Facebook Twitter Email
DECEMBER 1, 2000

When the Supreme Court today hears arguments that may determine the fate of the Presidential race, their focus will include a law passed over one hundred years ago.

On Thursday, Texas Governor Al Gore and Vice President Al Gore submitted briefs on how they feel the nine Justices should interpret the Electoral Count Act. The law was passed in 1887 in order to avoid a repeat of the 1876 Presidential election in which Republican Rutherford B. Hayes defeated Democrat Samuel Tilden after a nationwide dispute over electoral votes, a crucial element in the present race.

But even as the Act is termed "obscure" and "old" by national media, the Court's Indian law cases show that history sometimes comes back with a bite of its own.

In recent years, the Court's interpretation of old laws and treaties have resulted in the reduction of the Yankton Sioux Reservation in South Dakota and the limitation of a tribal authority over non-Indians. At the same time, the Court has upheld the treaty rights of Ojibwe bands in Minnesota and the water rights of a tribe in Arizona.

But whether the decision has been hailed as good or bad, the Court has usually interpreted Indian law disputes as if time has stood still. In 1999, for instance, the Court considered if the Southern Ute Tribe of Colorado were entitled to royalties for coalbed methane gas (CMB) extracted from coal the tribe owns.

In deciding the case, the Court relied on the fact that CMB was considered a waste product in the early 1900s, when two crucial laws were passed by Congress. In spite of advancements in technology which have now made CMB a valuable resource, the Court held true to the past and ruled against the tribe.

Already facing a difficult battle on several fronts, the Supreme Court's view of old laws may prove difficult for Gore to overcome. Since the Electoral Count Act was intended to let states decide electoral disputes, the Court may agree with Bush's interpretation of the law and turn back the clock to November 12, the original Florida certification date.

Bush argues that the Florida decision which extended the certification date constituted "new law" and therefore violated the Act and state law. Gore, on the other hand, says the Florida decision merely resolved existing state law.

But the Court has already surprised legal analysts and scholars by deciding to hear the case in the first place. In either event, the Court's ruling might not end the dispute entirely, as Florida lawmakers are planning on holding a special session to ensure that Bush gets the state's 25 electoral votes.

On that issue, however, Gore has told the Supreme Court that such a move violates yet another old law, one passed in 1845.

Oral arguments begin at 10:00AM Eastern Standard Time. The hearing will last 90 minutes. No video or audio taping is allowed, but the Court will make its own audio tape of the hearing available soon after the hearing.

C-SPAN plans on airing it in its entirety. Additionally, the Court will post a written transcript on its web site soon after the hearing.

Listen to Audio of the Hearing:
Supreme Court Hearing (AP 12/1)
Alternate: Supreme Court Hearing (C-SPAN 12/1)

Get the Supreme Court Briefs:
US Supreme Court Briefs (The Washington Post)

Related Stories:
Presidential Election update (Politics 11/30)
Presidential election update (Politics 11/29)
Gore appeals to nation (Politics 11/28)

Relevant Links:
The Supreme Court - www.supremecourtus.gov
C-SPAN - www.cspan.org