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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]

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