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Rehnquist's Tenure Saw Erosion Of Tribal Sovereignty

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  • Rehnquist's Tenure Saw Erosion Of Tribal Sovereignty

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    This Message Is Reprinted Under The Fair Use
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    FROM: INDIANZ.COM WEBSITE

    _http://64.62.196.98/News/2005/010176.asp_
    (http://64.62.196.98/News/2005/010176.asp)

    Rehnquist's Tenure Saw Erosion Of Tribal Sovereignty

    Tuesday, September 6, 2005

    As an associate justice, then chief justice, William H. Rehnquist oversaw
    the near wholesale dismantling of tribal sovereignty in a slew of U.S. Supreme
    Court cases.
    During Rehnquist's 33 years on the bench, the court abandoned its
    traditional role as a protector of tribal interests. In decisions affecting
    jurisdiction, taxation and immunity, the justices began to discard the notion that
    tribes possessed inherent sovereignty, treating tribes separately from states and,
    when the two collided, favoring states.
    As a conservative proponent of states' rights, Rehnquist was at the
    forefront of this shift. In 1978, he started the trend with the Oliphant v. Suquamish
    decision, holding that tribes lack criminal jurisdiction over non-Indians
    because it is "inconsistent" with their status.
    "By submitting to the overriding sovereignty of the United States, Indian
    tribes therefore necessarily give up their power to try non-Indian citizens of
    the United States except in a manner acceptable to Congress," Rehnquist wrote
    in the precedent-setting opinion on March 6, 1978, seven years after he
    joined the court.
    Three years later, the court used Rehnquist's words to extend this
    philosophy to civil jurisdiction. In Montana v. United States, the justices held that
    tribes lack authority over the activities of non-Indians except in certain
    cases.
    "Though Oliphant only determined inherent tribal authority in criminal
    matters, the principles on which it relied support the general proposition that
    the inherent sovereign powers of an Indian tribe do not extend to the
    activities of nonmembers of the tribe Rehnquist would expand that philosophy to civil
    jurisdiction," the court wrote on March 24, 1981. Rehnquist joined the
    majority in the 6-3 case.
    Three years after that, Rehnquist voiced deep concerns about the very notion
    of tribal sovereignty. On September 10, 1984, he issued a stay in National
    Farmers v. Crow Tribe, a case that tested the limits of tribal court
    jurisdiction over non-Indians. Although the stay didn't resolve the underlying legal
    issues, Rehnquist nonetheless indicated where he stood on the matter.
    "But if because only the National and State Governments exercise true
    sovereignty, and are therefore subject to the commands of the Fourteenth Amendment,
    I cannot believe that Indian tribal courts are nonetheless free to exercise
    their jurisdiction in a manner prohibited by the decisions of this Court, and
    that a litigant who is the subject of such an exercise of jurisdiction has
    nowhere at all to turn for relief from a conceded excess," he wrote in the
    stay.
    Several months later, on June 3, 1985, the court issued its opinion in the
    case, holding that non-Indians must first exhaust their tribal court remedies
    before seeking relief in the federal courts.
    The following year, Rehnquist was elevated to the chief justice position by
    the late president Ronald Reagan. The next 19 years saw the court continue
    its trend of chipping away at tribal rights, culminating in the 2000-2001 term,
    in which tribes lost five out of six cases.
    Among the opinions that Rehnquist authored during this period was Seminole
    Tribe v. Florida, decided by a 5-4 vote. On March 27, 1996, he held that state
    sovereign immunity protected Florida from being forced to negotiate a gaming
    compact. Tribal leaders, and even some federal officials, believe the
    decision has contributed to adverse state-tribal relations and has led to increased
    demands by states for a greater share of tribal gaming revenues.
    Rehnquist didn't always go against tribal interests, though. In Oklahoma Tax
    Commission v. Citizen Band Potawatomi, his majority opinion refused to
    discard the notion of tribal sovereign immunity. In the February 26, 1991,
    decision, he wrote that Congress "has never authorized suits to enforce tax
    assessments" on tribes for failing to pay state taxes.
    But more often than not, Rehnquist was on the other end of the stick during
    his tenure as chief justice. In March 1999, he sided against treaty rights in
    Minnesota v. Mille Lacs Band, a close 5-4 decision. His dissent criticized
    the majority for holding that the Mille Lacs Band enjoys off-reservation
    fishing and hunting rights in Minnesota.
    In another 5-4 case, Rehnquist filed a dissent in Idaho v. United States
    from June 2001. In this tribal-state dispute, he contended that the Coeur
    d'Alene Tribe is not entitled to ownership of the southern third of Lake Coeur
    d'Alene.
    Even in cases where he didn't author an opinion, Rehnquist's views were
    felt. The most significant case is Duro v. Reina from 1990, which extended
    Oliphant by holding that tribes lack criminal jurisdiction over Indians who are
    members of other tribes.
    Yet 14 years later, Rehnquist showed that he could change his mind. In Lara
    v. United States from April 2004, he agreed that an act of Congress
    "recognized" and "affirmed" inherent tribal jurisdiction over "all Indians." Some
    constitutional doubts, however, remain.
    In October 2004, the Supreme Court announced that Rehnquist had been
    diagnosed with thyroid cancer. His health kept him from attending oral arguments in
    two Indian law cases.
    His absence wasn't a factor in Cherokee Nation v. Thompson. In an 8-0
    decision on March 1, 2005, the court held that the Cherokee Nation is entitled to
    contract support costs for an underpaid federal health contract.
    But a few weeks later, Rehnquist joined the court in its most recent Indian
    law decision, one that has been roundly criticized as one of the most
    devastating. Even though he didn't participate in arguments for Sherrill v. Oneida
    Nation, he agreed with the majority that the passage of time can erode tribal
    sovereignty, an issue that wasn't briefed in the case.
    "The Rehnquist court's decisions, meandering from the settled principles and
    approaches embraced by all its predecessors, have created a judicial
    atmosphere that threatens economic development efforts as well as the political and
    cultural survival of Indian tribes," David H. Getches, a University of
    Colorado law school professor and noted Indian law expert, said in Senate testimony
    in February 2002.
    Relevant Links:
    National Indian Law Library - _http://www.narf.org/nill/index.htm_
    (http://64.62.196.98/my.asp?url=http:...nill/index.htm)
    Tribal Court Clearinghouse - _http://www.tribal-institute.org_
    (http://64.62.196.98/my.asp?url=http:...institute.org/)
    Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.sigpic

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