Assessing the Supreme Court

WASHINGTON – A U.S. Supreme Court considered anti-Indian by the balance of opinion in Indian country didn’t improve its standing with these critics in 2006, but worth noting is that it didn’t render decisions against Indian interests so much as it allowed lower court decisions to stand. And it took on one case, to be argued in January, concerning federal impact aid funding to schools that serve Indian students.

It can’t be considered a true surprise when the Supreme Court refuses to consider lower court decisions, because it seldom revisits such cases on so-called certiorari review (the Latin refers to making a decision more certain through a final look from a higher court). But given the high stakes for Indian country, feelings toward the court were bitter indeed last May, when it returned the dreaded words “cert denied” on Seneca land claims, and then on a Cayuga land claims case that had approached a third decade in litigation.

By its inaction, the Supreme Court sealed the defeat of Cayuga land claims in upstate New York, primarily by reason of the tribe’s purported long inaction on its claims. In effect, the high court found nothing to argue with in the finding that favoring the Cayuga claims now would disrupt other interests, despite the strong view of Indian country at large that the Cayuga claim was undermined and complicated by breaches of federal and treaty law. A number of prominent Indian attorneys took the view that a towering injustice had been committed in the lower courts; and Cayuga leader Clint Halftown issued a statement contending the tribe never should have trusted the U.S. legal system.

Some foes of the hard-fought Cayuga claim took the decision as precedent for the termination of all land claims among the reviving Haudenosaunee (Iroquois) Confederacy tribes, a cause taken up by some among New York state’s congressional delegation and filed for lower court action, though not acted upon by Congress.

Come what may, the Supreme Court appeared to be settling on the view of its conservative wing that the Constitution, as well as offering legal rights, also raises certain thresholds to citizens with damages and takings claims against state governments – and then extending that view to tribes. No less an authority than Kevin Gover, former assistant secretary for Indian Affairs at the Interior Department, has advised tribes against turning to the Supreme Court as a protector as they have in times past.

Another decision of “cert denied” left intact a lower court ruling that all Rhode Island laws can be enforced on Narragansett Tribe dominions, based on a “unique relationship” between the state and the tribe. At stake was the tribe’s authority to operate a smoke shop without license (that is, tax-free) from the state.

Likewise on a “cert denied” appeal, the Delaware of Oklahoma were not heard by the court on a claim to Pennsylvania land for casino purposes; the Pechanga in California were permitted to police their own enrollment; tribal authority over Indians who are not citizens of a tribe was left intact; and the BIA retained its ability to take land into trust for tribes.

A handful of other cases with consequence for Indian country are “cert pending,” meaning they may or may not be accepted by the Supreme Court for review.

The impact aid case, slated for January, is that rare example of “cert granted” – in Zuni Public School District, et al. v. Department of Education, et al., the high court could clear up an issue that has aggravated tribes for years. Federal impact aid funds are paid to school districts based on the presence of federal lands; it makes up for the lack of tax income from those lands. The funds are pooled and doled out again for all school uses within the district; tribes have long argued that because the funds are available due to the presence of their trust lands within school districts, they should receive the federal impact aid funds. That is at least one difficult issue the court is prepared to tackle.

The lengthy detail on these and other cases can be found at the Native American Rights Fund Tribal Supreme Court Project Web site, www.narf.org/cases/supctproj.html.