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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/)
This Message Is Reprinted Under The Fair Use
Doctrine Of International Copyright Law:
_http://www4.law.cornell.edu/uscode/17/107.html_
(http://www4.law.cornell.edu/uscode/17/107.html)
************************************************** ************
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/)