Justices ponder tribal powers

Mark Sherman

Tuesday, April 1, 2003 | 9:32 a.m.

WASHINGTON -- Indian tribes could derail local criminal investigations unless forced to comply with search warrants for tribal property, a lawyer for a California county told the Supreme Court Monday.

Inyo County, east of the Sierra Nevada in central California, is asking the court to overturn an appeals court ruling that the Bishop Paiute Tribe can prevent authorities investigating possible welfare fraud from searching its records and property.

John D. Kirby, a San Diego lawyer representing the county, said many criminal investigations would be compromised if the court allows tribes to have immunity from searches.

"What happened in this case is what could wind up happening in every case," Kirby said.

The issue in the lawsuit was whether tribal records, as opposed to personal tribal members' property, are protected. The Supreme court ruled in 2001 that state authorities may enter an American Indian reservation to investigate or prosecute off-reservation violations of state law, including questioning a tribe's members and searching personal property.

The dispute arose during the county's investigation of three employees of the tribe's casino whose names also appeared on welfare rolls. In March 2000, a county investigator and sheriff's deputies armed with a bolt cutter searched and seized personnel and pay records from the tribal Paiute Palace Casino in Bishop, Calif.

When authorities later sought more records, the tribe sued in federal court. A judge dismissed the lawsuit, but the 9th U.S. Circuit Court of Appeals agreed with the tribe.

In their latest attempt to define the boundaries of tribal sovereignty, the justices appeared to be searching for a middle ground that would uphold sovereignty without impeding a criminal investigation.

Chief Justice William Rehnquist suggested that there is a distinction between tribal government documents and the casino's business records. "These are basically commercial records," Rehnquist said.

But Reid Chambers, the lawyer for the tribe, said there is little difference between the corporation that runs the casino and the tribal government.

The Bush administration is backing the tribe. Barbara McDowell, assistant to the solicitor general, said the tribe's immunity should be upheld to preserve "the dignity which their sovereign status entitles them."

Other justices wondered why county authorities and tribal leaders couldn't have worked out an agreement to provide the records without a search warrant. The parties dispute the events that led to the impasse.

Chambers said the tribe is willing to enter into an agreement with county law enforcement to address a range of issues.

A dozen states, sheriffs from across the nation and California prosecutors are supporting Inyo.

But Chambers pointed out that four states -- Arizona, Montana, New Mexico and Washington -- sided with the tribe in this case.

"Those four states, with two-thirds of the Indian trust land and well more than half the Indian population, are saying you work things out cooperatively," Chambers said.

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