WASHINGTON - Those at the U.S. Supreme Court argument in the Paiute Shoshone case may have been disappointed that it was not a forthright trading of volleys over state versus tribal rights.
The issue up for the high court's discussion was whether the Inyo County, California, district attorney's forceful seizure of the Paiute Palace Casino's employee records violated the tribe's sovereignty.
John Douglas Kirby, for Inyo County, argued first. Justice Sandra Day O'Connor got formalities out of the way quickly, essentially asking why the County and the tribe had to go all the way to the Supreme Court to solve a spat over disclosure of information. Justice Stephen Breyer asked ironically, "Suppose you told the tribe why you wanted the records. You couldn't do that simple thing?"
Is this Family Court?
Inyo County straightened its halo and solemnly told the justices there was no other way to work it out. Kirby said they went to the tribal attorneys and were told to get a search warrant. He said there was a clear history of working with the tribe to resolve it.
Had some passerby overheard this exchange, or perhaps been loitering afterwards on the white marble steps before the great court's portico, they might have thought the Supremes were taking up divorce actions.
In a post-argument interview, Kirby said, "Here we have two sides, both of whom thought they were cooperating fully. As it resulted, they came to a point where neither side felt the other was continuing to cooperate, and that is the situation in relationships throughout the world. Both in our families, of course, and in business."
Profitable, yes; commercial, no
In the argument, the justices soon moved to the question that interested them: Is a tribe's casino a commercial enterprise, or a tribal government enterprise? If it is part of tribal government, then its records are protected from search and seizure by the state.
Justice Breyer offered a short and sweet solution to Reid Chambers, representing the tribe. "How about, where it's commercial, the tribe loses; where it's non-commercial, the tribe wins."
Chambers declared that the Indian Gaming Regulatory Act makes the casino a non-commercial, tribal government enterprise, because the proceeds from the casino must go to the government, to be used to benefit tribal members.
Justice Antonin Scalia questioned Chambers closely about the casino corporation. Chambers acknowledged that there was a corporation, but said it was actually the tribal government that controlled the business.
Scalia asked, "You say the corporation doesn't own the land; doesn't own the slot machines. What does it do?"
Children of a lesser sovereign
Between Justices Scalia and Breyer, various countries of the world were named as foils to the casino enterprise. Foreign sovereigns operating businesses in this country are subject to state laws, including search warrants. Scalia questioned giving the tribe greater protection than that given to England, for example. (Later he substituted Paraguay.) "Why give greater protection to this lesser domestic sovereignty," he asked.
Breyer challenged Chambers' reasoning that the casino is not commercial because the tribal government must use the gaming proceeds to benefit the tribe. Breyer asked how the casino differs from the government of Finland operating a shipping business in the United States, putting the revenues into social services for the Finnish people. Sovereign immunity turns on the nature of the operation, he said, not on the notion of revenues going to a government.
Chambers answered that tribes can't put the casino profits into the stock market or other speculative investments. The money must go into the tribal treasury. After the argument he said: "I hope I persuaded them it's not (commercial), any more than a state lottery would be. It's not a commercial enterprise like operating a ski resort or a trading post."
Who suffers more?
The justices were not letting Inyo County walk around to home base, however. While Kirby was presenting, Breyer suggested the following: "If we decide for you, any magistrate can allow the state officials to go into all the tribal documents. If we decide against you, all it means is you go to the federal government and they'll deal with it. Am I wrong?"
At the closing of the argument, Kirby returned for four minutes, saying that the Ninth Circuit Appeals Court ruling in favor of the Paiute Shoshone tribe would trump the state's rights under the Sixth Amendment to gain exculpatory evidence.
Are you an individual, or a person?
An interesting thing: The Ninth Circuit ruled for the tribe on the reasoning that the scope of search and seizure under Public Law 280, as interpreted in Nevada v. Hicks, applied to individual tribal members, not to the tribe or its property on tribal land. The Paiute Shoshone tribe is not an individual, and therefore cannot be forced to submit to state search warrants.
But for purposes of standing under 42 U.S.C. 1983, the tribe calls itself a person. (Section 1983 is a law that allows persons to sue if they have been deprived, by other persons, of their constitutional or statutory rights.) Which led Justice O'Connor to ask Chambers, "Is the tribe a person under 1983? You say in your brief it's not."
Like horses and ducks
The justices did not seem to favor "letting the horse out of the barn" (as Justice Ruth Ginsburg put it) by allowing the state to seize tribal records. But they also did not want a new category of sovereign - a domestic sovereign that could operate its businesses under a more lenient set of rules than those applied to foreign countries' commercial enterprises operating in the U.S. A situation, according to petitioner's brief, which would allow "enclaves immune from search" to become "sanctuaries for the proceeds and perpetrators of off-reservation state crime."
It appears that the court is looking for ways to distinguish between tribal government and tribal commercial enterprise in order to protect tribal sovereignty under some circumstances, while waiving it under others. As Justice Breyer said: Non-commercial - tribe wins. But whether the tribe has convinced the Court that the Paiute Palace Casino walks and quacks like a non-commercial duck, remains to be seen.