(The Return of) Ignatz, by Sam Heldman

Thursday, March 27, 2003

S.Ct. predictions
Time to return to the Supreme Court predictions, for next week's arguments. The first case to be argued next week is Inyo County v. Paiute-Shoshone Indians, about the relationship among states, Indian tribes, and federal law. Here's the setup: law enforcement agents of a California county executed a search warrant, to search records of a casino that was owned by, operated by, and on the territory of, an Indian tribe. The warrant was in furtherance of an investigation into alleged welfare fraud; the records were employment files. The Tribe says that, since it is an independent sovereign, state officials have no jurisdiction or authority to execute a search warrant on its territory to search its stuff.

If this case simply called for an answer to that question – whether state law enforcement officials can obtain and execute a warrant allowing the search of a Tribe's facilities – it would be an interesting case. But it's a lot messier than that; it presents three questions (I'm paraphrasing them), all of which have to be answered in the Tribe's favor in order to affirm the Ninth Circuit's decision (pdf file: here, modified somewhat here). These questions are:

(1) Does a Tribe have a right as an independent sovereign not to have its own stuff, on its own territory, searched by state/local officials?

(2) Even if so, is a Tribe a "person" within the meaning of 42 U.S.C. § 1983, such that it can bring suit for violation of its rights?

(3) Even if so, does a search by state officials of a Tribe's stuff really amount not only to something that the state officials must not do, but to an actual violation of the Tribe's constitutional rights under the Fourth Amendment? And if so, was that Constitutional right "clearly established" at the time in question, so obviously well-settled in the law that law enforcement officials can be sued for money damages out of their own pockets for violating the right? (yes, that's two questions, I know).

If the case doesn't get dismissed as improvidently granted on account of its being so messy – a result that wouldn't surprise me – I'm betting that the Supreme Court will find something not to like at some step of the analysis. They'll probably say that the Tribe (and its casino) aren't persons within the meaning of § 1983, if they get to that issue; but there's some doubt as to whether the question is properly before the Court, because it apparently wasn't argued in the lower courts. And they'll probably say, at the very least, that the right in question was not "clearly established", so that the officials can't be sued for money damages out of their own pockets. There isn't much that's "clearly established" these days, it seems, but don't get me started on qualified immunity (a bit of anti-constitutional judicial activism, designed to make it harder to vindicate your constitutional rights) again … Anyway, I say "REVERSE".

posted by sam 10:51 AM 0 comments


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