Inyo County v. Paiute-Shoshone Indians – Oral Argument – March 31, 2003

Media for Inyo County v. Paiute-Shoshone Indians

Audio Transcription for Opinion Announcement – May 19, 2003 in Inyo County v. Paiute-Shoshone Indians

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William H. Rehnquist:

We’ll hear argument now in No. 02-281, Inyo County, California v. the Paiute-Shoshone Indians of the Bishop Community.

Mr. Kirby.

John D. Kirby:

Mr. Chief Justice, and may it please the Court:

In the case the Paiute propose and are seeking a categorical rule that makes Indian tribes, their casinos, their commercial businesses, and their personal property immune from search warrants and subpoenas issued in connection with the investigation of crime and the prosecution of crime.

They seek this rule under Federal statutory law, under Federal common law, and under the Constitution.

However, such a categorical rule is not supported by the text, structure, or history of the Constitution, by any Federal statute, or by any sufficient or rational public policy.

Further, there is not now, nor should this Court extend or create a common law right to be immune from search warrants and subpoenas that are issued in connection with the investigation of crime and the prosecution of crime.

It is a–

Sandra Day O’Connor:

Counsel, did the tribe offer to accept as consent by the employees their employment forms?

John D. Kirby:

–Your Honor, I am prepared to answer that question.

It does involve matters outside the record, and I will proceed to answer.

Sandra Day O’Connor:

I see.

I just thought it was a little curious that if some means of solving this had been offered, why we’re here.

John D. Kirby:

There was not any means of solving it at the time, Your Honor, because the Federal regulations that govern the public welfare act at question, title 45, part 205, prohibits the information from being disclosed.

Sandra Day O’Connor:

Okay, thank you.

John D. Kirby:

It is–

Ruth Bader Ginsburg:

That goes for… they had asked for edited copies.

They just wanted the last page, and they said that they could be edited.

Does the… in your view didn’t Federal regulations preclude even those edited copies of just the last page from being turned over?

John D. Kirby:

–Yes, Justice Ginsburg, because the information that’s precluded from being distributed is the names of the individuals who are being investigated.

Now, I know that the allegation is made that in the letter that was sent by the district attorney and by the Department of Health and Human Services stated that this was a welfare fraud investigation.

However, that letter actually did not so state.

It stated that the investigation was a confidential investigation that required the payroll information being sought.

The fundamental right and responsibility of government is to protect its citizens, and one of the main ways it does that, of course, is through the investigation and prosecution of crime.

The Federal Government and the State government have together an integrated law enforcement regime that allows for search warrants and subpoenas to be executed and issued in connection with the investigation of these crimes or alleged crimes whether the criminal conduct occurs on the reservation or off the reservation and regardless of whether the evidence or proceeds of crime is thought to be on the reservation or off the reservation.

For instance, in a Public Law 280 State, such as California, if there is a crime committed off the reservation, frankly as well as on the reservation, the Federal Government does not have jurisdiction over that crime.

Thus, the Federal Government does not have the ability to issue a search warrant.

If the States do not have the ability to issue a search warrant under those circumstances and there is evidence of crime or proceeds of crime on the reservation, then that property or evidence remains immune from law enforcement.

Anthony M. Kennedy:

Is California one of the 280 States that has jurisdiction?

John D. Kirby:

Yes, Justice Kennedy, California is a Public Law 280 State.

John D. Kirby:

Now, in a non-Public Law 280 State, the same situation presents itself because in that situation, the Federal Government has the right to… and the… the duty, if you will… as a responsibility to its citizens to enforce the criminal law with regard to crimes that occur on the reservation that would be State crimes if they occurred off the reservation.

And under the Major Crimes Act, as well as the General Crimes Act, the Federal Government prosecutes that crime and, of course, does the investigation prior to prosecution.

In order to conduct those activities and to fulfill that mission, if you will, the Federal Government needs to have the right and does have the right to execute search warrants and to issue subpoenas.

Now, as we have seen, there may be a situation where a crime is committed on the reservation in a Public Law 280 State and a crime committed in a… the same crime in a non-Public Law 280 State, and in those situations, there must be parity with regard to the law enforcement regime.

If not, what we end up with is gaps in the criminal justice system, and that wasn’t the intent of the legislature in enacting Public Law 280.

As the Court will recall, Public Law 280 was passed by Congress because of a perceived lawlessness on certain reservations.

That lawlessness arose because Congress felt that the Federal Government… due to the vast distances, if you will, of Federal Government law enforcement agencies, and the lack of density of those agencies… simply wasn’t able to enforce criminal laws throughout the vast acreage of reservations.

And so–

John Paul Stevens:

Mr. Kirby, here what happened I… as I understand it, was that a search warrant was served on the tribe itself, and so I think that’s what your argument should probably be addressed to.

I think in Hicks we held that there could be process served against individual tribal members.

John D. Kirby:

–Yes, Your Honor.

The search warrant was issued as to tribal property.

I… I would point out that the search warrant itself didn’t actually require the tribe to do anything other than stand by and allow the officers to go forth and search.

And in this–

John Paul Stevens:

Well, that’s true of most search warrants.

John D. Kirby:

–Yes, Your Honor.

John Paul Stevens:

I mean, the person served doesn’t have to do anything except let them search.

John D. Kirby:

Yes, Your Honor, the point being… the point being that the search warrant did not hail the reservation or the tribe into court for the purpose of responding to a civil judgment for the purpose of–

Antonin Scalia:

What… what was the tribal property at issue?

John D. Kirby:

–It was common payroll records, Justice Scalia.

Antonin Scalia:

Were they records of the casino?

John D. Kirby:

They were records of the commercial business operated there, yes, the casino.

Antonin Scalia:

Where were they kept?

Were they kept at the casino?

John D. Kirby:

Your Honor, they were kept in back of the casino, as I understand it, in an outbuilding that was secured by a padlock.

Antonin Scalia:

Would you… would you draw a distinction between the subpoena of the records of the commercial operation and a subpoena of the records of the… of the government records of the tribe itself?

John D. Kirby:

Yes, Justice Scalia, there could very well be a distinction there.

And the solution that we believe would address that distinction would be a solution that Justice White presented in the Brendale decision when he talked about a tribe having a unique protectable interest in certain situations.

And the tribe ought to have a right to go to court… in this case, it would be a State court… to present that protectable interest so that a… an interest-balancing assessment can be accomplished.

