Tribal fears in Supreme Court case go unrealized
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TUESDAY, MAY 20, 2003

Justice Scalia didn't write the opinion. Tribal sovereign immunity wasn't overturned. And tribal casinos weren't separated from tribal governments.

These were some of the fears expressed by Indian law experts and commentators in the wake of oral arguments in the Inyo County v. Bishop Paiute case. Indian County breathed a sigh of relief as none were realized with yesterday's unanimous decision from the Supreme Court.

But there was little to cheer about as the Bishop Paiute Tribe lost a high-profile battle against local law enforcement who entered the tribe's casino armed with bolt cutters and left with private employee records. The justices, typically fractured on Indian law cases, said they didn't have enough information to decide whether the tribe's sovereign rights were violated by Inyo County's actions.

It wasn't like that on March 31 when some of the members of the court seemed pretty opinionated about what happened -- and what was at stake. "I am perplexed at why the United States wants to accord the tribe's commercial enterprises greater protection than is accorded to England or Germany or any foreign sovereign," Justice Antonin Scalia said in remarks that drew scorn from several observers.

"If you're saying every time the county can do that and that all the tribe has is an after-the-fact determination by some magistrate that the county was wrong, it's not much of a remedy, is it?" asked Justice Ruth Bader Ginsburg, who ended up writing the majority opinion.

"I just thought it was a little curious that if some means of solving this had been offered, why are we here?" Justice Sandra Day O'Connor wondered out loud.

The answers to those questions weren't found in yesterday's opinion. The only clear statement that emerged was that a tribe is not a "person" -- not exactly shocking from a court system that has ruled that a building is also not a "person" and that a comma, if strategically misplaced, can wreck a tribal case.

"This was an easy way for the court to punt the main issue of the case," said Riyaz Kanji, a former Supreme Court law clerk who helped two inter-tribal organizations draft an amicus brief.

Several attorneys general and law enforcement groups sought a clear statement on state police powers over tribal governments. They warned that reservations would become "enclaves" of lawlessness if states weren't allowed to extend their criminal investigations to Indian Country.

On the other side were tribal governments and their allies in state government and the Bush administration. They simply prayed that nothing disastrous would happen.

Neither side got exactly what it wanted. Only Inyo County, the ones with the bolt cutters, escaped unscathed.

"I think this case shows us why we shouldn't be in front of the Supreme Court," said Mark Van Norman, executive director of the National Indian Gaming Association (NIGA), at a panel discussion on the case back in March. "The outcome is kind of on a razor's edge."

The holding adopted by the court -- that a tribe cannot sue under 42 USC Section 1983 -- was one of the few points of agreement among the different interests. The county, the Department of Justice and the states, even those that supported tribal rights, all said this was clear. Only the Bishop Paiute Tribe disputed this point.

But the question of whether the tribe can find another law, or a more general common law remedy, to sue the county appears undecided. Some lawyers yesterday speculated that there might be an Inyo County II decision down the line, a not uncommon event in Indian law cases.

Get the Decision:
Syllabus | Opinion [Ginsburg] | Concurrence [Stevens]

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:
Paiute Palace Casino -
Inyo County -

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Oral argument transcript posted in Inyo County case (04/29)
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Supreme Court hears sovereignty case (3/31)
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Ore. withdraws from states' Supreme Court brief (3/27)
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