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O'Connor defends tribes amidst squabbling
JUNE 26, 2001

Leave it up to Sandra Day O'Connor.

Appointed by President Ronald Reagan in 1981, the first female Supreme Court Justice often makes or breaks a case depending on the way she votes. A Republican, she is widely considered by legal scholars to have been behind last year's controversial and unsigned opinion which effectively put George W. Bush in the White House.

Now, as the October 2000 term wraps up and speculation abounds that she will leave the bench, O'Connor is in the middle of perhaps the most perplexing debate the Court has seen since that fateful December day. Yesterday's ruling in Nevada v. Hicks -- as one Indian lawyer put it -- was one of the hardest the Justices have decided. A Nevada state official added that it was one of the ten most difficult this term.

Although the decision to reverse the case in favor of Nevada was unanimous, the Court was actually split 6-3 on the authority of tribal courts. Amid the squabbling of how the dispute might be resolved, O'Connor emerged as the defender of tribal sovereignty, spearheading a concurrence which might be better classified as a silent dissent.

"The majority’s sweeping opinion, without cause, undermines the authority of tribes to ‘make their own laws and be ruled by them,’" begins O'Connor as she chastises her colleagues for unfairly limiting tribal sovereignty.

O'Connor makes her case for letting tribal courts do their job in order to prevent a seemingly endless stream of litigation from taking up the valuable time, and money, of the court system. Why can't state officials be given "the same protection in tribal court that they would be afforded in state or federal court," she asks.

In the days of an increasingly lawsuit-minded society, she makes a good point. It was only after 10 years that the state of Nevada finally prevailed and even now, the case might not be over yet.

But the majority isn't responding too kindly to O'Connor's argument.

"The concurrence manages to have its cake and eat it too – to hand over state law enforcement officers to the jurisdiction of tribal courts and yet still assure that the officers' traditional [sovereign] immunity," writes Justice Antonin Scalia.

"What wonderful magic."

O'Connor isn't alone in her difference of opinion, though. In a separate concurrence also masking as a dissent, Justice John Paul Stevens argues that tribal courts do have authority to hear the types of federal civil rights lawsuits the majority struck down yesterday.

But O'Connor carries her views further and says the majority invented new limits on tribal sovereignty without reason. Of course, the Court appears to do this often, leaving O'Connor to claim that the majority has given non-Indians the "freedom to act with impunity on tribal land based solely on their status as state law enforcement officials."

Scalia call O'Connor's conclusion "a happy ending."

Yet what O'Connor offers in her opinion is something even conservatives -- and Republicans -- like Scalia might otherwise support. Consensual agreements between tribes and states and local governments are quickly becoming the norm in Indian Country and are being pushed by the Bush administration.

O'Connor argues that cross-deputization of law enforcement officers, child support agreements, and tribal-state compacts are the types of cooperation which could serve to affirm tribal authority instead of undermine it.

"Depending upon the nature of the agreement, such relationships could provide official consent to tribal regulatory jurisdiction [over non-Indians]," writes O'Connor.

The position is one which tribes would probably consider reasonable and, in the age of a Supreme Court seemingly aligned against tribes, enlightening.

O'Connor denies she will be stepping down any time soon.

Today on Indianz.Com:
State officials barred from tribal suit (6/26)

Relevant Links:
The Supreme Court -
The Supreme Court Justices, a Washington Post Guide -

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