indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Scalia sides with tribe but view carries no weight
Wednesday, March 24, 2004

It's not often that U.S. Supreme Court Justice Antonin Scalia sides with tribes or environmentalists but that's exactly what happened on Tuesday.

In a closely-watched case affecting environmental policy in the Florida Everglades, Scalia filed the sole dissent. The short, two-page opinion backed the Miccosukee Tribe's primary contention that a water district indeed qualifies as a polluter under federal law.

That view was supported by the remaining eight justices. But unlike his colleagues, who sent the case back to an appeals court to determine whether the water district needs a federal clean water permit, Scalia would have handed the tribe an outright victory in the long-running dispute.

"I see no point in directing the court of appeals to consider an argument it has already rejected," he wrote.

Yet in typical Scalia fashion, his opinion was not based on the tribe's argument that its ancestral land, culture and livelihood have been harmed by Florida's water management practices. For the conservative justice, who has been criticized by tribal leaders for his stance in Indian law cases, it was all about legal theories, not legal realities.

An indicative sentence reads, "I dissent, however, from its decision to vacate the judgment below on another ground, Part IIóC, ante, and to invite consideration of yet another legal theory, Part IIóB, ante." Those antes refer to parts of the majority's opinion that Scalia didn't quite like.

So even though Scalia was on the tribe's side, there was nothing in the dissent to suggest a change in heart when it comes to Indian Country. Other justices, on the other hand, have written opinions that sound as if they were drafted by a tribal leader.

"The majorityís sweeping opinion, without cause, undermines the authority of tribes to 'make their own laws and be ruled by them,'" Justice Sandra Day O'Connor once wrote in a critique of her colleagues in Nevada v. Hicks, one of the many decisions that tribes cite as an erosion of their sovereignty.

Scalia, tribal leaders and their advocates point out, has been behind a number of those rulings. "State sovereignty does not end at a reservation's border," he wrote for the majority in that same case, decided in June 2001.

And even when Scalia isn't armed with his pen, he makes comments during oral arguments that anger and annoy. "Sometimes his agenda interferes with his logic," Charles A. Hobbs, an attorney who represents tribes, once recalled of the justice.

"To now extend the government's power to subject people to this kind of trial beyond members of [the] tribe ... even to non-Indians, that's a step I'm not prepared to contemplate," Scalia said this past January in U.S. v. Lara.

"I had thought that we -- that our cases make very clear that [tribal] sovereignty is a peculiar and lesser kind of sovereignty," he said during arguments in Inyo County v. Bishop Paiute Tribe in April 2003.

"I mean, suppose I leave my -- my house to the City of Falls Church in trust for the people of Falls Church," he said during arguments in U.S. v. White Mountain Apache Tribe in December 2002. "What -- what obligations are imposed on the City of Falls Church?"

Scalia may get a chance to impose his will on Indian Country should he draft an opinion in the Lara case. A decision is expected by the summer.

Until then, he's basking in controversy over a duck-hunting trip he took with Vice President Dick Cheney. Ethics scholars and an environmental group raised conflict of interest allegations because the trip occurred as a case in which Cheney is a named defendant is pending.

Scalia, of course, rejected a motion to step down from the case. "The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a government plane," he wrote last week.

"If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined," he concluded.

Miccosukee Tribe Decision:
Syllabus | Opinion [O'Connor] | Other [Scalia]

Related Stories:
Scalia won't step down from Cheney energy case (03/19)
Supreme Court hears tribal powers case (01/22)
Cantwell stresses importance of judicial picks (06/17)
Tribal fears in Supreme Court case go unrealized (05/20)
Supreme Court takes on race in college admissions (04/02)
Supreme Court tussles with tribal sovereignty case (04/01)
Supreme Court case too close to call for some (04/01)
Supreme Court case pits tribes against states (03/31)
Supreme Court panel's predictions mostly came true (03/19)
Supreme Court upholds common law trust claim (03/05)
High court ruling makes 'passive' trustee of U.S. (3/5)
A mixed bag for Indian trust (3/5)
Supreme Court splits trust decisions down the middle (03/04)
Showdown looms in tribal sovereignty case (02/20)
Appeals court nominees draw fire (1/30)
Bush pick worked on Hicks case (1/30)
Navajo 'deception' gets Supreme Court hearing (12/03)
Trust duties to Apache Tribe questioned (12/03)
Landmark law narrowly escaped Supreme Court (10/16)