In this case the interest of the tribal record may very well outweigh a minimal interest of the State if it was a simple minor misdemeanor.

John D. Kirby:

On the other hand, it may be that if it’s a large serious felony of multiple murder and there is very direct evidence in the records of the tribal government, perhaps under those facts the court may find that the interest weighed in favor of the State’s police power.

Ruth Bader Ginsburg:

But that–

–Isn’t there the obvious–

Anthony M. Kennedy:

–Is it that the local magistrate in each case has to… and then the law enforcement officer weigh these interests?

Well, this is a misdemeanor.

Well, this is a felony.

I… I don’t… I think that would be a very difficult rule to implement in practice.

Antonin Scalia:

What does everybody do?

Sort of stand around until the appeal is finally exhausted–

John D. Kirby:

No.

Antonin Scalia:

–for a couple of years to see whether they can do the search or not?

John D. Kirby:

No, Justice Scalia, and no, Justice Kennedy.

What would happen would be once the probable cause determination is made that there is evidence of a crime within the records of the casino in our hypothetical, the search warrant would be executed and the property would be seized and brought before the court.

At that time the tribe, if it thought it had a protectable interest under State statute, perhaps because of certain statutory privileges, or under some special protectable interest that the tribe may feel that it has because of its unique domestic dependent sovereign status, could present that interest balance analysis to the magistrate immediately.

Ruth Bader Ginsburg:

But what good did it do to the State… to the tribe after the horse is out of the barn?

In other words, the State… the tribe is not being prosecuted for anything in these cases.

It’s a tribal member who’s being prosecuted.

And if you’re saying, well, the… the warrant has to be executed but after the fact the State… the tribe, to… to ease its wounded feelings, can have this declaration?

I don’t follow it.

I mean, the tribe’s idea is there is no right to come on our property and seize our records.

If you’re saying every time the county can do that and that all the tribe has is an after-the-fact determination by some magistrate that the county was wrong, it’s not much of a remedy, is it?

John D. Kirby:

With all respect, Justice Ginsburg, I believe it’s the best remedy available.

The tribe’s desire to have a categorical rule that no search warrants may be issued with regard to its property has disastrous consequences when evidence or proceeds of a crime is located upon the reservation.

Stephen G. Breyer:

Why?

Why is that?

I mean, from what you’ve said so far, it sounds to me as if the State or the county went to the tribe and said, we want your records, and the tribe said, why?

And the county said, we can’t tell you.

Well, obviously that would be a situation where they might get their backs up.

But suppose you just said, look, the reason is that we think there are a couple of people here who are cheating us.

We think they get welfare from us and you’re paying them too much.

Stephen G. Breyer:

That’s why we want to look at it.

Maybe they would have said, sure, go look at it.

But I take it you couldn’t do that simple thing?

John D. Kirby:

Your Honor, the Federal regulation prohibits the–

Stephen G. Breyer:

All right.

So then isn’t the solution that maybe you need a law to overcome the Federal regulation or maybe you just go to a Federal official and say, will you please ask them?

John D. Kirby:

–No, Justice Breyer.

Stephen G. Breyer:

There’s no way to do it.

In other words, under the law the only choice… your major constitutional thing is you have to say the only possibility is the county that wants to prosecute somebody has to… goes to the tribe and says, we want to prosecute somebody.

We won’t tell you who.

We can’t tell you why.

Give us all your records.

I mean, on that circumstance, I’d think the tribe would certainly have a point.

And yet… yet if… if you were behaving reasonably and maybe… maybe if Federal law prevents you from behaving reasonably, maybe they should change it.

How is this supposed to work out?

John D. Kirby:

Well, Justice Breyer, looking at the situation that you’ve presented, which is our situation, one must remember that letters were sent by the Department of Health and Human Services to the three individuals asking for a reconciliation.

Letters were sent by the district attorney to these same three individuals.

Two letters were sent to the tribe asking for the information, which the tribe had honored five times in the last approximately 2 years, and the tribe had actually in one of those occasions asked for a search warrant, which it then honored.

There was a history of working with the tribe to obtain this information.

During this circumstance, the tribe took the position it was no longer going to do that.

It wanted to have something more, and in fact the tribal attorney suggested that a search warrant be obtained.

And as it had been in another circumstance within the preceding 12 months.

So there is a clear history of trying to work with the tribe.

What ended up happening in this case is what could happen in any case.

The tribe, for whatever reason, depending upon whatever tribal government might have been elected at the time… and it… they may have been different on that day than they were during the preceding 2 years… decided, no, we’re not going to do that any longer.

And that’s how this situation came to fruition.

And what we’re looking at–

Sandra Day O’Connor:

Well, do you have other means to get the information?

Can you question the people you suspect of welfare fraud and ask them how much they earned, if anything?

John D. Kirby:

–Justice O’Connor, that was done on at least two separate occasions.

John D. Kirby:

Letters were sent to each of the three casino employees advising them of the discrepancy and asking that the employees come in and reconcile the discrepancy.

Those letters, unfortunately, were ignored.

And so the county was faced with the situation where it is mandated to have such an investigation process into potential fraud by the–

Sandra Day O’Connor:

Well, presumably you could question supervisory employees who prepare payroll records and ask them how much have you paid these people, if anything.

Could you do that?

John D. Kirby:

–Yes, Justice O’Connor, that could be done.

That presumes, however, that the tribal officials would subject themselves and submit to questioning and providing the information verbally that they have refused to provide in writing simply by filling out a form requesting the information.

Sandra Day O’Connor:

Well, we have said that the… in Minnesota v. the United States, I think we said that a proceeding against property in which the United States has an interest is a suit against the United States.

Do you take the position that you can file a suit against the Indian tribe without its consent?

John D. Kirby:

Justice O’Connor, when property is at issue, we have an in rem situation that doesn’t require a lawsuit.

We have the… I believe it’s Minnesota and the Cass County case which–

Sandra Day O’Connor:

Well, you didn’t answer my question.

John D. Kirby:

–I apologize.

Sandra Day O’Connor:

Do you take the position that you can file a suit against the tribe?

John D. Kirby:

Not to differ or to draw hairs, yes, the suit could be filed and if the tribe consented to jurisdiction, then we could resolve it in court.

Sandra Day O’Connor:

Yes, but… against its consent.

John D. Kirby:

Not against its consent.

That’s right.

Sandra Day O’Connor:

No.

