OK, so now the United States has come out in opposition to the Navajo Nation’s cert petition in the Snowbowl case. A few comments:

1. Too bad any effort to persuade the Obama Administration to change course in this case failed. We understand that with very, very new SG Kagan on board there was likely little chance to make that happen, but it’s still disappointing. What would be really disappointing is if the government is unwilling to consider settlement and dismissal under Rule 56 if the Court does grant cert, where the government has time to consider its position.

2. We think it’s fairly well established that the government was more likely wrong than not that there is no split in authority under the “substantial burden” test. The en banc opinion in the Ninth Circuit was a big stretch, and went way beyond the other circuits that have confronted the question. The question now is whether the Supreme Court thinks this is the right vehicle to decide the question. There may be one decent reason to think it is not — these tribes have already litigated the Snowbowl to the Supreme Court once before in Wilson v. Block, 708 F.2d 735, and the Court denied cert back then.

But of course, that doesn’t really matter if the Court wants this one. And there’s no reason to think it doesn’t. How many times has the Court used Indian law and Indian religions as a battleground for its religious freedom doctrines? Bowen, Lyng, Smith I, Smith II….