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Tribal Sovereign Immunity:
Another Un-confirmed Casualty in the War on Terrorism

Since 1978, when the United States Supreme Court issued its decision in Santa Clara Pueblo v. Martinez, the doctrine of sovereign immunity has shielded tribal governments from law suits, and has barred unwarranted intrusion by governments and individuals from unnecessarily interfering in the internal affairs of tribes. Absent an express waiver, this immunity places tribes outside the jurisdictional processes of federal, state, and local court systems, while at the same time, advances the federal policy of encouraging tribal self-determination and self-government. Today, under the backdrop of United States national security, and the pronounced "War on Terrorism," tribal sovereignty immunity faces perhaps its greatest challenge.

On March 31, 2003, the U.S. Supreme Court heard oral arguments in the case, COUNTY OF INYO: PHILLIP MCDOWELL, individually and in his official capacity as District Attorney for the County of Inyo; DANIEL LUCAS, individually and in his official capacity as Sheriff of the County of Inyo, Appellants v. BISHOP PAIUTE TRIBE; in its official capacity and as a representative of its Tribal members; BISHOP PAIUTE GAMING CORPORATION, d.b.a. the PAIUTE GAMING PALACE, Appellees. In its appeal, the County asked the U.S. Supreme Court visit the issue of whether a tribal governmental enterprise is protected under the tribe's immunity during the course of a welfare fraud investigation, brought by the County against three tribal members employed by the Gaming Corporation.

The implications this case brings to tribes across the country cannot be overstated. In light of the tribes' abysmal success record before the U.S. Supreme Court over the last few years, it is little wonder that tribal advocates, their attorneys, and those who question the relevance of tribal sovereignty today, are watching this case closely. By granting review, the U.S. Supreme Court may choose to merge the facts and legal issues underlying this case, thereby limiting dramatically tribal sovereign immunity over not only tribal enterprises, but over a tribal government's operations as well. Legal precedent set by the U.S. Supreme Court and extending over the broad reaches of Indian Country often emerges from cases involving small tribes located in or near urban areas, as in the present case.

The County and the Tribe are located near the City of San Diego. The Tribe operates a gaming casino operation, in furtherance of its inherent right to self-determine its economic future, and to provide income and support for its tribal members. It is important to note that Congress, in the 1970's extended under what is commonly known as Public Law 280, the criminal and civil jurisdiction of the state of California, over members of federally recognized tribes. It did so in apparent response to what some observers maintained was a, "chronic state of lawlessness within Indian Country." It is clear under the statute however, that Congress never intended to confer state jurisdiction over tribal governments themselves.

In February 2000, the County requested from the Gaming Corporation, personnel records of three of its employees who were subjects of a welfare fraud investigation initiated by the County. The Tribe informed the County that, subject to its rules regarding the privacy and confidentiality of such records, it required the employees' consent prior to the release of records. Such a position is entirely reasonable, and is consistent with other governmental entities policies regarding the processes governing access to records such as those requested by the County. Indian governments retain those sovereign powers not expressly taken away by Congress, and the jurisprudence of the United States Supreme Court has viewed tribal sovereign immunity as, "a considerable shield against intrusion of state law into Indian Country." See, e.g., Williams v. Lee, 358 U.S. 217 (1959).

In March 2000, the County District Attorney sought and obtained a warrant to search and seize tribal employee records possessed by the Tribe's Gaming Corporation. When the Tribe refused access to the employee records, the District Attorney, with the assistance of the County Sheriff, entered the Gaming Corporation's offices, used bolt cutters to cut the locks off the secured facilities, and carried off the employee records. Remarkably, in addition to the three employees named in the search warrant, the County seized the records of twenty- eight other employees during the course of serving the warrant.

Following this intrusion, the County again in July 2000, noticed the Tribe that it wished to obtain the personnel records of six more tribal members. The Tribe restated its position that, with employee consent, the tribe would produce the records the County had requested, offering to accept as proof of consent, the signed copies of welfare applications involving the named employees. When the County refused the Tribe's conditions, the Tribe sued the County in the District Court of California, seeking injunctive and declaratory relief.

The District Court upheld the County's position inter-alia; that the Tribe's sovereign immunity did not prohibit execution of the search warrant against the Tribe, and that the District Attorney and Sheriff were not liable for their conduct, as they were entitled to qualified immunity and the Tribe was not entitled to damages under 42 U.S.C. 1983, (Civil Rights Violations.) The Ninth Circuit reversed, finding that the County had exceeded its authority in executing the warrant against the Tribe's enterprise, that the County District Attorney and Sheriff were not entitled to qualified immunity, and that their actions violated the civil rights of the Tribe itself.

An analysis of this case raises several fundamental questions: 1) May a county obtain and execute a search warrant over a sovereign tribe's enterprise? 2) Tribal governments differ from state, local, and federal governments, in that other governments do not operate enterprises for profit; does tribal sovereign immunity protect those enterprises not related entirely to governmental functions; 3) Why didn't the County execute the search warrant on the individuals themselves, and their respective residences? 4) Can Tribal governments reasonably expect immunity from state intrusion, if their respective jurisdictions are characterized as islands of lawlessness?

In the County's Supreme Court briefs, tribes also are accused of harboring felons. Is it a stretch to take the County's argument a step further, and envision tribal sovereignty as an impediment to national security? If tribes are seen as harboring felons, might they also provide the same for "terrorists?"

Under the pretense of national security, the Justice Department and Congress have moved swiftly to undermine the rights and liberties of individuals. The USA PATRIOT Act, and its progeny, the proposed Domestic Security Enhancement Act, or PATRIOT Act II, whittle away at the civil rights of its citizens. Those who support the rule of law as it applies to individual citizens and tribal governments should pay close attention to the Court's ruling in this case.

Felix Cohen, known widely as the "father of Indian law," remarked fifty years ago that, "[l]ike the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith…" Tribal sovereign immunity is an important and necessary attribute of the right of tribes to make their own laws and be ruled by them. Without the doctrine, tribal sovereignty may whither under the pressures created by those whose interests and political desires circumvent that of the tribes.

John D. Gates earned his bachelor's degree in university studies from the University of New Mexico in 1990, and earned his law degree from the University of Iowa College of Law in 1993. An enrolled member of the Cheyenne River Sioux Tribe, Eagle Butte, South Dakota, John has worked for tribal governments in a number of capacities, primarily in the areas of criminal defense and prosecution, repatriation and gaming. He currently teaches federal Indian law and indigenous human rights courses in the Native American Studies Department at UNM, where he will be appointed to a permanent faculty position beginning in the fall of 2003.

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"For as adamant as my country has been about civil liberties during peacetime, it has a long history of failing to preserve civil liberties when it perceived its national security threatened. This series of failures is particularly frustrating in that it appears to result not from informed and rational decisions that protecting civil liberties would expose the United States to unacceptable security risks, but rather from the episodic nature of our security crises. But it has proven unable to prevent itself from repeating the error when the next crisis came along."
--Supreme Court Justice William Brennan
December 22, 1987

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