Antonin Scalia:

Mr. Kirby, isn’t it the case that… that you can sue… the United States can be sued against its… against its consent if it’s operating a commercial enterprise.

Isn’t that the international law of sovereign immunity, just as under our Foreign Sovereign Immunities Act a foreign sovereign can be sued in this country against its will if it is operating a commercial enterprise?

John D. Kirby:

That is my understanding, Justice Scalia, and that is the case we have here.

David H. Souter:

No, but isn’t there one difference?

And that is, take the foreign sovereign situation.

There’s a statute of the United States.

And… and if we start with the assumption, as I do, that we are in a different situation from… from what we faced in Hicks so that we’re talking about, in effect, a claim directly against the… the sovereign itself, and if we also assume, which I think is correct, that the ultimate party in interest in this kind of a welfare fraud situation is the United States, why isn’t the sensible answer to say, all right, if the United States wants the tribes to be treated like foreign sovereigns in a commercial enterprise, and if the United States wants to regard the casinos as a commercial enterprise for that purpose, let it pass a statute comparable to the Foreign Sovereign Immunities Act?

John D. Kirby:

That would certainly be a resolution of this case, Justice Souter.

However, what we’re left with dealing today without congressional action is the common law tribal immunity doctrine as set forth by this Court and the Montana analysis that this Court has set forth with regard to–

Antonin Scalia:

Has Congress ever adopted a statute speaking to tribal sovereign immunity?

John D. Kirby:

–No, Justice Scalia.

Antonin Scalia:

Isn’t it entirely a creation of this Court?

John D. Kirby:

Yes, Justice Scalia, it is.

David H. Souter:

And if in fact–

–Well, isn’t… isn’t it also a… a creation which basically was an adoption of an international law norm?

John D. Kirby:

Initially–

David H. Souter:

Isn’t that what John Marshall thought he was doing?

John D. Kirby:

–I believe that the tribal sovereign immunity doctrine commenced with the Turner decision which was approximately 1919.

And as this Court indicated in the Kiowa decision, that sovereign immunity doctrine was created almost by accident.

It was–

Ruth Bader Ginsburg:

What about Worcester v. Georgia?

I thought that the… the tribal sovereign immunity began long before 19-something.

David H. Souter:

So did I.

John D. Kirby:

–Worcester v. Georgia, Justice Ginsburg and Justice Souter, dealt with primarily treaty rights and the… the need for Justice Marshall to try to… to put, if you will, or place the tribes who were nation… independent nations, sovereigns of this country, into some category that was different from nation states.

Our Constitution recognizes that Indian tribes are not nation… foreign nation states.

In the Commerce Clause, we speak to the Interstate Commerce Clause as States being one type of entity, Indian tribes being another, and foreign nations being another.

So tribes have always been considered differently.

And here they are domestic dependent sovereigns which has characteristics totally different from foreign nation states.

Anthony M. Kennedy:

Mr. Kirby–

Stephen G. Breyer:

I think we will hear in about a minute, if we get to the main issue of this, I suspect… you see, on the one hand if we decide in your favor, that means that any magistrate in the State, of which there may be many, in any criminal case whatsoever for probable cause can allow State officials to go into all the tribal documents no matter how many there are, no matter how related to government of the tribe, whatever they are.

They’re most… they’re most key matters for the tribe’s governance.

But if we decide against you, all it means is that you have to go to the Federal Government and convince them that this is really important and then they’ll deal with it.

John D. Kirby:

Well, Justice Breyer, Congress certainly has plenary power over Indian tribes.

Stephen G. Breyer:

I’m not thinking of Congress.

I’m saying right now… you go to the Interior Department.

They have people there.

You go tell them what the problem is, and they say… you say, this tribe is being totally unreasonable here, completely.

I don’t know why but they are.

And… and if they feel it’s important that the Federal Government now has adequate ways of getting you the information you need.

Now… now am I wrong?

John D. Kirby:

Justice Breyer, with all respect, yes, you are wrong.

Stephen G. Breyer:

There’s no way.

In other words, it’s just we’re at a… at a loss.

Either… either… we’d have to get legislation, in your opinion.

John D. Kirby:

In my opinion we have to adopt a… first of all, we cannot adopt a categorical rule that the tribes propose.

So what we are looking for is a solution that is acceptable to certainly the majority of the Court–

Stephen G. Breyer:

All right.

You… it’s acceptable to you.

You say commercial… if it’s a commercial body like a casino, that’s… they don’t have the immunity, but if it’s noncommercial, it’s okay.

But has this been argued below whether they’re commercial or noncommercial?

John D. Kirby:

–It has not been argued below, Justice Breyer.

However, that’s not the distinction that we’re making between commercial and governmental activity because, as I indicated earlier, if the government minutes, if you will, the tribal minutes, have direct evidence of a very serious felony for whatever reason–

Stephen G. Breyer:

Okay.

The distinction you would be making is?

John D. Kirby:

–A balancing interest, Your… Justice Breyer.

And I believe that–

Anthony M. Kennedy:

Why do you want to–

John D. Kirby:

–under the Younger abstention doctrine… yes, Justice Kennedy.

Antonin Scalia:

–You want to do it the hard way.

I mean, the… you win this case if we say you can subpoena the commercial… the records of a commercial enterprise being run by the tribe, but you don’t want to do that.

John D. Kirby:

We’d be happy to win this case on that ground, Justice Scalia.

[Laughter]

William H. Rehnquist:

May I ask, speaking of that… that question, does the tribe itself operate the casino or does it operate it through a corporation of some kind?

John D. Kirby:

The casino is operated through a corporation that is chartered by the tribe, not by the State.

So the tribe has certain policies wherein it blesses an organization as a… as a tribal corporation.

William H. Rehnquist:

Your… your petition raises three questions, and so far, due to no fault of your own, you’ve only covered one of them.

Do you want to try to get to the other two or three?

John D. Kirby:

Justice Rehnquist, I see that my time is drawing to a close.

If I may, I would like to reserve my time and perhaps address that in reply.

William H. Rehnquist:

Very well.

Ms. McDowell.

Barbara B. McDowell:

Mr. Chief Justice, and may it please the Court:

I would first like to correct one misunderstanding that the Court may have been left with as a result of Mr. Kirby’s comments.

There is no Federal regulation or other Federal requirement that would have prevented the county or the State from sharing with the tribe the information, the welfare applications, and so on.

