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Potential landmark decision awaits Bishop Paiute Tribe

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SACRAMENTO, Calif. - What began as an investigation into alleged welfare fraud has turned into a potential landmark case that could have profound impacts on tribal sovereignty.

On March 31, the U.S. Supreme Court will hear a case involving the Paiute-Shoshone Indians of the Bishop Community, commonly known as the Bishop Paiute Tribe. The case began about a year and half ago when Inyo County Sheriff's Department investigators seized records at the tribal casino during an investigation into welfare fraud. Apparently three casino employees were receiving welfare while simultaneously working at the tribal casino.

Welfare laws permit people to make a certain amount of money and still be eligible to receive welfare benefits and the Sheriff's investigators seized the records to see if this was the case. The Sheriff's Department also seized the records of 78 additional employees.

However, no evidence of wrongdoing by the three employees or anyone else was ever found, though attorneys for Inyo County claim that despite their seizure they did not have enough documentation to determine whether or not fraud had been committed. The Bishop Paiute dispute this claim and say that the seized records were sufficient enough to prove innocence.

The tribe meanwhile protested that the Sheriff's Department had no jurisdiction over sovereign Indian land.

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

Public Law 280 is a federal statute that gives certain participating states the right to handle law enforcement on American Indian land in place of federal agencies. It is only recognized in certain states including California. Public Law 280 is controversial in Indian country because many regard it as an affront to tribal sovereignty.

During the District Court trial Inyo County cited the 2001 Nevada v. Hicks case, a controversial Supreme Court decision that gave the right to state officers to conduct an on-reservation search of an off-reservation crime.

The District Court sided with Inyo County and the tribe decided to appeal and went to the U.S. Ninth Circuit Court of Appeals. This time tribal attorney Ralph Le Pera argued that a series of case law that underscored the complexities of Indian law in the United States.

The contradictory nature of Indian law was brought to its full test. Le Pera cited, for example, the United States v. James case, 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. The James decision seemingly flies in the face of Hicks.

The Ninth Circuit overturned the lower court case and sided with the tribe and this time it was Inyo County's turn to appeal. The U.S. Supreme Court accepted their appeal last December.

During both trials, in addition to citing the Hicks case, the county's District Attorney, Phillip McDowell argued that the search was conducted under the auspices of P.L. 280.

Though the Ninth Circuit sided with the tribe, their decision stopped short of overturning P.L. 280.

Interestingly in their brief for this case, lawyers for Inyo County are dropping all references to P.L. 280, perhaps one of their strongest arguments, and are instead relying solely on the Hicks case as the main legal pretext.

To many in Indian country the Hicks case has been a dark cloud over the Supreme Court and this case will test the scope of that decision.

La Pera says that he will refute the Hicks case and does not think it applicable to the current case. He argues that the Hicks case was only applicable to individuals on a reservation and not to tribes as sovereign entities.

"They're (lawyers for Inyo County) are wrong, this case doesn't have a thing to do with Hicks," says La Pera. "It's part of federal common law that states don't have jurisdiction over individual tribal governments."

In an interesting side development La Pera will also test Inyo County's right to sovereign immunity. Believing that the search was conducted illegally the tribe will also argue that it has the right to sue the county for damages under a federal statute enacted by the Civil Rights Act of 1964.

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When the case was before the Ninth Circuit, lawyers for Inyo County argued that there was insufficient precedent and wanted the Inyo County District Attorney and Sheriff to know that they were violating the tribes civil rights and that they should have sovereign immunity under this pretext.

However, in that case the Ninth Circuit sided with the tribe and La Pera says the whole thing will have to be argued again in front of the Supreme Court.

For the Supreme Court case, John Kirby, a San Diego based lawyer who has handled civil cases for Inyo County for the last eight years, will take over for McDowell. Not surprisingly Kirby disagrees with La Pera's interpretation of Hicks.

Kirby argues that Hicks decision made clear that law enforcement officers have the right to enter Indian land during the investigation of a crime.

"Nothing in the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot enter a reservation ? to investigate or prosecute violations of state law occurring off the reservation," reads the quoted text from Hicks in Kirby's brief.

The Bishop Paiute are arguing that the investigation was for an on-reservation crime, which Kirby disputes. He says that by allegedly defrauding the state coffers the individuals in question actually committed the alleged crime off reservation.

Kirby also says that he is not citing P.L. 280 in this case because it is not applicable in this case because it only covers Indian on Indian crimes that occur on Indian reservations.

Tribal sovereign immunity, claims Kirby, could also have the unintended effect of backfiring on tribal members themselves. He paints a theoretical picture of a tribal member needing tribal governmental documentation to prove that she or he is innocent of a crime and being unable to obtain it under sovereign immunity from criminal cases.

Kirby says that in his research of case law on the subject that tribal sovereign immunity is only applicable to civil and not criminal matters.

"It's very clear to me that over time tribes have only a limited retained sovereignty," says Kirby. "It is up to the (U.S. Supreme) Court to decide whether immunity from criminal cases is one of those limited retained rights - we don't think it is."

The tribes meanwhile do think it is and are putting their collective weight behind the Bishop Paiute.

Perhaps one of the best indicators to how other tribes view this case is reflected by the amount of money that other tribes are paying into the Bishop Paiute's legal defense fund. The San Diego County-based Viejas tribe has donated in the neighborhood of $10,000 to Bishop Paiute's legal defense. A story in the San Diego Union Tribune reports that a spokeswoman for Viejas indicated that several other tribes are also thinking of doing the same.

Viejas Communications Specialist Nikki Symington, of Symington Communications, says her clients felt inclined to help Bishop because of their increasing concern over Supreme Court decisions that are increasingly going against American Indians.

"The Supreme Court has been practicing judicial termination," says Symington. "The Hicks case is a perfect example of that."

Symington claims that the U.S. Supreme Court has decided against American Indian tribes in 94 percent of the cases involving tribal litigants. Her claim is backed up by the Native American Rights Fund (NARF), who also makes the same claim.

The Bush Administration is giving mixed signals regarding this case. In January, Bush appointee Ted Olson, the Solicitor General of the United States, filed a friend of the court brief that was entered on behalf of both parties. In that brief Olson wrote that tribal governments are not subordinate to that of the state.

"State officers do not have authority to seize property of the tribe," wrote Olson in his brief.

Despite this proclamation Olson then turned around and sided with Inyo County by stating state law has the right to enter tribal lands with appropriate warrants and other proper jurisprudence.

A final decision on this case is expected in May or June.