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In The Hoop
TUESDAY, APRIL 16, 2002

Welcome to In The Hoop, Indianz.Com's occasional column about assorted Indian issues.

Byron R. White: 1917-2002
The Denver Post called him a "giant." The Washington Post said his rulings defied ideology. The Los Angeles Times wrote that he was a "no-nonsense jurist."

He was Supreme Court Justice Byron R. White. He died on Monday at the age of 84. He was the only living former member of the nation's highest court.

White joined the Court in the 1960s during a time of social upheaval. But according to those around him, he was a rock, always consistent and surprisingly conservative.

Known for his judicial restraint, White often broke with the majority on a number of pivotal cases. On Miranda, he said there was no need to inform suspects of their rights. On Roe v. Wade, he said there was no constitutional right to abortion.

When it came to Indian law, he was known to do the same. In the historic Santa Clara v. Martinez case, he was the only Justice to say tribes could be sued under the Indian Civil Rights Act (ICRA) in order to protect the rights of tribal members.

"The Court today," he wrote in 1978, "substantially undermines the goal of the ICRA."

In a 1985 case, he authored a dissent which said the state of Montana was free to impose taxes on lands leased by the Blackfeet Nation. In 1970, he disagreed with the majority and wrote that the Chickasaw, Choctaw and Cherokee nations ceased to exist as tribes at one point in the 20th century and weren't entitled to the Arkansas River bed.

Not all of his views were against tribal interests. In the first round of the influential Mitchell cases, which paved the way for Cobell and other pending trust cases, he argued that individual Indians on the Quinault Reservation in Washington should be entitled to all the rights and benefits of a normal trust under the General Allotment Act

"The Court holds, however, that the 'trust' established by [the act] is not a trust as that term is commonly understood," he wrote in 1980. "I do not find this argument convincing."

And in a prophetic note, he said: "Absent a retrospective damages remedy, there would be little to deter federal officials from violating their trust duties, at least until the allottees managed to obtain a judicial decree against future breaches of trust."

When he wrote for the court, White delivered opinions which also fell on both sides of the debate. He drafted the 1987 landmark ruling which said tribal gaming operations were free from state regulation by virtue of their sovereign status.

"State regulation would impermissibly infringe on tribal government," he wrote in the Cabazon case.

White was also responsible for the first Oneida Nation land claim ruling in 1974. Although the battle is still being fought, the unanimous decision set the stage for claims elsewhere.

By the time White retired in 1993, the Court was a changed place, with its rulings attacked by tribes as anti-Indian. But those close to White said he could be counted on to be fair and just.

"Eventually, the court changed, society changed, the issues changed," one of his former law clerks said when he retired, The New York Times reported.

"Byron White didn't change."

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