Tuesday, April 01, 2003
Copyright © Las Vegas Review-Journal

Supreme Court considers American Indian sovereignty issue

WASHINGTON -- Justice Antonin Scalia challenged the concept of tribal sovereignty Monday while other members of the U.S. Supreme Court pondered whether a state is authorized to seize records from an American Indian casino.

Scalia said Congress never has passed legislation recognizing the sovereign immunity of tribes, noting the concept was created by the Supreme Court.

"I'm puzzled why tribes should receive greater protection than England or Germany," Scalia said. "Why should we give greater protection to this lesser sovereignty that consists of an Indian tribe?"

Scalia seemed to be the least sympathetic justice to arguments of lawyers for the Paiute-Shoshone Indians of California, who sued Inyo County after county officials seized records from the tribe's Paiute Palace Casino on March 23, 2000.

Inyo County officials appealed to the Supreme Court after the 9th U.S. Circuit Court of Appeals ruled the county violated the tribe's sovereignty and was liable for unspecified damages.

American Indian law observers are watching the case closely to see if the court continues what many tribes consider a hostile trend -- including a 2001 ruling in a Fallon Paiute Shoshone case, Nevada v. Hicks, which weakened tribal sovereignty.

Rep. George Miller, D-Calif., a staunch advocate of tribal gambling, was among those in the audience.

Justices Ruth Bader Ginsburg and Stephen Breyer seemed to be the most supportive of tribal sovereignty.

Ginsburg challenged John Kirby, the San Diego lawyer representing Inyo County, when he argued tribes could impede local criminal investigations unless forced to comply with search warrants.

Kirby said tribes should not be allowed to challenge a search warrant in court until after the warrant has been executed.

"That would be after the horse is out of the barn," Ginsburg said. "That's not going to soothe wounded feelings. To say that you can stop a search after the fact is not much of a remedy, is it?"

Breyer seemed puzzled about why the county and tribe were not able to work out an agreement.

"The county goes to the tribe and says, 'We can't tell you who (we're after) or why -- just give us all your records,'" Breyer said. "Under that circumstance, the tribe would certainly have a point."

The Bush administration sided with the Paiute-Shoshone Indians. Barbara McDowell, assistant to the solicitor general, told the court that search warrants are a "threat to the dignity of sovereign immunity."

Reid Chambers, a Washington, D.C., lawyer representing the tribe, said the Indian Gaming Regulatory Act of 1988 does not give state officials jurisdiction over tribal casinos.

"The tribe is not subordinate to the state of California. It is subordinate to the United States," Chambers said.

Chambers also said the 1988 law restricts the way tribes spend money from their casinos. He said the Paiute-Shoshone tribe uses gambling revenues to pay for a health clinic and other social programs.