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It's often a win when Court doesn't act

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WASHINGTON - Cases that the U.S. Supreme Court doesn't decide on often do more for Indian country than the cases it does.

The highest court only takes up about one in 10 of the appeals it receives, by issuing a writ of certiorari. When it "denies cert," in legal slang, the effect is to make the lower court ruling the final word. In at least two recent cases, the lower levels have given stronger support to tribal sovereignty than the Supreme Court is likely to do.

One stronghold for Indian law, for instance, is the Ninth Circuit Court of Appeals, based in San Francisco. This is the court that enraged Bill O'Reilly and a parade of Congressmen by upholding the challenge to the "under God" phrase in the Pledge of Allegiance. It's been called the most reversed court in the country, since the Supreme Court often disagrees with its "liberal" outlook. Several Ninth Circuit judges categorically support tribal sovereignty. So it was a big win for Indian country March 11 when the Supreme Court refused to review a Ninth Circuit decision supporting the Tulalip Tribes' exemption from county land use regulation in Washington state.

Sometimes state Supreme Courts have defended Indian rights against their own state governments. In one important example several months ago, the U.S. Supreme Court refused to take up the Montana Supreme Court ruling in the Flat Center Farms case that upheld the immunity of tribal members from state taxation. Technically, the state court decision only sets the law for Montana, but one state judge relied on an interpretation of a recent controversial U.S. Supreme Court case that could actually turn it to the benefit of Indian country.

The nine U.S. Justices normally don't explain why they turn down a case, so the lower court rulings don't have the weight of a formal U.S. Supreme Court opinion in which the justices lay out their reasons for agreeing or dissenting, often at some length. On the other hand, given the current division among the justices, Indian country is in harm's way every time they try to make up their mind on Indian law.

The recent trust cases appear to show a closely divided court, although appearances might be deceiving because the arguments hinged on narrow interpretation of specific laws. (The Court prefers to make decisions on narrow grounds, to avoid sweeping statements that could cause trouble down the road.) The White Mountain Apache won by five to four, supported by Justices David Hackett Souter, John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg, and Stephen G. Breyer. The opponents were what have often been called the hard-right bloc, Clarence Thomas, Chief Justice William H. Rehnquist, Antonin Scalia and Anthony M. Kennedy.

Ginsburg and Breyer swung to the other side in the Navajo Nation case, which the U.S. government won by six to three.

Just looking at these cases, one would think the best friends for Indians were Souter, a master of detailed argument who wrote the affirming opinion for the Apache and the dissent for the Navajo, and O'Connor, a former judge on the Arizona Court of Appeals who knows both tribal territories. Scalia and his three soul mates looked like the most dangerous opponents. Ginsburg was the most influential swing, writing a concurring opinion in the Navajo case emphasizing the role of tribal self-government in distinguishing it from the Apache case.

But as one observer noted these cases involved relations of the tribes with the federal government. How these votes will line up in defining the line between tribal and state government powers, the pending issue in the Bishop Paiute case and the infamous Hicks ruling, is anybody's guess. All nine voted to reverse the Ninth Circuit in Hicks in a majority opinion written by Scalia, and Souter, Ginsburg and Stevens wrote separate concurring opinions.

What is clear is that Indian country came out better in the recent cases that the Supreme Court didn't hear. The Tulalip case, Gobin v. Snohomish County, which the Court turned down March 11, left intact a Ninth Circuit Court ruling slapping down the County's attempt to extend its land use rules into the Tulalip reservation.

The case turned on the distinction of lands owned by Indians on the reservation but held in fee instead of in trust. Unlike the trust lands supervised by the BIA so that they couldn't be taken over by non-Indians, fee lands could be sold or used to secure mortgages like any other. Kim Gobin and her brother Guy Madison, members of the Tulalip Tribes, owned 25 acres of fee lands on the Tulalip Reservation, which in fact they had bought back from a non-Indian, and planned to build a housing development. Under the Tribes' land-use rules, they could build 25 homes, but the county's rules would only allow 10. Snohomish Country argued that its rules applied to all non-trust lands.

The Ninth Circuit opinion by Judge Stephen S. Trott pushed back what it called an "unprecedented extension" of the county's power. Even though the "in-fee" lands could be taxed, he wrote, other less direct state restrictions were still excluded by "the well-established policy of leaving Indians free from state jurisdiction and control."

The other major case untouched by the U.S. Supreme Court came from the Montana courts. In Flat Center Farms Inc. v. State of Montana, Department of Revenue, the state Supreme Court rejected an attempt by state tax collectors to impose the state Corporation License Tax on an Indian-owned business located within the Fort Peck Reservation. The court ruled that since Flat Center was tribally chartered and wholly owned by Indians, it didn't have a separate identity that let the state impose a tax.

An interesting twist came in the concurrence by Justice James C. Nelson, who cited the controversial 2001 U.S. Supreme Court decision in Atkinson Trading Co. v. Shirley. Most Indian analysts bitterly attack Atkinson for disallowing a Navajo Nation attempt to tax a company owned by non-Indians but operating in the reservation economy. Judge Nelson made the flip side of the argument. "If a tribal sovereign may not tax a state corporation owned by non-Indians doing business on fee land within the reservation, I cannot by analogy see how the state can claim any greater authority to tax a state corporation owned 100 percent by Indians doing business on non-fee land entirely within the reservation."

Since the U.S. justices passed up a chance to correct Judge Nelson, his interpretation stands as a powerful support for Indian interests, in spite of the controversy over Atkinson. The denial of cert for Flat Center Farms several months ago looks like one of this year's big victories for Indian sovereignty.