Federal–

Anthony M. Kennedy:

Well, but even so, let’s assume there’s a serious felony having been committed involving a crime of violence where employees of the casino are implicated.

Surely, the district attorney’s office or the county is not going to share that information with… necessarily with… with the whole tribal council.

Barbara B. McDowell:

–In the first place–

Anthony M. Kennedy:

That seems… that seems to me a very disruptive proposal for… for orderly law enforcement.

Barbara B. McDowell:

–Well, Your Honor, nothing in the position that’s being urged here would preclude a State from proceeding against individual tribal members and searching their own–

Anthony M. Kennedy:

No, but the suggestion was that there’d be a lot of cooperation between the tribes.

But it seems to me that that may compromise a very serious criminal investigation.

Barbara B. McDowell:

–Well, and… and if that’s the case, they would not need to share the information with the tribe, but they could proceed against the individual tribal member.

Stephen G. Breyer:

No, no.

But… no, the problem that he’s trying to put… imagine the most serious crime you can think of committed off the reservation by people who have nothing to do with the Indian tribe, for example, but there is a key piece of evidence that is there in the tribal document and they want to get it.

Now, what we’ve just been told is there… they can’t… if… if we decide for the tribe, there’s no way whatsoever they can get it.

It’s impossible.

If the tribe refuses to cooperate, the Federal Government can do nothing without new laws being passed.

Now, is all that the case?

Barbara B. McDowell:

No, that’s not the case, Justice Breyer.

In many instances, of course, if there was a serious crime, it’s a crime that the Federal Government, as well as the State, could prosecute, and there’s no immunity bar to–

Stephen G. Breyer:

But if there… it’s not–

Sandra Day O’Connor:

–In the 280 jurisdiction?

Barbara B. McDowell:

–Even in the Public Law 280 jurisdiction, Justice O’Connor, because there are Federal statutes, as you’re well aware, dealing with firearms, narcotics, racketeering and so on that could often be used in this sort of situation.

In addition, the Federal Government could often bring the parties together and try to reconcile these sorts of disagreements.

Tribes, after all, are sovereign governments.

They have a significant interest in law enforcement.

Antonin Scalia:

Well, Ms. McDowell, let’s talk about their being sovereign.

I had thought that we… that our cases make very clear that their sovereignty is a peculiar and lesser kind of sovereignty.

It is certainly… does not exceed the sovereignty of the States or of foreign countries.

And I… I am perplexed at why… why the United States wants to accord the… the tribe’s commercial enterprises greater protection than is accorded to England or… or Germany or any… any foreign sovereign–

Barbara B. McDowell:

Well, of course–

Antonin Scalia:

–where suit is allowed.

And I’m sure in the course of suit, you can subpoena documents relating to that… to that commercial enterprise.

Why should we… and that provision in the Foreign Sovereign Immunities Act was simply a reflection of what the international norm had become.

Now, why in the world should we accord greater protection to this lesser sovereignty that… that consists of the Indian tribe?

Barbara B. McDowell:

–Well, in the Kiowa case, Your Honor, the Court extended tribal sovereign immunity to commercial off-reservation activities of a tribe.

The Court recognized that any limitation on tribal sovereign immunity that would exclude a tribe’s commercial activities from the protections of sovereign immunity was a task for Congress rather than for the judiciary.

And it is significant that when commercial activities of the United States Government, for example, have been… when suit has been allowed against such entities, it’s been a matter of… of statute, not a matter of judicial decision.

Indeed, the Foreign Sovereign Immunities Act is, after all, a statutory protection.

Ruth Bader Ginsburg:

I think there was a dissent in that case that made the point that Justice Scalia has been pursuing.

I’d like to back up and find out how we got here.

This is a suit brought by the tribe, not by the county, right?

Barbara B. McDowell:

That’s correct, Your Honor.

Ruth Bader Ginsburg:

And I think you are urging that 1983 is not available–

Barbara B. McDowell:

That’s correct.

Ruth Bader Ginsburg:

–to the tribe either as plaintiff or defendant.

If 1983 is not available, then what is the basis?

What statute does the tribe’s case arise under for the substantive determination that you would like to have the Court adjudicate?

If we don’t have 1983, what Federal law does the case arise under?

Barbara B. McDowell:

It’s generally been understood, Your Honor, although not specifically addressed in a decision of this Court, that the Supremacy Clause and the Federal jurisdictional statutes provide a right of action for injunctive and declaratory relief when a party is claiming that State action is precluded by superseding–

Ruth Bader Ginsburg:

Are you saying it’s a kind of Bivens action?

Barbara B. McDowell:

–It may be that.

It’s… it’s similar to Ex parte Young.

Justice Kennedy’s dissenting opinion in the second Golden State Transit case discusses this at… at some length.

Also the Court’s decision in Shaw v. Delta Air Lines provides a number of… of citations to cases that arose in this particular context.

So it is a settled, although not frequently discussed basis, of coming into Federal court to challenge State action.

David H. Souter:

Is… is there a problem on an Ex parte Young theory here?

I mean, you’re… we’re not… they’re not simply asking the tribe to stop doing something that’s unlawful by going against the officer who does it.

They are asking for tribal property.

Barbara B. McDowell:

I think you’re referring to a situation where a State would sue the tribe.

David H. Souter:

Well, they… that’s what’s going on.

The… the county here wants tribal property, right?

Barbara B. McDowell:

That’s correct.

It has obtained a search warrant against tribal property.

Interestingly enough, the return of the search warrant directs the tribe that if they want the property back, they will have to come into State court and proceed under the California Criminal Code.

David H. Souter:

Well, is that Ex parte Young?

Barbara B. McDowell:

No.

That’s not Ex parte Young.

Ex parte Young is… is based essentially on what the Court has called the legal fiction that when a State officer is violating superior Federal law–

David H. Souter:

Right.

So… so Ex parte Young isn’t going to cover a situation like that.

I mean, an Ex parte Young analog in this situation isn’t going to cover the… the request here.

Barbara B. McDowell:

–Well, it is when one is considering the tribe’s suit against the petitioners.

John Paul Stevens:

Well, if… if the… what is the Federal… basis for Federal jurisdiction of the tribe’s suit against the petitioners if 1983 is not available?

Barbara B. McDowell:

Well, the jurisdictional basis is section 1331, Federal question jurisdiction, Your Honor.

Ruth Bader Ginsburg:

But surely the Federal law that the case arises under is not 1331 itself.