Copyright © 2000-2004 Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Rapid City leader calls for tax on alcohol sales (2/27)
Mark Trahant: Beautiful trend emerges with power of Native vote (2/27)
Ivan Star: Lakota traditional history tells the true untold stories (2/27)
Audio: House Appropriations Committee hearing on BIA budget (2/27)
Senate Indian Affairs Committee to hold hearing on irrigation bill (2/27)
National Indian Gaming Commission choice gets another hearing (2/27)
Kevin Abourezk: Omaha language advocate passes on at age 58 (2/27)
Gyasi Ross: Yawna Allen shares her Native and African ancestry (2/27)
Frank Hopper: Alaska Native Brotherhood was about resistance (2/27)
Stanley Heller: Don't forget the Sand Creek Massacre in Colorado (2/27)
Cherokee Nation chief faces at least four challengers in election (2/27)
BIA and DOJ seek to mediate Cayuga Nation leadership dispute (2/27)
Non-Indians guilty for hunting incidents on Montana reservation (2/27)
Man from Te-Moak Tribe pleads guilty to voluntary manslaughter (2/27)
Administrator for Alaska tribe cuts her position out of the budget (2/27)
Opinion: Find common ground on Indian mascots in Connecticut (2/27)
Hannahville Indian Community starts $8M casino expansion work (2/27)
Wilton Rancheria still waiting for BIA movement on casino project (2/27)
Lytton Band paid $4.6M to use land as parking for Class II facility (2/27)
Opinion: Menominee Nation might turn to tokers instead of poker (2/27)
Opinion: Poarch Creeks come with slot machines and marijuana (2/27)
Updates from National Congress of American Indians meet in DC (2/26)
Native Sun News: Rosebud Sioux Tribe leader sidelined by council (2/26)
James Giago Davies: Native activism must embrace all relations (2/26)
Donna Ennis: Obama budget supports tribal self-determination (2/26)
Rich Winter: Let's keep Lakota Nation Invitational in Rapid City (2/26)
Oglala Sioux Tribe wants Lakota Nation Invitational out of Rapid (2/26)
Former Sisseton Wahpeton chairman joins marijuana company (2/26)
Hoopa Valley Tribe places marijuana referendum on April ballot (2/26)
Blog: Firm saves billions by exploiting Native 'loophole' at FCC (2/26)
Klamath Tribes aid investigation into stolen artifacts in Oregon (2/26)
Alaska Native community still waiting on funding for relocation (2/26)
Alaska Native lawmaker in hospital after emergency at capitol (2/26)
Elise Patkotak: Alaska must acknowledge high rate of violence (2/26)
Mishewal Wappo Tribe waits for decision in recognition lawsuit (2/26)
Muscogee Nation seeks 5000 workers for big casino expansion (2/26)
Little River Band expects wait for $180M off-reservation casino (2/26)
Northern Arapaho Tribe plans to open casino food court in May (2/26)
Cherokee Nation promotes citizen to manager of $80M casino (2/26)
Tribes share nearly $16M in casino revenues with New Mexico (2/26)
Connecticut tribes face threat from casinos in Massachusetts (2/26)
Updates from National Congress of American Indians meeting (2/25)
Native Sun News: Artist Del Iron Cloud wins top award at show (2/25)
Witness List: Senate Indian Affairs Committee budget hearing (2/25)
Steve Russell: Cherokees learned discrimination from colonists (2/25)
Mary Pember: Tlingit masks appraised on 'Antiques Roadshow' (2/25)
Julianne Jennings: Keep talking about race in American history (2/25)
Bill to create day to honor late Elouise Cobell stalls in Montana (2/25)
Washington tribes head to trial in dispute over fishing grounds (2/25)
Mobile dental clinic takes service to Navajo Nation communities (2/25)
Shingle Springs Band gun range draws questions from neighbors (2/25)
NCPR: St. Regis Mohawk Tribe continues land claim negotiations (2/25)
Opinion: Oklahoma attempts to rewrite role of Whites in history (2/25)
Opinion: Tribes get ready to discuss marijuana in Indian Country (2/25)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.