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Bishop Paiute tribe wins big in sovereign immunity case

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FRESNO, Calif. ? Inyo County violated the sovereign immunity of the Bishop Paiute tribe when it broke into casino employee records, the Ninth Circuit Court of Appeals ruled on Jan. 4.

The federal Circuit Court held that the Inyo County District Attorney and Sheriff went outside of their jurisdiction as county officer when they executed their search warrant.

The decision modified the reach of controversial Public Law 280, the federal statute which gives California and five other states the right to handle law enforcement on American Indian land in place of federal agencies. Many tribes perceive P.L. 280 as an affront to their sovereignty.

Circuit Judge Harry Pregerson, writing for a three-judge panel, ruled that P.L. 280 extended state jurisdiction "only to individual Indians and not to Indian tribes."

In enacting the law, he wrote, "Congress neither waived the sovereignty of the tribes, nor granted state jurisdiction over Indian tribes."

"Although not a complete victory (for tribes), a victory all the same," said Anna Kimber, a Southern California attorney who has worked with several tribes.

The case began as a lawsuit filed by the Bishop Paiute tribe in reaction to a county investigation into welfare fraud. Three employees of the Bishop Paiute casino were also receiving welfare.

Bishop Paiute tribal attorney Ralph LePera said that under various welfare laws, it is perfectly legal to earn a certain amount of money while still collecting welfare. The Inyo Country District Attorney wanted the records of the three employees to find out if they were earning over the maximum amount at their casino jobs and demanded that the casino turn over the information.

When the casino managers and the tribe refused, the Inyo County Sheriff entered the casino administration offices and broke into the employee records. In addition to the records of the three employees in question, LePera said that the records of 78 other individuals were confiscated as well.

The three employees were found to not be in violation of welfare laws and no evidence of wrongdoing was found in the other confiscated files. Furthermore, the tribe said it would grant the right to search on receipt of county welfare application forms showing their employees' consent to release the requested information.

About a month later, the county demanded that the tribe turn over additional records. It was at this time that the tribe filed a lawsuit in federal District Court alleging their sovereign immunity as a tribal entity had been violated.

The county of Inyo countered that P.L. 280 allowed them to conduct the search? for which they had obtained a warrant from a county judge. The county claimed that the Indian Gaming Regulatory Act, which allowed tribes considerable legal leverage in internal auditing, did not supercede Public Law 280.

Furthermore, the county cited last year's ruling in Nevada v. Hicks, a controversial Supreme Court decision that gave state officers power to conduct an on-reservation search of an off-reservation crime.

The District Court sided with Inyo County and the tribe decided to appeal. LePera says he was "stunned" by the District Court decision and says he felt it did not stand much of a chance in the appeals court.

In the Ninth Circuit, LePera brought forward case law that seemingly contradicted Hicks. He cited United States v. James, a 1992 Ninth Circuit case that held that the federal government could not seize records of a Quinault tribal member at the tribal medical facility in Washington State. Furthermore, LePera said that the 1976 Bryan decision in the Supreme Court bolstered the tribe's case.

"They (Inyo County) said that Public Law 280 has criminal jurisdiction over this case. However, case law in both the Ninth Circuit Court of Appeals and the U. S. Supreme Court contradicts this and says states don't have this right," LePera said.

This time the court agreed with the tribe and overturned the lower court.

Inyo County District Attorney Philip McDowell, a defendant in the case, says the decision is "disconcerting" because he believes it hampers the county's ability to enforce the law. He said he was upset that the Hicks decision did not enter into the legal argument. He felt that his actions did not affect the tribe's right to self-governance.

"We're not trying to take their government away," he said.

When questioned as to why his office did not simply comply with the tribe's request to be provided with the individual welfare waivers, McDowell said that it was the state of California, and not his office, that refused the request.

McDowell maintained that his actions were legal, including obtaining the search warrant, and were executed in accordance with P.L. 280.

LePera countered that the bottom line is that states do not have the right to subpoena and search tribal governments without their consent. He said that P.L. 280 only deals with individual Indians and not tribal governments or sovereign tribal land.

Since the ball is in their court, McDowell said that the county will try to take the case to the next step, which is to petition for what is known as an "en banc" hearing before the Ninth Circuit Court of Appeals. In an en banc hearing, the case is argued before all of the Ninth Circuit, instead of the three-member hearing panel. This is the last rung on the legal ladder below the U.S. Supreme Court.