You have to have another law, and the one exception to that is on the Federal side when the Court created the Bivens action because Congress had not enacted a statute like 1983 to cover Federal offices.

But you seem to be asking us to create another such category where there’s some right of action implied from what?

Barbara B. McDowell:

From the Supremacy Clause, Your Honor, because the tribe’s Federal common law immunity supersedes the State enforcement of a State search warrant against it.

Antonin Scalia:

This is such an obvious way to raise this kind of issue without that.

The next time somebody wants something from the tribe, they say no, make them go to court and appeal it.

Barbara B. McDowell:

Yes, but a search warrant is obtained in an ex parte proceeding, Your Honor.

There’s no opportunity for–

Antonin Scalia:

Well, I mean, can’t you just resist a search warrant and say, no, I think it’s an unlawful warrant and go right to the State court and appeal it?

Barbara B. McDowell:

–No, you can’t, Your Honor.

Antonin Scalia:

Everybody just has to follow this.

There’s no procedure to resist–

Barbara B. McDowell:

No, there’s no procedure for that.

And indeed, a… a party that resists the search warrant may subject itself to criminal penalties for doing so.

John Paul Stevens:

–May I ask–

Barbara B. McDowell:

So that’s not an optimal procedure.

John Paul Stevens:

–May I ask you a question about your theory that the tribe is not a person within the meaning of 1983?

You seem to assume that if they could not be made a defendant, they also could not be a plaintiff.

Don’t you make that assumption in your argument?

Barbara B. McDowell:

That’s correct, Your Honor, and that’s because the term person–

John Paul Stevens:

And isn’t that assumption plainly wrong?

Because for… to be a defendant, you have to act under color of State law.

So there are all sorts of persons who can be plaintiffs who could never be defendants.

Barbara B. McDowell:

–Well, it… it is not necessarily the case that a tribe could not act under State law, Your Honor, because, for example, with jointly administering–

John Paul Stevens:

But in the normal course of events, it wouldn’t be acting under State law.

It’s acting under its own law.

Barbara B. McDowell:

–That’s correct, or it may be acting under Federal law.

John Paul Stevens:

So in the normal course of events, the fact that it might not be a defendant wouldn’t shed any light at all on the question of whether it could be a person for plaintiff purposes.

Barbara B. McDowell:

Well, generally, Your Honor, the Court has applied the interpretive presumption that the term person doesn’t include a sovereign.

The term person appears twice in the same sentence in section 1983, so it would be curious if it was construed differently.

John Paul Stevens:

Well, but a citizen, an ordinary citizen, could be a person for plaintiff’s purposes but not necessarily a defendant.

Barbara B. McDowell:

Well, that… that may indeed be the case, Your Honor.

In the South Carolina Ports decision recently, the Court recognized that the preeminent purpose of sovereign immunity is to assure that sovereigns are treated with the dignity that their sovereign status entitles them.

The execution of a State warrant is a particular threat to the dignity of a sovereign tribe, even more so perhaps than hauling it into court.

It’s obtained ex parte.

Antonin Scalia:

You think that’s so when… when what you’re doing is getting the records of a casino?

I mean–

Barbara B. McDowell:

That’s correct.

Now, we’re not saying that every tribal business necessarily is an arm of the tribe for sovereign immunity purposes, but the particular characteristics… may I finish, Your Honor?

William H. Rehnquist:

–Thank you, Ms. McDowell.

Mr. Peyton… Mr. Peyton Chambers.

Reid Peyton Chambers:

Thank you, Mr.–

William H. Rehnquist:

Are you Mr. Peyton Chambers or Mr. Chambers?

Reid Peyton Chambers:

–Thank you, Mr. Chief Justice.

I’m Mr. Chambers.

William H. Rehnquist:

Very well.

Reid Peyton Chambers:

Thank you.

Thanks, Mr. Chief Justice, and may it please the Court:

There are three principles of Federal law that bar this search warrant.

The first is tribal sovereign immunity.

The second is the longstanding principle that States may not infringe the right of tribes to govern themselves or internal affairs on their reservation.

And the third is that there’s no act of Congress that authorizes this search warrant, though two statutes, Public Law 280 and the Indian Gaming Regulatory Act, do provide a framework for some assumption of State jurisdiction over tribes and Indians on reservation… the… reservations.

The county doesn’t claim that either applies here to authorize this act, and they do not.

I… I want to address, if I may, Justice Scalia’s question about the commercial and governmental distinction because basically the Indian Gaming Act by Congress sets up a framework for tribes to operate gaming.

This is a tribal enterprise.

It has to be, under the Gaming Act, owned and controlled by the tribe.

It… and the proceeds of the gaming have to be used for tribal purposes, chiefly tribal governmental purposes.

And they are by the Bishop Paiute Tribe.

The Bishop Paiute Tribe is a small tribe in a remote area of California.

It uses all of its gaming revenues to operate tribal programs on its reservation.

Like most tribes, the Bishop… the Bishop Tribe operates a health clinic, for example, educational programs, welfare programs–

John Paul Stevens:

May I just interrupt–

Reid Peyton Chambers:

–Certainly, Justice Stevens.

John Paul Stevens:

–on the corporate point that was brought up earlier?

Who pays the income tax on the earnings of the casino?

The corporation or the tribe?

Reid Peyton Chambers:

The… the tribe is not taxable under the Federal income tax laws, Justice Stevens.

And… and the corporation, as an arm of the tribe, is not taxable.

John Paul Stevens:

So there are no taxes on the earnings.

Reid Peyton Chambers:

There… there are no taxes.

This is a relatively small casino.

It’s in a pretty remote part of California, sort of halfway between Los Angeles–

John Paul Stevens:

But it is owned by a corporation rather than by the tribe itself?

Reid Peyton Chambers:

–Well, Justice Stevens, it’s operated by a corporation that was chartered by the tribe.

It’s wholly owned by the tribe.

Reid Peyton Chambers:

And it… it… the board of directors, for example, is removable–

John Paul Stevens:

Well, who owns the real estate that the casino is located on?

The tribe or the corporation?

Reid Peyton Chambers:

–No, the tribe, Justice Stevens.

The tribe owns all the real estate on this small reservation in eastern California.

It’s an 800-acre real estate… or trust land.

It’s owned by the United States in trust for the tribe.

John Paul Stevens:

How about the slot–

Antonin Scalia:

–But this… what you’re saying is true of all–

John Paul Stevens:

–How about the slot machines?

