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TUESDAY, APRIL 1, 2003

The Supreme Court tackled on Monday what was arguably one of its most difficult cases of the current term, debating whether to intrude on the rights of tribal governments.

During a one-hour hearing, justices posed questions that covered all ends of the legal spectrum. Some wondered if tribes should enjoy sovereign immunity, how far state police powers extend over Indian Country and whether they would be able to fashion a solution to a dispute that has pitted tribes against states.

"If we decide against you, all you have to do is go to the federal government and convince them this is important," offered Justice Stephen G. Breyer, "and get them to deal with it."

At issue in Inyo County v. Bishop Paiute Tribe is a March 2000 search and seizure of records owned by the Bishop Paiute Tribe of California and whether the tribe's rights were violated by it. Inyo County law enforcement used boltcutters to break into the tribe's casino as part of a criminal welfare fraud investigation that was later dropped for lack of probable cause.

Paul D. Kirby, attorney for the county, said public safety was at risk. Arguing that tribal immunity from the search warrant was without foundation in the Constitution, federal law or "any rational public policy," he asked the court to reverse a 9th Circuit Court of Appeals decision against the county.

"If not, then what we end up with is a gap in criminal jurisdiction," he said.

But when he suggested tribes be required to go to court every time search warrants are executed against their property, he was met with skepticism by some members. "What good is it to the tribe to go to court after the horse is out of the barn?" asked Justice Ruth Bader Ginsburg. "I don't follow it."

Justice Sandra Day O'Connor said cooperation seemed to be a better route to take, a view shared a group of tribes and states who submitted court briefs highlighting law enforcement agreements that cover these types of situations. "I just thought it was a little curious," she wondered, "if some means were offered to solve this, why are we here?"

Touching on a centerpiece of the county's argument, Chief Justice William H. Rehnquist drew a distinction from 2001's Nevada v. Hicks, which upheld a state search against a tribal member. In this case, he countered, "the search warrant was issued on the tribe itself."

Justice Antonin Scalia focused several questions on the nature of the Bishop Paiute casino as a commercial business. Saying tribes are "peculiar" and "lesser" sovereigns, he compared the case to foreign governments that operate businesses within U.S. borders.

"I'm perplexed why the United States wants to accord the tribe's commercial enterprise greater immunity than a foreign state," he told a Department of Justice attorney.

Barbara B. McDowell, an assistant to Solicitor General Ted Olson, argued on behalf of the tribe on the immunity issue but sided with the county on whether the tribe can sue. "The execution of a state warrant is a particular threat to the dignity of a sovereign tribe," she said.

Reid Peyton Chambers, a Washington, D.C., attorney, handled the case for the tribe. He urged the court to uphold long-held principles of Indian law that shield tribes from state intrusions.

"Here, the tribe is not subordinate to the state of California," he said.

Addressing the foreign government analogy, Chambers noted that Congress has never enacted laws to limit tribal immunity. And he said the county's solution -- to require tribes to go to court -- wasn't workable.

"The rule should encourage cooperative agreements on both sides," he told the court.

The case is being closely watched in Indian Country as possible follow-up to Hicks. Some of the largest and most prominent tribal organizations submitted briefs in hopes of countering 13 states and law enforcement groups that argued against tribal sovereignty. A decision is expected this summer.

Supreme Court Briefs:
Inyo County v. Bishop Paiute Tribe

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

Relevant Links:
Paiuite Palace Casino - http://www.paiutepalace.com
Inyo County - http://www.countyofinyo.org

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