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Showdown looms in tribal sovereignty case
THURSDAY, FEBRUARY 20, 2003

The Bush administration is asking the Supreme Court to limit the reach of state jurisdiction in a case that could expand police powers over tribal governments.

In an amicus brief, the Department of Justice urged the court to reject an appeal by a California county whose officials used boltcutters to seize records belonging to the Bishop Paiute Tribe. Solicitor General Ted Olson and other government attorneys said the action was unwarranted.

"The tribes' sovereignty, while subordinate to the sovereignty of the United States, is not subordinate to that of the state," Olson wrote in the January 23 filing.

Standing on the opposite side of the federal government are a host of state and local law enforcement groups. Ten state attorneys general, the National Sheriffs' Association, the California State Sheriffs' Association and the Los Angeles Country district attorney have filed briefs, arguing that the 9th Circuit Court of Appeals, which sided with the tribe, created a loophole by declaring the seizure illegal.

"Not only would the tribe's claimed sovereign power to bar the execution of a state warrant allow criminals to operate untouched when cloaked by an official designation of tribal governmental status, but criminals anywhere within Indian country would benefit if the law enforcement community became unwilling to enter Indian country for fear of the personal liability that might attach to an inadvertent incursion upon the land or property of the tribal government," the states wrote.

"The geographical scope of this specter is substantial."

With oral arguments slated to take place next month, the case is drawing attention as a sequel to Nevada v. Hicks case, widely viewed in Indian Country as a blow to tribal rights. The Supreme Court in 2001 said state police powers apply to individuals who live on reservations.

"State sovereignty does not end at a reservation's border," wrote Justice Antonin Scalia for the majority.

The tribe and the Bush administration attempt to draw a distinction between Hicks and the current dispute. They argue that states have never possessed power over tribal governments. In this case, the records were seized from the tribe's casino, considered an "arm" of the tribe.

Where the two differ is whether the tribe has a right to sue Inyo County for the apparent breach. The Department of Justice says no while the tribe disagrees.

So far, no tribes or tribal organizations have submitted briefs in the case, although it was discussed at the United South and Eastern Tribes (USET) conference earlier this month and will be raised next week at the National Congress of American Indians (NCAI). NCAI President Tex Hall and Navajo Nation President Joe Shirley Jr. are heading a tribal initiative aimed at protecting tribal rights.

Oral arguments are scheduled for March 31.

Decision Below:
BISHOP PAIUTE TRIBE v. COUNTY OF INYO No. 01-15007 (January 4, 2002)

Relevant Documents:
Docket Sheet: No. 02-281 | Senate Testimony: Monty Bengochia on Supreme Court Precedents

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