Who owns the slot machines?

The tribe or the corporation?

Reid Peyton Chambers:

They’d be tribal property, Justice Stevens, and operated–

John Paul Stevens:

Well, what does the… does the corporation own anything?

Reid Peyton Chambers:

–No, I don’t believe so, Justice Stevens.

It’s a simply a tribal arm and… and it’s… it’s… it is the tribe.

And it has to be the tribe under the Indian Gaming Act.

My point is that Congress–

Antonin Scalia:

You’re… you’re sure that it doesn’t own… what does it do?

What… you say it doesn’t own the land.

It doesn’t own the slot machines.

What… what does it do?

Reid Peyton Chambers:

–It… it operates the gaming facility rather than having the tribal political leaders, Justice Scalia, engaged in the day-to-day operation of the… of the gaming activity.

But it’s–

Anthony M. Kennedy:

But if… if what was formerly tribal government has now been so infused with a commercial character, that it seems to me calls tribal immunity into question generally.

Reid Peyton Chambers:

–Well, let me try to persuade you it doesn’t, Justice Kennedy.

That the… I mean here, first of all, the Indian Gaming Act was enacted for the purpose of strengthening tribal governments.

That’s what Congress was doing.

Secondly, Congress required the tribe to own and control gaming operations.

And third, Congress limited the revenues that the tribe gets from the gaming operation to be used essentially for the welfare of the members of the–

Stephen G. Breyer:

How is that different from any foreign country that wholly owns a corporation engaged in… in business?

For any foreign country, when it owns such a corporation, all the revenue, all the profits go to the treasury of the foreign country to be used for the public benefit.

At least where that is the case, I think that the sovereign immunity turns on the nature of the operation, not on whether the revenues go to the benefit of the people of the country.

Reid Peyton Chambers:

–But, Justice Breyer, there of course the country, the legislature, or the government of that country could decide what to do with its revenues.

Stephen G. Breyer:

And they’re all for… well, what is… so tell me precisely what is the difference between the casino and, let’s say, the state of… the Government of Finland which happens to own a shipping business 100 percent and the revenues and profits from that shipping business go entirely to health care, parks, other things for the people of Finland.

Now, what’s the difference between our Finnish shipping line and the casino here?

Reid Peyton Chambers:

There are two differences, Justice Breyer.

First, the Finnish government, if it wanted to could decide to invest the proceeds of the shipping line in the U.S. stock market.

The tribe cannot do that.

The tribe is constrained by Congress to use the revenues essentially for governmental purposes or for charitable donations or a couple of other purposes.

But it’s not… it’s like a State lottery I suppose, although even there the State legislature could decide to use the State lottery for some other purpose.

The second distinction really was I think pointed out in… in Justice Souter’s question to… I forget whether it was to Mr. Kirby or Ms. McDowell.

But… but Congress has enacted the Foreign Sovereign Immunities Act which provides that a commercial enterprise of a foreign nation operating in the United States is stripped of its sovereign immunity.

Congress has never done that for a tribe, and it’s very important to note that while sovereign immunity in the tribal context is a common law doctrine developed by this Court, it has been adopted by Congress.

Most importantly, in the Indian Self-Determination Act of 1975–

Ruth Bader Ginsburg:

Why aren’t you relying on Kiowa County?

Because that was as commercial as a deal could be and the Court said no sovereign immunity.

Reid Peyton Chambers:

–Justice Ginsburg, as you pointed out, there was a dissent there, but a difference in Kiowa County is that you had a tribe engaged in the commercial operation outside the reservation.

That’s not so here.

This is entirely on the reservation.

It’s a tribe–

Antonin Scalia:

That’s a fortiori for you I would think.

I would think that the difference in Kiowa is… is… it seems to me one… one might say when the money is coming… when money is sought that comes out of the tribal treasury, we’re not… we’re not willing to take into account the commercial nature of the enterprise.

It’s still coming out of the tribal treasury.

But this is quite a different matter.

Nothing comes out of the tribal treasury.

And you’re… you’re just seeking documents that belong to the commercial enterprise essentially.

I… I don’t know that Kiowa necessarily covers this case.

Reid Peyton Chambers:

–I hope I can persuade you that it does, Justice Scalia, that… that… the sovereign immunity basically covers funds and property and the operation of a tribal or any government, whether it’s the Federal Government, a State government, or a tribal government.

And it protects that categorically from judicial process of a non-superior sovereign.

Reid Peyton Chambers:

Here the tribe is not subordinate to the State of California.

The tribe is subordinate to the United States and the county is subordinate to the State of California.

But the tribe is not subordinate to California.

So the tribe’s policy cannot be displaced by California when it’s operating its own government.

Now, this could apply to any record of the tribe, and… and the tribe operates, as I said, health care programs, educational programs.

All… virtually all Indian tribes do this today, and it’s–

The tribe is subordinate to this… to this extent, that the laws of the State of California can be enforced under… under section 280.

Reid Peyton Chambers:

–Justice–

Under law 280.

Reid Peyton Chambers:

–Justice Kennedy, Public Law 280 confers criminal jurisdiction on California on offenses by or against Indians.

That’s the language of Public Law 280.

It does not apply to tribes.

The Court held in the Bryan v. Itasca County case that Public Law 280 does not apply to tribes, and in the second Three Affiliated Tribes decision, the Court said that Public Law 280 does not waive tribal immunity or interfere with tribal rights of self-governance.

So… so Public Law 280… and the State doesn’t claim… I’m sorry… the county doesn’t claim that the State has any jurisdiction over the tribe under Public Law 280.

That proceeds really to another reason why the… why the warrant is not good here under Federal law.

Anthony M. Kennedy:

Well, but it… but it has jurisdiction over individuals who by hypothesis either in this case or some hypothetical case might be given… might be being… being sheltered by the tribe.

Reid Peyton Chambers:

Well, Justice Kennedy, the tribe isn’t sheltering anybody.

This tribe wouldn’t shelter anybody and… and tribes don’t do that.

Anthony M. Kennedy:

Well, why didn’t the tribe–

–We’re… we’re talking about hypothetical instances–

Reid Peyton Chambers:

Okay.

Anthony M. Kennedy:

–as to how this… as to how this rule that you advocate would apply.

Reid Peyton Chambers:

Justice Kennedy, I think how it should apply is that the rule should encourage cooperative intergovernmental agreements between tribes and counties, and that is in fact what happens all over Indian reservations today, that–

Ruth Bader Ginsburg:

Well, then why didn’t it happen on your side?

