ONEIDA, N.Y. – Chief Justice William Rehnquist jolted the Presidential
campaign when the Supreme Court announced Oct. 25 that he was in the
hospital for treatment of thyroid cancer. Although he planned to resume his
duties shortly, health concerns about the 80-year-old Rehnquist, one of the
oldest and longest-serving Justices in Court history, reminded the
political world that the future make-up of the Court would be one of the
major prizes of the election. And the stakes might be highest of all for
Indian country.

The Supreme Court is the one of the three branches of the federal
government with the highest potential for wiping out Indian country gains
with a keystroke. Although its most recent major decision, the Lara case,
went narrowly in favor of tribal sovereignty, the range of opinions showed
a wide split raising fundamental questions about the position of tribes
within the federal framework. Future outcomes remain unpredictable and
could depend heavily on the two or more Supreme Court appointments the next
president is likely to make.

One problem, though, noted John Dossett, counsel for the National Congress
of American Indians, is that it’s very hard to predict a nominee’s outlook
on tribal cases. “Justices appointed by Democrats or Republicans wind up on
all sides of Indian issues,” he told Indian Country Today. Very few senior
judges had background in Indian law “unless they took it in law school,” he
said, “and not many do that.”

Until recently, he said, lawyers arguing Indian cases had made a mistake in
assuming the judges knew more about Indian law than they actually did. “Now
we make our briefs more of a primer,” he said.

In fact, the current strategy of Indian leadership toward the Supreme Court
is to try to educate the judges through coordinated amicus curiae (friend
of the court) briefs. Led by the Supreme Court Project of NCAI and the
Native American Rights Fund, Indian organizations and tribal coalitions
extensively argued the Lara case and are doing the same for several cases
now pending in both the Supreme Court and the 1st Circuit Court of Appeals.

The Appeals Court case, Carcieri v. Norton, is a fundamental challenge to
the Interior Secretary’s authority to take land into trust for tribes. NCAI
lawyer Riyaz A. Kanji was allowed to participate in the recent oral
argument in Boston’s modernist Federal Court of Appeals building, a first
for the organization, even though no tribe is directly a party in the suit.
(The Governor of Rhode Island, Donald Carcieri, brought the case against
Interior Secretary Gale Norton over her transfer into trust of a relatively
small parcel for the Narragansett Indian Tribe.)

The Supreme Court has two major Indian cases on its docket this term, said
Dossett. One, pitting the Cherokee and Shoshone-Bannock against Health and
Human Services Secretary Tommy Thompson, centers on contract payments for
health services devolved to tribes. Although that case raises important
money questions, said Dossett, the really fundamental issues for Indian
country come up in the second, City of Sherrill, New York, v. Oneida Indian
Nation.

(Four Directions Media, Inc., publisher of Indian Country Today, is an
enterprise of the Oneida Indian Nation.)

The Sherrill case, said Dossett, involved questions of taxation,
reservation boundaries, the definition of “Indian country” (a major legal
term), and possibly even legal standing to bring land claims and the
conditions of tribal continuity. “These affect every tribe in the country,”
he said.

The case began with an attempt by the City of Sherrill to levy property
taxes on a number of parcels owned by the Oneidas, including a gas station
and the factory for its textile printing business. When the city tried to
condemn the properties for non-payment, the Oneidas obtained a federal
injunction. They argued that land they purchased within the bounds of their
original illegally dispossessed reservation reverted to tribal sovereign
status, and a federal District judge and a 2 to 1 majority in the 2nd
Circuit Court of Appeals agreed.

On June 28, to the surprise and consternation of some in Indian law, the
Supreme Court granted Sherrill a writ of certiorari, its way of taking up
the case. The case has set off a spate of amicus briefs, both from
long-standing critics of the Oneidas, such as the Citizens Equal Rights
Foundation and from supporters. Even the Solicitor General of the U.S.
filed a brief at the invitation of the Justices. His office strongly
supported the Oneida position, urging the court to let the lower rulings
stand, and has now petitioned to join the oral argument, which will likely
take place next January or February.

The Supreme Court Project of NCAI and NARF is coordinating a series of
briefs extending far beyond the original case. (Six were filed Sept. 30 and
can be read on the NARF Web site.) In addition to the Oneida’s legal
arguments, they include submissions from NCAI, the United South and Eastern
Tribes, the Cayuga Nation of New York and a group of western tribes. They
discuss topics from the history of New York state Indian treaties to the
definition of reservations.

A brief submitted and paid for by the Puyallup Tribe of Indians, the
Southern Ute and the Pueblo of Acoma addresses the complaint that tribal
exemption from local and state taxes hurts the surrounding economy. It
plays the role of what constitutional lawyers call a “Brandeis brief,”
following the lead of the great jurist Louis Brandeis in presenting the
economic and social context of a case to the court. Its author Harry Sachse
told ICT that it draws on a series of economic studies to show that Indian
businesses, including casinos, have not only benefited neighbors, they have
helped rescue entire regions from economic depression.

The value of these briefs received an indirect endorsement recently in a
talk by Supreme Court Justice Stephen Breyer explaining how the court takes
account of the outside world. “Do I read the newspapers and try to see
which way the political wind is blowing?” he asked Oct. 23 in a talk at the
Stanford University Law School. “No. But we do decide through briefs that
are submitted … They are people trying to tell us of the impact of our
decisions in their bit of the world.”

Since Breyer wrote the majority opinion in the Lara case, Dossett saw his
remark as a possible reference to the Supreme Court Project briefs. “I
would like to think that our Lara briefs had an impact on the decision,”
Dossett said.