and the factory for its textile printing business. When the city tried to condemn the properties for non-payment, the Oneidas obtained a federal injunction. They argued that land they purchased within the bounds of their original illegally dispossessed reservation reverted to tribal sovereign status, and a federal District judge and a 2 to 1 majority in the 2nd Circuit Court of Appeals agreed.
On June 28, to the surprise and consternation of some in Indian law, the Supreme Court granted Sherrill a writ of certiorari, its way of taking up the case. The case has set off a spate of amicus briefs, both from long-standing critics of the Oneidas, such as the Citizens Equal Rights Foundation and from supporters. Even the Solicitor General of the U.S. filed a brief at the invitation of the Justices. His office strongly supported the Oneida position, urging the court to let the lower rulings stand, and has now petitioned to join the oral argument, which will likely take place next January or February.
Tribal tax exemptions
The Supreme Court Project of NCAI and NARF is coordinating a series of briefs extending far beyond the original case. (Six were filed Sept. 30 and can be read on the NARF Web site.) In addition to the Oneida's legal arguments, they include submissions from NCAI, the United South and Eastern Tribes, the Cayuga Nation of New York and a group of western tribes. They discuss topics from the history of New York state Indian treaties to the definition of reservations.
A brief submitted and paid for by the Puyallup Tribe of Indians, the Southern Ute and the Pueblo of Acoma addresses the complaint that tribal exemption from local and state taxes hurts the surrounding economy. It plays the role of what constitutional lawyers call a ''Brandeis brief,'' following the lead of the great jurist Louis Brandeis in presenting the economic and social context of a case to the court. Its author Harry Sachse told ICT that it draws on a series of economic studies to show that Indian businesses, including casinos, have not only benefited neighbors, they have helped rescue entire regions from economic depression.
The value of these briefs received an indirect endorsement recently in a talk by Supreme Court Justice Stephen Breyer explaining how the court takes account of the outside world. ''Do I read the newspapers and try to see which way the political wind is blowing?'' he asked Oct. 23 in a talk at the Stanford University Law School. ''No. But we do decide through briefs that are submitted ... They are people trying to tell us of the impact of our decisions in their bit of the world.''
Since Breyer wrote the majority opinion in the Lara case, Dossett saw his remark as a possible reference to the Supreme Court Project briefs. ''I would like to think that our Lara briefs had an impact on the decision,'' Dossett said.
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