Attorney: Richard Guest
Case Update
The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review.
At present, the Project anticipates a decision in the very near future in Carcieri v. Kempthorne, a case involving a challenge by the State of Rhode Island to the authority of the Secretary of the Interior to take land in to trust for the benefit of the Narragansett Indian Tribe under the provisions of the 1934 Indian Reorganization Act. Rhode Island argued that the Secretary's authority to take land in trust for the benefit of "Indians" was limited by Congress to recognized Indian tribes now under federal jurisdiction in 1934.
The Project has continued to focus its energy and resources on two other Indian law cases that the Court is scheduled to decide this term: United States v. Navajo Nation and State of Hawaii v. Office of Hawaiian Affairs. In United States v. Navajo Nation, the U.S. Court of Appeals for the Federal Circuit upheld the trust responsibility of the United States to the Navajo Nation under a network of federal statutes and regulations as substantive sources of law that establish specific trust duties which mandate compensation for breach of those duties by the federal government. The Project is working closely with the attorneys representing the Navajo Nation to prepare an amicus brief in support of the Navajo Nation. Oral argument has been scheduled for Monday, February 23, 2009. In State of Hawaii v. Office of Hawaiian Affairs, the Supreme Court of Hawaii issued an injunction, prohibiting the State of Hawaii from selling or transferring "ceded lands" held in trust until the claims of the native Hawaiians to such lands have been resolved. The Project is working with the attorneys representing OHA, and NARF is preparing an amicus brief on behalf of NCAI in support of Native Hawaiian interests. Oral argument has been scheduled for February 25, 2009.
In addition, the Project has committed substantial resources to the petition for writ of certiorari in Navajo Nation v. U.S. Forest Service filed on January 7, 2009 which seeks review of a decision by an en banc panel of the U.S. Court of Appeals for the Ninth Circuit reversing a three-judge panel decision and holding that the U.S. Forest Service's approval of a permit allowing the use of recycled sewage waste-water to manufacture snow for a ski resort on the San Francisco Peaks a sacred-site for many American Indian Tribes does not violate the Religious Freedom Restoration Act ("RFRA"). The petition was prepared pro bono by Jeffrey Fisher of the Stanford Law School Supreme Court Clinic in collaboration with the attorneys who represented the tribes before the Ninth Circuit. The Project is assisting in the development of an amicus strategy in support of the petition which challenges the Ninth Circuit's conclusion that the only effect of the use of waste-water to manufacture snow at this sacred site is on the Indians' "subjective, emotional religious experience," which merely offends their "religious sensibilities" and diminishes their "spiritual fulfillment," but does not substantially burden their free exercise of religion.
You can find copies of briefs and opinions on the major cases we track on the NARF website (www.narf.org/sct/index.html).
Articles and Materials
What is the Tribal Supreme Court Project?
Update Memoranda of Cases
Online Archive of Court Documents
Glossary of Terms
We Stand United Before the Court -- by Tracy Labin, 37 New Eng. L. Rev. 695 (2002)
Supreme Court Bulletins (National Indian Law Library)
Links to Other Websites
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