Supreme Court case too close to call for some

TUESDAY, APRIL 1, 2003

With at least three Supreme Court justices "hostile" to tribal interests, Indian law experts on Monday forecast a tight ruling in the latest sovereignty dispute.

At a panel discussion on the Inyo County v. Bishop Paiute Tribe case, Justice Antonin Scalia was singled out as the primary opponent. Commentators said his questions about the commercial nature of tribal casinos and whether they should be immune from state police powers were particularly telling.

"We have to listen to Justice Scalia characterize Indian tribes as peculiar, lesser sovereigns," said Mark Van Norman, executive director of the National Indian Gaming Association (NIGA) and a former Department of Justice official.

Chief Justice William H. Rehnquist, Justice Clarence Thomas, who almost always votes with Scalia, and Justice Anthony Kennedy were identified as other members of the anti-tribal block. Their votes alone could lead to a tight 5-4 decision against the tribe, panelists said.

"This one's a hard one to call for me," said Charles A. Hobbs, a Washington, D.C., lawyer who argued the historic Mitchell trust law case in the 1980s.

But there were some surprises at the hearing, panelists pointed out, that could shift the landscape. Justices Ruth Bader Ginsburg, who wrote the recent 6-3 opinion striking down the Navajo Nation's recent trust claim, asked particularly "negative" questions of the tribe, Hobbs noted.

On the other hand, David H. Getches, a University of Colorado law professor, said Rehnquist appeared to making the case for the tribe by pointing out that the tribe's rights were at stake. "He saw a distinction between Hicks and this case," he said, referring to the 2001 decision which involved state police powers over individual tribal members.

Justice Sandra Day O'Connor typically asks many questions during Indian law cases but seemed quiet yesterday, commentators observed. Still, her remarks about the actions of the county sheriff who used boltcutters to seize tribal records focused on "who really was the bad guy here," said Riyaz Kanji, a Michigan-based attorney whose law firm helped prepare an amicus brief for the National Congress of American Indians (NCAI), the National Indian Gaming Association (NIGA) and 17 tribes.

Justice John Paul Stevens, on the other hand, "is a little bit of a tougher nut" to crack, added Kanji. "He's going to be thinking hard about immunity," he said. Van Norman characterizes Stevens as a "swing vote" in the case.

Justices David Souter seemed to be in the tribe's court, said Hobbs. "He understands the case more or less the way we do," he remarked.

Justice Stephen G. Breyer "was very much true to form" with his questions about the impact of the case on tribal rights, said Kanji. "One can maintain tribal immunity and still have a lot of options open for law enforcement" is his philosophy, Kanji said.

The difficult case made it difficult for panelists to offer solid predictions on the outcome. Getches described the "best case" scenario as a 6-3 vote for the tribe and the worst as a 7-2 reversal. In the latter instance, Souter and Breyer would side with the tribe, he said.

Hobbs said it was "too close to call" because it could go either way. Ginsburg, Kennedy and even Breyer gave him bad "vibes," he said.

Kanji was decidedly more upbeat and predicted the the tribe would win on a 6-3 vote. "I'm cautiously optimistic," he said.

Van Norman said he was being realistic in predicting a close vote against the tribe. "I think this case shows us why we shouldn't be in front of the Supreme Court," he said. "The outcome is kind of on a razor's edge."

Today on Indianz.Com:
Supreme Court tussles with tribal sovereignty case (4/1)

Supreme Court Briefs:
Inyo County v. Bishop Paiute Tribe