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U.S. Supreme Court vacancy impacts tribal rights
Monday, June 20, 2005

All eyes are on the U.S. Supreme Court this month for the possible resignation of Chief Justice William H. Rehnquist.

In ailing health due to thyroid cancer, Rehnquist, 80, is widely expected to retire once the court wraps up its current term next week. The move would give President Bush an opportunity to nominate not only a replacement but a new chief justice. Both positions require Senate confirmation.

The stakes are incredibly high, especially for Indian Country. In recent years, the court has consistently ruled against tribal interests in sovereignty, taxation and other disputes. Tribes lost four out of five cases during the 2000-2001 term, viewed as one of the worst in recent memory.

That wasn't always the situation, tribes and their advocates point out. John Echohawk, the executive director of the Native American Rights Fund, said the top court used to be a place where tribes could seek final justice.

"In recent years, that has changed as the U.S. Supreme Court, and the federal courts generally, have gotten a bit more conservative on us and it hasn't been as easy as it used to be to win these cases," Echohawk told attendees of the Federal Bar Association's recent Indian law conference.

With Indian law cases often decided on 5-4 or 6-3 vote, any change in the high court's makeup could make it even harder. Based on recent rulings, the justices seem deeply divided on how far tribal sovereignty goes, especially when it affects non-Indians and off-reservation interests.

"I think we are all aware of the degree to which the Supreme Court in the last quarter-century has issued jurisdictional decisions that have attempted to 'check' tribes as they have sought to revitalize their sovereignty," said Riyaz Kanji, a lawyer in private practice and former Supreme Court clerk, at the same conference.

The White House has been tightlipped about a possible vacancy on the court. But in the past, Bush has said his favorite justices are Antonin Scalia and Clarence Thomas, who almost always rule against tribes. Bush's record in nominating conservative-leaning judges for the district and appellate courts bears that out.

According to news reports, Bush is considering Supreme Court nominees along the same lines. Some of the names frequently mentioned include D.C. Circuit Court Judge John G. Roberts, 4th Circuit Court Judge J. Michael Luttig and White House counsel Alberto Gonzales.

Of the three, only Roberts has significant experience in Indian law. He represented the state of Alaska in the Venetie Supreme Court case of 1988 that held that land owned by Alaska Native villages is not Indian Country.

He also represented the state of Hawaii in the Rice v. Cayetano case of 2000. He defended the state's Native Hawaiian-only election before the high court, which ultimately struck it down as unconstitutional.

Additionally, before he joined the D.C. Circuit Court, Roberts worked on an informal basis with tribal lawyers on the NARF-NCAI joint Supreme Court project. Tribes started the project in 2001 in response to the court's negative rulings.

The effort has been successful, according to participants. Since the 2000-2001 term, tribes lost only two major cases while winning two major cases. At the same time, the court accepted only a small number of Indian law cases, rejecting many more affecting sovereignty, gaming, sacred sites and the trust relationship.

But major challenges lie ahead for the term that starts October 2005. The court is slated to hear a significant tax dispute that could affect tribes nationwide. Other petitions have been filed in high-profile sovereignty and land-into-trust cases.

Relevant Links:
NARF-NCAI Tribal Supreme Court Project -

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