I would like to ask a question of the same nature that Justice O’Connor asked the county.

These were employees of the casino.

They had twice received notices from the county saying, here’s the payroll thing, what it says you’ve got, and here is the welfare payment you received.

Would you please reconcile these?

And the employees didn’t respond, didn’t respond twice.

And so the county comes to the employer, the casino, and says, help us out.

Ruth Bader Ginsburg:

These people… I guess we could lock them up, but we would prefer just to have you give us the records that will enable us to determine whether there was welfare cheating.

Reid Peyton Chambers:

–Justice Ginsburg, the tribe tried to avoid this confrontation.

First, the tribe did get a letter asking for information about three employees without any specification of why.

The tribe responded that its policies do not allow a disclosure of employee information without the consent of the employees.

Then, without any further notice, the county came to the tribe with armed officers and insisted on seeing the records.

Now, the reason that… I mean, the tribe has security officers in the casino.

They came in a private part of the casino.

But obviously the tribe doesn’t want that kind of confrontation.

They told the officers where the records were.

The officers went with deadbolt cutters into the tribe’s building, cut the locks, and seized the records.

Ruth Bader Ginsburg:

Are you saying the tribe did not know that this investigation pertained to welfare fraud?

Reid Peyton Chambers:

I believe that is correct at the time that the search warrant was executed, Justice Ginsburg.

Now, the tribe took that hit basically.

I mean, the tribe didn’t do anything.

They approached the district attorney.

They said we don’t want to have this kind of thing happening again and offered to work it out by accepting simply a copy of the last page of the… California law requires a welfare applicant to sign an acknowledgement that employers can turn records over to the county investigating welfare fraud.

Ruth Bader Ginsburg:

Mr. Kirby said there was some Federal regulation that blocked that and then Ms. McDowell told us that there is no such regulation.

Reid Peyton Chambers:

I think Ms. McDowell is right, Justice Ginsburg.

But… but I guess one would have to look at the regulation, and I’m sure the Court will.

Antonin Scalia:

All right.

So what’s your suggestion on this point?

That… it seems to me that what we have is an instance where perhaps both sides feel the other was being very unreasonable, but something that should have been worked out.

And… and so because you couldn’t work it out, one way to work it out would be get the Federal Government involved, but it couldn’t be worked out.

So now we’re in a position of either having to say no matter how unreasonable the tribe is in stopping the State from getting evidence of a serious crime, well, that’s… the tribe wins, or saying no matter how unreasonable the State is in trying to interfere with the activities of the tribe, they win.

Now, to me quite honestly, neither of those solutions is satisfactory.

Do we have to choose the one or the other?

Reid Peyton Chambers:

I think that you have to choose a… a solution that respects the tribe’s operation as a government.

The tribe–

Antonin Scalia:

If I have to choose, why wouldn’t I just say, if I’m trying to look for a compromise that preserves the essence of it, very well, if I have to choose between two imaginary, unreasonable warring parties, I will say that where it’s commercial, the tribe loses; where it’s noncommercial, the tribe wins.

What’s wrong with that, which is where we started?

Reid Peyton Chambers:

–Well, what’s wrong with that here is we don’t have imaginary parties.

We have real parties here.

Antonin Scalia:

No.

I understand that.

Reid Peyton Chambers:

I understand your hypothetical and I… I don’t want to say it’s not this case.

I know I’m not supposed to say that.

But I… but I think that… that the… I mean, here what you have is a tribe that tried to work it out.

The tribe was willing and is willing to sign an intergovernmental law enforcement agreement with the county.

Tribes and counties do this all over the country.

You know this, for example, from the amicus brief filed by four States on behalf of the tribe in this case, four States that have two-thirds of the Indian reservation trust lands in the country in their borders and the majority of Indians who live on reservations within their borders.

Those States say that they work it out between tribes and counties, tribes and States.

Tribes have agreements all over the country with counties about domesticating search warrants, about extradition–

Antonin Scalia:

Those… those agreements may be prompted by at least the uncertainty of what would happen if they didn’t make an agreement.

I mean, we don’t know that those agreements aren’t prompted in part by the uncertainty as to whether, if there were not an agreement, the State couldn’t come in anyway.

Reid Peyton Chambers:

–Well, Justice Scalia, I… I think that ascribes… tribes do try to operate… tribes have a very strong interest in law enforcement too.

And… and there were plenty of alternatives here available to the county.

The county could have gone and gotten a search warrant against the individuals.

That… those are the people they had to prove had the intent to defraud them anyway.

Ruth Bader Ginsburg:

But the individuals don’t have the records.

The… the tribe does have the payroll records.

Reid Peyton Chambers:

They would presumably, Justice Ginsburg, I think have their bank accounts or… or canceled checks or… or other information.

Ruth Bader Ginsburg:

Suppose the question were the casino didn’t file whatever was required, the State… whatever payroll reports it was required to report to the State.

So it’s the tribe’s default.

And the State now wants to enforce the requirement that… that all employers in the State file certain records about their employees.

Could the State, which could go after any other operation that fails to file required papers, go after the tribe?

Reid Peyton Chambers:

Justice Ginsburg, the tribe is required under its compact with the State of California to file certain information because the tribe, for example, participates–

Yes, and if it doesn’t… doesn’t–

Reid Peyton Chambers:

–If it doesn’t, there are dispute resolution mechanisms in the compact and there’s a waiver of tribal sovereign immunity for the enforcement of those dispute resolution provisions.

So the answer to the question in… in that situation is that the State could get that information.

But here the tribe has filed all the things it’s required under that compact to file with the State–

John Paul Stevens:

–May I ask kind of a background question?

Because I’m really not sure of the answer.

Supposing a tort was committed within the casino by one non-Indian against another non-Indian.

Where would the recovery be allowed for that tort?

Could they sue in an Indian court or State court, and what law would apply?

Reid Peyton Chambers:

–Justice Stevens, in that case they would sue in State court because the State would have jurisdiction over a civil action, even actually in a Public Law 280 State between an Indian and an Indian.

John Paul Stevens:

Suppose there was a tort committed by a casino employee against a patron.

Would the State have jurisdiction over that suit?

