WASHINGTON - A shifting coalition of state attorneys general is joining the
fight to sway the U.S. Supreme Court on tribal sovereignty. In a
counterpoint to the defense of tribal rights launched by national Indian
organizations, the state officials are filing briefs to cut back tribal
jurisdiction wherever they can.
The lead figures are Larry Long, attorney general of South Dakota and
Richard Blumenthal, attorney general of Connecticut. They top the list of
10 attorneys general who filed an amicus curiae (friend of the court) brief
with the 1st Circuit Court of Appeals in Boston, challenging the authority
of the Interior secretary to take land into trust. Their brief, in the case
of Carcieri v. Norton, argued that parts of the 1934 Indian Reorganization
Act were unconstitutional.
A three-judge 1st Circuit panel made short shrift of the argument, but the
case is definitely headed for an appeal, one of the plaintiffs told Indian
Long and Blumenthal are back with a shifting cast of 14 attorneys general
in a major tribal tax case out of Kansas. Their group joined a successful
petition to the Supreme Court to take up the case of Prairie Band
Potawatomi Nation v. Richards. Stephen Richards, secretary of the Kansas
Department of Revenue, has been trying to tax oil product shipments to
reservation gas stations. Lower federal courts have rebuffed him, but the
Supreme Court announced Feb. 28 that it would hear the case in its fall
The brief also urged the court to take up a case from Idaho in which the
state's highest court rejected a tax on the Coeur d'Alene tribe. The
Supreme Court denied that petition, Coeur d'Alene v. Hammond, the same day
it took up the Kansas case.
In a brief filed by Long and South Dakota Assistant Attorney General John
P. Guhin, the state officials told the court that their basic ability to
tax was threatened by the 10th Circuit Court of Appeals' ruling in favor of
the Prairie Band Potawatomi Nation. Even more, they said, the Circuit Court
would limit their power to regulate Indians off the reservation.
The Circuit Court applied a "balancing test" of competing state and tribal
interests in overruling the Kansas tax, which applied to non-Indian
distributors. Long, who is defending South Dakota's attempt to tax Indian
gas sales, claimed that recognizing tribal interests beyond the reservation
would have dire consequences.
"Indeed," he wrote, "to recognize a historical sovereignty of tribes beyond
the boundaries of Indian country and Indian reservations would raise
serious and profound questions with regard to invasion of the rights of
American citizens entitled to the protections of the Constitution and the
Bill of Rights."
In addition to Long and Blumenthal, 12 other state attorneys general signed
the Richards brief. They are Terry Goddard of Arizona, Bill Lockyer of
California, Lawrence Wasden of Idaho, Thomas Miller of Iowa, Thomas Reilly
of Massachusetts, Jeremiah Nixon of Missouri, Patricia Madrid of New
Mexico, Wayne Stenehjem of North Dakota, W.A. Drew Edmondson of Oklahoma,
Mark Shurtleff of Utah and Patrick Crank of Wyoming.
Shurtleff, Wasden, Nixon and Stenehjem also joined Long and Blumenthal on
the brief in the Carcieri case. It was also supported by four other
attorneys general: Phill Kline of Kansas, Gregg D. Renkes of Alaska,
William H. Pryor of Alabama and William H. Sorrell of Vermont.
Sorrell, a vehement opponent of recognition for the Abenaki Indians of his
own state, is this year's president of the National Association of