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Scary times ahead for sovereignty as U.S. Supreme Court looms

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WASHINGTON - The biggest Indian game of chance now going is the U.S. Supreme Court, and the stakes are the future shape of tribal sovereignty. A term which at first seemed likely to skirt the issue suddenly put it front and center Dec. 2 when the Court issued a supplemental docket of the cases it would and would not hear.

One decision gave Indian country a big win, when the Supreme Court declined to accept an appeal by Montana state tax officials of their loss in the Flat Center Farms case. The denial of "cert" (the Writ of Certiorari that brings cases to the nation's highest court) had the affect of upholding a Montana Supreme Court decision protecting Indian-owned and reservation-based businesses against state taxation.

But the case that the U.S. Supreme Court did accept raises the specter of further erosion of tribal sovereign immunity. The case Inyo County v. Paiute-Shoshone Indians, 02-281 involves a Country search warrant that the Inyo District Attorney and Sheriff executed against the Bishop Paiute Tribe in Bishop, Calif. While investigating welfare fraud charges against three tribal members, the county officials searched personnel records at the tribe's Paiute Palace Casino, using bolt cutters to shear off locks protecting confidential files.

Even though California is a Public Law 280 state, giving state officials jurisdiction over criminal violations by tribal members, the 9th Circuit Court of Appeals ruled that the search violated tribal sovereign immunity. A blunt decision written by Circuit Judge Harry Pregerson held that this controversial law "neither waived the sovereignty of the tribes, nor granted state jurisdiction over Indian tribes."

By accepting the case, the U.S. Supreme Court is implying at the least that Pregerson's ruling is debatable, an alarming prospect for Indian law scholars who already see the court as a threat to basic principles of sovereignty.

In September 2001, the National Congress of American Indians (NCAI) along with other tribal leaders, launched the Sovereignty Protection Initiative to counteract what they saw as the "increasing diminishment of tribal self-government and jurisdiction" in the Supreme Court rulings of Nevada v. Hicks and Atkinson Trading Co. v. Shirley.

The Inyo County case looks like an extension of Hicks, which also involved arrests by state officers on tribal land. Yet the Atkinson case, involving the power of one sovereign to tax another, is proving to cut both ways. It was cited by the Montana Supreme Court in the decision protecting Indian-owned Flat Center Farms against state taxation, a decision that the U. S. Supreme Court in effect has just upheld.