indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 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:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: First Nations Sculpture Garden breaks ground (8/28)
Native Sun News: Lower Brule Sioux Tribe misses Cobell deadline (8/28)
James Giago Davies: There's trouble brewing on the racist horizon (8/28)
Simon Moya-Smith: A Republican slur on our indigenous relatives (8/28)
Kyle Mays: Connections between Creole and Native communities (8/28)
Mike Myers: Tribes deserve our own seats on international level (8/28)
Opinion: Supreme Court should pass on Jim Thorpe NAGPRA case (8/28)
Navajo Nation to reopen irrigation canal after Gold King mine spill (8/28)
Native executive wasn't surprised by 'No Natives please' rental ad (8/28)
Tribal members in Minnesota assert treaty right to gather wild rice (8/28)
County hopes to revive foreclosure lawsuit against Cayuga Nation (8/28)
Washington Supreme Court affirms legality of tribal gas compacts (8/28)
County sheriff questions authority of tribal officers in New Mexico (8/28)
Nooksack Tribe concerned about impact of slowly melting glaciers (8/28)
Supreme Court Justice Thomas favors conservative leaning briefs (8/28)
Mashpee Wampanoag Tribe prepares for decision on gaming plan (8/28)
San Manuel Band hires executive director for gaming commission (8/28)
Kumeyaay Nation still waiting to repatriate ancestors despite win (8/27)
IHS plans to expand service area for Aquinnah Wampanoag Tribe (8/27)
Native Sun News: Health workers join together for race relations (8/27)
Ivan Star: Oglala Sioux government fails majority of our people (8/27)
Steve Russell: Donald Trump isn't the only crazy one in the race (8/27)
Harlan McKosato: Isleta Pueblo opposes city development plan (8/27)
Julianne Jennings: People of color must unite for justice or else (8/27)
Hillary Clinton campaign reaches out to tribal voters in Nevada (8/27)
EPA releases internal report into Gold King Mine spill disaster (8/27)
Southern Ute Tribe hosts top DOJ officials at crime conference (8/27)
Paper must ask to attend Eastern Cherokee council meetings (8/27)
Koi Nation praises charges against man accused of looting site (8/27)
Pokagon Band breaks ground on village with housing complex (8/27)
Tribes provide fire services on and off reservations in California (8/27)
Chumash Tribe signs new Class III casino compact in California (8/27)
Tohono O'odham Nation heading back in court in casino lawsuit (8/27)
Ak-Chin Indian Community announces $100M casino expansion (8/27)
Lower Sioux Indian Community debuts $22M casino expansion (8/27)
Little Traverse Bay Bands plan new development at old casino (8/27)
Seminole Tribe wins major ruling in taxation dispute in Florida (8/26)
Senate Indian Affairs Committee sets hearing on EPA mine spill (8/26)
Indian Health Service to hold a second meeting for LGBT issues (8/26)
Obama picks for National Advisory Council on Indian Education (8/26)
Native Sun News: Lakota grandmother debuts film about uranium (8/26)
Native Sun News: Miss Crow Fair thanks family for strong support (8/26)
Terese Marie Mailhot: Beware of vicious and deadly gossip on rez (8/26)
Former Navajo Nation leaders blamed for lack of women's shelter (8/26)
Man charged with murder of Crow Tribe couple could face death (8/26)
Former executives charged with theft from Chippewa Cree Tribe (8/26)
Northern Arapaho Tribe asks Obama to drop appeal in eagle case (8/26)
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.