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Landmark law narrowly escaped Supreme Court
WEDNESDAY, OCTOBER 16, 2002

Every year, the Supreme Court is asked to review tens of thousands of cases. It turns down the vast majority but never gives a reason.

That's not what happened on October 15, 1996. That was the day the Justices passed up a chance to strike down a cornerstone of federal Indian policy.

In a case with nationwide implications, the state of South Dakota challenged the Indian Reorganization Act (IRA), a 1934 law designed to reverse a failed attempt to "civilize" Indians. A key provision authorizes the Department of Interior to restore land for tribes that was lost through legal and illegal methods.

South Dakota had secured a landmark victory at the 8th Circuit Court of Appeals. In a 2-1 decision, a three-judge panel said the IRA went too far.

"This case illustrates the problems created by the exercise of such unrestricted power," wrote Circuit Judge James B. Loken for the majority.

The Clinton administration naturally appealed. More than 40 tribes jumped in with friend of the court briefs.

But a funny thing happened on the way to the Supreme Court. Former Secretary of Interior Bruce Babbitt drafted new land regulations in response to the 8th Circuit ruling.

The decision definitely generated a response.

In light of the changes, six members of the Supreme Court decided the dispute was moot and expunged the South Dakota victory from the books. It was as if the case never happened.

Three Justices weren't swayed by the Interior's "about face." Led by Justice Antonin Scalia, they issued a scathing dissent that took the Clinton administration to task the apparent bait and switch.

"Today's decision encourages the government to do what it did here: to 'go for broke' . . . rather than get the law right the first time," wrote Scalia. He was joined by Justices Sandra Day O'Connor and Clarence Thomas.

The ruling saved tribes from a potentially negative decision. But it opened the floodgates to legal challenges to the land-into-trust process, some of which remain in the court system today.

The ramifications also live on in the minds of some who believe Indian policies are open game. The state of Connecticut, for example, recently argued before the Supreme Court that the IRA doesn't apply to tribes recognized after 1934.

And there is still hope by South Dakota that its constitutional challenge will once day be decided once and for all. "This is front and center with the secretary's Indian affairs authority," said a Department of Justice attorney at a court on the issue last week.

Relevant Documents:
Supreme Court Order and Scalia Dissent (October 15, 1996)

Relevant Links:
The Indian Reorganization Act - http://www.warmsprings.com/history/treaty/wh_act.htm
Land-into-trust, National Congress of American Indians - http://www.ncai.org/main/pages/
issues/governance/land_into_trust.asp