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Supreme Court wraps up October 2004 term
Tuesday, June 28, 2005

The U.S. Supreme Court ended its term on Monday with decisions in a string of high-profile cases but no announcement on the future of Chief Justice William H. Rehnquist.

The possible resignation of Rehnquist, 80, has generated significant speculation in recent months due to his failing health. The White House is said to be gearing up for a vacancy on the high court. Two appeals court judges, including one with experience in Indian law, are said to be on the short list.

But even without news of a vacancy, the court gave the nation plenty to talk about yesterday, delivering opinions in a string of high-profile cases One was a split ruling on the display of the Ten Commandments in public places. The other was a unanimous ruling opening up Internet file-sharing services to lawsuits for distribution of copyrighted materials.

In terms of Indian law, the docket was notable for its relatively light load of cases. Only two tribal cases were argued during the October 2004 term. On the other hand, many more were rejected.

The first case argued and decided during the term was the Cherokee Nation self-determination case, No. 02-1472 [Docket Sheet] and No. 03-853 [Docket Sheet]. On March 1, the court delivered a unanimous 8-0 ruling, holding that the federal government is liable for not fully funding contract support costs.

The victory was overshadowed by Sherrill v. Oneida Nation, No. 03-855 [Docket Sheet], the second case argued and decided during the term. On March 29, the court, by an 8-1 vote, ruled that the Oneida Nation of New York cannot "unilaterally" assert sovereignty over its land claim area without going through the land-into-trust process.

As in years past, tribes took an active role before the court. The National Congress of American Indians and the Native American Rights Fund, through their Tribal Supreme Court project, submitted amicus briefs in both of the cases. Other tribes submitted brief as well.

Even though the effort didn't pay off 100 percent this term, it is seeing success, said John Echohawk, NARF's executive director. "[The project] has helped up to start formulating and executing legal strategies in the Supreme Court and the federal courts," he said at the Federal Bar Association's recent Indian law conference. "In general, we've been much better coordinating than we've done before."

In the October 2004 term, the project monitored 28 petitions of certiorari that were presented for Supreme Court review. The overwhelming majority -- 23 of them -- were rejected while two are still pending. In almost every instance, this meant tribal rights were protected.

One rejection came just yesterday. In Comstock v. Kennard, No. 04-165 [Docket Sheet], the court refused to hear an oil and gas company's attempt to avoid a False Claims Act suit for underpaying royalties to the Northern Arapaho Tribe and Eastern Shoshone Tribe, both of Wyoming. The 10th Circuit Court of Appeals in April 2004 allowed two men to pursue their claim against the Comstock company.

The two petitions pending are Delaware Tribe v. Cherokee Nation, No. 04-1368 [Docket Sheet], a dispute over the federal recognition of the Delaware Tribe of Oklahoma; and Wyoming Sawmills v. US Forest Service, No. 04-1175 [Docket Sheet], a case involving logging on a sacred medicine wheel in Wyoming. The court won't make a decision on whether to accept the cases until the October 2005 term. The Delaware case could be dropped if the tribe accepts a settlement offered by the Cherokee Nation.

As for the upcoming 2005 term, the court will be deciding at least two Indian law-related cases. Oral arguments have yet to be scheduled.

The first case is Richard v. Prairie Band Potawatomi Nation, No. 04-631 [Docket Sheet]. In August 2004, the 10th Circuit Court of Appeals ruled that the state of Kansas had no right to impose a distribution tax on gasoline sold by the Prairie Band Potawatomi Nation. The state of Kansas, backed by 14 other states, appealed.

The second case is Gonzales v. UDV, No. 04-1084 [Docket Sheet]. The 10th Circuit Court of Appeals in November 2004 shielded a non-Indian religious group in New Mexico from prosecution for using a hallucinogenic tea. The case has alarmed some Native American Church leaders, who fear it could lead to restrictions on their ability to practice their religion. Federal law allows church members to possess and use peyote, a drug, without prosecution.

The October 2005 term will begin October 3, Rehnquist announced yesterday.

Relevant Links:
NARF-NCAI Tribal Supreme Court Project -

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