Bishop Paiute Tribe can proceed with sovereignty complaint against county

Wednesday, July 19, 2017

The Bishop Paiute Tribe is returning to federal court to face off against a longtime nemesis in California.

In March 2015, the tribe sued Inyo County after one of its police officers was prosecuted for doing his job on the reservation. The sheriff also threatened to arrest other officers who drove on public roads while carrying their firearms.

But the tribe never got to hold the county accountable because a federal judge dismissed the case barely four months later. He said the complaint failed to raise a "justiciable case or controversy."

The 9th Circuit Court of Appeals, however, overturned that ruling in a unanimous decision on Wednesday. A panel of three judges said the case can proceed because it addresses an "actual and imminent threat" to the tribe's sovereignty and its police department.

"Withholding the court’s consideration and resolution of these disputes creates multiple hardships for the tribe, including ongoing legal costs, intrusions on the tribe’s ability to keep the peace and security of the reservation, misunderstanding and confusion surrounding the ability of the tribe and tribal PD to enforce tribal laws and prevent lawlessness on the reservation, and potentially an unlawful limitation on the tribe’s inherent sovereign powers," Judge Mary H. Murguia wrote in the 19-page decision.

"This case is clearly fit for judicial decision," Murguia added.

Indianz.Com on SoundCloud: 9th Circuit Court of Appeals Oral Arguments in Bishop Paiute Tribe v. Inyo County

The dispute stems from an incident that occurred on the reservation on Christmas Eve in 2014. Tribal officer Daniel Johnson responded to a call from a tribal citizen who was seeking protection from a non-Indian who is the subject of domestic violence orders in tribal court and state court.

According to the tribe's complaint, the non-Indian -- who is described as the ex-wife of the tribal citizen -- refused to leave the home and got into a scuffle with Johnson. He used his stun gun on the woman as a sheriff's deputy arrived on the scene.

Other county law enforcement also arrived and became aware of the tasering. After a short investigation, Johnson was charged with assault with a stun gun, false imprisonment, falsely representing himself to be a public officer and battery.

A day later, the county hit the tribe with a "cease and desist order" regarding its officers. The actions constitute an "actual and imminent" threat to the tribe's rights, the 9th Circuit determined.

"Here, the Inyo County district attorney’s office has already prosecuted one tribal PD officer, and ICSO communicated a specific threat of additional prosecutions," Murguia noted.

9th Circuit Court of Appeals on YouTube: Oral Arguments in Bishop Paiute Tribe v. Inyo County

According to the tribe, Johnson, who has more than 25 years of law enforcement experience, has been assigned to desk duty until his county case is resolved. With just four officers on the force, his removal has a big impact on the tribe. In the last two years alone, officers responded to 469 calls and issued 340 reports, a large number for a reservation with less than 1,800 residents.

Tribal officers do not exercise criminal jurisdiction over non-Indians but tribal law authorizes them to arrest and detain non-Indians until they can be delivered to outside authorities like the county. The lawsuit seeks a declaration affirming its right to continue doing that.

Tribal law also authorizes officers to enforce protection orders like the one that led to the lawsuit. Additionally, Section 905 of the Violence Against Women Act of 2013 recognizes the authority of tribes to issue and enforce protection orders involving "any person" regardless of race or tribal status.

Officer Daniel Johnson is at the center of the sovereignty clash between the Bishop Paiute Tribe and Inyo County in California. Photo: Bishop Paiute Tribe Newsletter January 2014 [No longer available on the internet]

The dispute isn't the first high-profile clash between the tribe and the county. More than a decade ago, the tribe sued the county after officials used bolt cutters to break into secure areas of the Paiute Palace Casino on the reservation. They ended up seizing tribal records without the tribe's permission.

The 9th Circuit ruled that the county's actions infringed on the tribe's sovereignty in a decision that foreshadowed the one in the current case. But the U.S. Supreme Court in May 2003 reversed course and held that the county officials could not be sued at all.

While the outcome wasn't as bad as anticipated, it fit a pattern of tribal interests repeatedly seeing defeat at the nation's highest court, especially when pitted against state and local governments. According to the Tribal Supreme Court Project, between 2006 and 2016, tribes lost nine out of 11 cases that went before the justices.

Turtle Talk has posted documents from the new case, Inyo County v. Bishop Paiute Tribe.

9th Circuit Court of Appeals Decision:
Inyo County v. Bishop Paiute Tribe (July 18, 2017)

U.S. Supreme Court Decision in Inyo County v. Bishop Paiute Tribe:
Syllabus | Opinion [Ginsburg] | Concurrence [Stevens]