American Indian cases await new Supreme Court head
WASHINGTON -- At least three major Indian cases are waiting for the first
session in October of what would be the Roberts court, if Judge John
Roberts Jr. receives Senate confirmation as chief justice of the United
The nine Supreme Court justices are scheduled to hear oral arguments in a
reservation tax case from Kansas. They will also decide whether to take up
a crucial land claims case from New York and a challenge from Rhode Island
to the constitutionality of the Interior Department's land-into-trust
As the new chief justice -- a very high probability -- Roberts could put an
immediate stamp on the next generation of Indian law. (The decisions could
also be a swan song for the two justices with the most direct exposure to
tribal jurisprudence: Sandra Day O'Connor, who is trying to retire, and
John Paul Stevens, who is 84. Both O'Connor and Stevens were guests on a
historic tour of tribal courts several years ago and actually participated
in some sessions.)
Ironically, more might be riding on whether the Supreme Court decides to
add the two new appeals to its docket than on how it decides the Kansas tax
case. The federal circuit courts for both New York and Rhode Island
recently made significant rulings affecting all Indian country, and if the
Supreme Court declines to review them, they will stand as final. Although
the Kansas case raises central issues, it could also turn on narrow
The Kansas case is now styled Joan Wagnon v. Prairie Band Potawatomi
Nation. (Wagnon replaced the previous petitioner, Stephen S. Richards, as
secretary of the Kansas Department of Revenue.) The state of Kansas is
trying to levy a motor fuel tax on a non-Indian distributor to a tribally
owned gas station. The 10th Circuit Court of Appeals invalidated the tax
based on a balancing test of state, federal and tribal interests.
The state would like a "bright line" rule allowing it to tax non-Indians on
and off the reservation, but the court could go either way without making a
major change in law.
The Narragansett Tribe of Rhode Island has just won a major victory in the
1st Circuit Court of Appeals rehearing of Carcieri v. Norton. (Rhode Island
Governor Donald C. Carcieri and the town of Charleston are actually suing
Interior Secretary Gale Norton over 31 acres she placed into trust for the
Narragansett Tribe's elderly housing project.) On Sept. 13, a three-judge
panel reaffirmed its earlier ruling upholding the land-into-trust process.
It rejected the state's claim that the 1934 Indian Reorganization Act made
an unconstitutional delegation of power. Furthermore, in a significant
holding for all Indian country, it said the act applied to tribes that were
recognized after 1934. And two of the three judges said the tribe would
have full sovereignty over the new trust land.
The ruling followed within a week of a similar decision by the 8th Circuit
Court in a South Dakota case. The agreement in separate circuits removes
pressure on the Supreme Court to take up the case.
The Cayuga Indian land claim case in New York state is another matter. The
2nd Circuit on Sept. 9 declined to rehear a July 28 decision throwing out
the decades-old case, which had already been won by the tribe in U.S.
District Court. The 2 -- 1 ruling made a "novel" application of an equity
principle called "laches." Although frequently described in the press as
saying the Cayugas had "waited too long," the decision actually set up a
far more complicated legal situation that would also hamper the U.S.
government's ability to enforce its laws. Lawyers for the Cayugas say their
chance of getting a Supreme Court review is far above average.