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O'Connor's tenure filled with key Indian law cases
Tuesday, July 5, 2005

Associate Justice Sandra Day O'Connor took her seat on the U.S. Supreme Court on September 25, 1981. During her 24 years on the bench, she participated in a large number of Indian law cases, ranging from taxation to treaty rights to religious freedom.

She authored opinions in some of the cases and filed dissents and concurrences in others. Here is a decade-by-decade list of the opinions she wrote in some of the court's Indian law cases. The cases in which she didn't author an opinion aren't listed.

1981-1990
Rice v. Rehner, 463 U.S. 713 (1983). In her first authored decision in an Indian law case, Justice O'Connor held that the state of California has the authority to regulate liquor on reservations. The vote was 6-3. She wrote:

There can be no doubt that Congress has divested the Indians of any inherent power to regulate in this area. In the area of liquor regulation, we find no 'congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.'

Lyng v. Northwest Cemetery Protection Association, 485 U.S. 439 (1988). Justice O'Connor delivered the majority opinion in this 5-3 case, holding that the Free Exercise Clause of the U.S. Constitution does not prohibit the U.S. Forest Service from permitting logging or constructing a paved road in sacred site in California. She wrote:

The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices. ... However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires.

Brendale v. Confederated Yakima Indian Nation, 492 U.S. 408 (1989). In one of three consolidated cases, Justice O'Connor, joined by Justice John Paul Stevens, held that the Yakama Nation has the authority to regulate land owned by non-members in a "closed" part of the reservation. But in the other two cases, she concurred with 5-4 and 6-3 majorities, holding that the tribe cannot impose its zoning laws on non-members who own land in the "open" part of the reservation. She wrote:

An Indian tribe's power to exclude nonmembers from a defined geographical area obviously includes the lesser power to define the character of that area. ... It is difficult to imagine a power that follows more forcefully from the power to exclude than the power to require that nonmembers, as a condition of entry, not disturb the traditional character of the reserved area.

1990-2000
Employment Division, Oregon Department of Natural Resources v. Smith, 494 U.S. 872 (1990). Justice O'Connor wrote a concurring opinion in this 5-4 case, holding that the Native American Church practitioners can be prosecuted under state law for ingesting peyote. She agreed with the outcome of the case but wrote separately because she didn't agree with the majority's reasoning. She wrote:

There is no dispute that Oregon's criminal prohibition of peyote places a severe burden on the ability of respondents to freely exercise their religion. Peyote is a sacrament of the Native American Church and is regarded as vital to respondents' ability to practice their religion. .. [But] I believe that granting a selective exemption in this case would seriously impair Oregon's compelling interest in prohibiting possession of peyote by its citizens.

Oklahoma Tax Commission v. Sac & Fox Nation, 508 U.S. 114 (1993). Justice O'Connor delivered the unanimous opinion for the court, holding that the state of Oklahoma can't impose a series of taxes on tribal members who live and work within Indian Country. She wrote:

Absent explicit congressional direction to the contrary, we presume against a State's having the jurisdiction to tax within Indian country, whether the particular territory consists of a formal or informal reservation, allotted lands, or dependent Indian communities

Hagen v. Utah 510 U.S. 399 (1994). Justice O'Connor delivered the opinion of the court in this 7-2 case, holding that Congress intended to diminish the Uintah Reservation in Utah. She wrote:

In light of our precedents, we hold that the restoration of unallotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status.

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998). Justice O'Connor delivered the unanimous opinion of the court, holding that Congress intended to diminish the Yankton Sioux Reservation in South Dakota. She wrote:

The 1894 Act contains the most certain statutory language, evincing Congress' intent to diminish the Yankton Sioux Reservation by providing for total cession and fixed compensation. Contemporaneous historical evidence supports that conclusion, and nothing in the ambiguous subsequent treatment of the region substantially controverts our reasoning.

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Justice O'Connor delivered the opinion of the 5-4 court, holding that Mille Lacs Band of Ojibwe in Minnesota retains treaty rights on off-reservation lands. She wrote:

The 1855 Treaty was designed primarily to transfer Chippewa land to the United States, not to terminate Chippewa usufructuary rights.

2000-2005
Chickasaw Nation v. US, 534 U.S. 84 (2001). Justice O'Connor filed a dissent in this 7-2 case, disagreeing with the majority that tribes are subject to certain federal taxes for the sale of pull-tabs. She argued that the Indian Gaming Regulatory Act was ambiguous on the issue, so it must be "construed liberally in favor" of tribes. She wrote:

Faced with the unhappy choice of determining which part of a flawed statutory section is in error, I would thus rely upon the long-established Indian canon of construction and adopt the reading most favorable to the Nations.

Nevada v. Hicks 533 U.S. 353 (2001). Justice O'Connor filed a concurrence in this 6-3 case, criticizing the majority for limiting tribal jurisdiction over Nevada state game officials without considering all of the facts, such as whether the officials might be able to entitled to immunity in a lawsuit filed by a tribal member in tribal court. She wrote:

The Court issues a broad holding that significantly alters the principles that govern determinations of tribal adjudicatory and regulatory jurisdiction. ... I would not adopt a per se rule of tribal jurisdiction that fails to consider adequately the Tribes’ inherent sovereign interests in activities on their land, nor would I give nonmembers freedom to act with impunity on tribal land based solely on their status as state law enforcement officials.

Relevant Links:
National Indian Law Library - http://www.narf.org/nill/index.htm
Tribal Court Clearinghouse - http://www.tribal-institute.org

From the Indianz.Com Archive:
O'Connor defends tribes amidst squabbling (June 26, 2001) | State officials barred from tribal suit (June 26, 2001)