Reid Peyton Chambers:

The State would have jurisdiction over that suit, Justice Stevens, unless the nature of the–

John Paul Stevens:

Well, could the… could the litigant in that suit get discovery from the tribe in that suit–

Reid Peyton Chambers:

–I was going to say–

John Paul Stevens:

–in State court?

Reid Peyton Chambers:

–They could not get discovery to the extent that it would intrude on essential governmental functions of the tribe because that would be–

John Paul Stevens:

Well, the very records that were involved in this case… some reason they had to identify the particular person in the casino who was responsible for the tort and you have to look at employment records to find out.

Could they get that in a civil suit in State court, do you think?

Reid Peyton Chambers:

–No… no, they could not without the tribe’s consent, Justice Stevens.

But in the ordinary course of business, if the tribe understood the nature and need of the issue, why, almost surely it would comply with a… with a request like that.

But–

William H. Rehnquist:

You… you say essential government records, but these are basically commercial records, are they not?

Reid Peyton Chambers:

–Mr. Chief Justice, I see I haven’t persuaded you.

I… I think they are given the nature of Congress’ oversight and limitations Congress has put on the operation of this facility and… and all tribal gaming facilities.

So this isn’t just any tribal business.

This is a business that’s operated under pretty strict guidelines by Congress for it to be owned and operated by the tribe.

William H. Rehnquist:

Well, if the tribe were operating a trading post, would it be different?

Reid Peyton Chambers:

It could well be different, Justice… Chief Justice Rehnquist.

Sandra Day O’Connor:

Mr. Chambers, you… the tribe filed this suit under section 1983.

Is that correct?

Reid Peyton Chambers:

It filed it under several… under 1331 and 1983, Justice O’Connor.

Sandra Day O’Connor:

And one of the questions we have to answer is whether the tribe is a person under section 1983.

Reid Peyton Chambers:

Well, if you… yes, if the Court decides that–

Sandra Day O’Connor:

And I… I would appreciate it if you would address that point because the interpretive presumption is that the tribe, as a sovereign, which you’re so strongly urging here, is not a person under section 1983.

Why should we recognize that it’s covered as a person under section 1983?

Reid Peyton Chambers:

–Justice O’Connor, you should do so because… because section 1983 is a broad remedial statute for violations of Federal rights by States.

William H. Rehnquist:

Well, does that mean we should just go wild construing it for that reason?

Reid Peyton Chambers:

No, Mr. Chief Justice.

And I don’t think you have.

I–

I don’t think we will.

[Laughter]

Reid Peyton Chambers:

–No, but… but–

Sandra Day O’Connor:

But it doesn’t include States?

Reid Peyton Chambers:

–No, it doesn’t, Justice O’Connor.

David H. Souter:

Why would it include the tribe?

And it doesn’t… it doesn’t include foreign governments.

We said a couple of years ago Paraguay couldn’t bring a 1983 suit.

Reid Peyton Chambers:

Yes, you did.

You did in the context of a pretty late capital punishment–

David H. Souter:

No, but I mean–

Reid Peyton Chambers:

–interception by Paraguay.

David H. Souter:

–No.

Sure, it was… it was late in the day for capital punishment.

We were deciding a… a question of… of the meaning of section 1983, and I don’t know why that isn’t good for your case too.

Reid Peyton Chambers:

Justice Souter, it’s not good because there wasn’t a history in 1871 of States impacting negatively on States’ Federal rights or on the Federal rights of foreign states and there was in the case of Indian tribes.

This Court had decided in 1867 two cases cited in our brief involving the Kansas Indians and the New York Indians, and the Court had decided the Cherokee cases about 30 years before where there were serious intrusions on tribes’ Federal rights by States.

So Congress, when it enacted section 1983, was not only presumptively aware of those, but in the 1870 committee report relied on by the Government, by the Senate Judiciary Committee, specifically makes reference to the Kansas Indian case when it’s considering whether Indians are citizens under the Fourteenth Amendment and when they’re not.

Ruth Bader Ginsburg:

But… but you agree, I think, that the tribe is not suable.

Under… as a defendant, the tribe is not amenable to 1983 as a defendant.

Reid Peyton Chambers:

That… that is correct, Justice Ginsburg.

But, for example, in the antitrust cases, you’ve held that States can sue as plaintiffs.

You’ve held that foreign nations can sue as plaintiffs.

Reid Peyton Chambers:

They can’t be sued as defendants under antitrust statutes.

And I think in the Vermont Natural Resources Agency case on the False Claim Act, you decided that while a State could not be sued as a defendant under the False Claim Act, that it wouldn’t necessarily preclude it from suing as a plaintiff.

Antonin Scalia:

Mr. Chambers, I thought your… your first position on this issue was that it was not raised below.

You raised that in your brief in opposition to the petition.

Are you abandoning that now?

Reid Peyton Chambers:

No, I’m not, Justice Scalia.

I’m trying to answer the question–

Antonin Scalia:

No, I understand that.

But you… but… but you didn’t mention a thing about it, and it was in your brief in opposition to the petition.

It was also in your brief.

You claim that the 1983 issue was not raised below.

Reid Peyton Chambers:

–And… and should have been if it’s going to be pressed to this Court.

I… I do agree with that, Justice Scalia.

Ruth Bader Ginsburg:

Then what is county’s jurisdictional basis?

And don’t tell me 1331 because it has to arise under some law other than 1331.

Reid Peyton Chambers:

I’m not going to tell you 1331.

Ruth Bader Ginsburg:

I don’t mean the counties.

I mean the tribe.

Reid Peyton Chambers:

No, no.

It arises under Federal common law when sovereign immunity or the right to self-government is being pleaded.

And that’s–

Anthony M. Kennedy:

And your… and your best citation for that proposition?

Reid Peyton Chambers:

–Two cases, Justice Kennedy: the National Farmers Union v. Crow Tribe and the second Oneida case, both in 1985.

Stephen G. Breyer:

So is the injunctive relief… I looked at the declaratory relief in the complaint and it didn’t seem really directly on point.

The… the request for declaratory relief had to do with the Gaming Act, law 280, compacts, et cetera.

So they didn’t seem really to raise the question we now have.

Then there’s a section on damages, which is 1983, and then some requests for injunctive relief.

Reid Peyton Chambers:

Justice Breyer, the… the first count in the complaint did raise the right of self-governance.

Stephen G. Breyer:

Not the first request for relief.

The requests for relief… there are five, and the first two have to do with the declaratory judgment.

Stephen G. Breyer:

I think they’re not right on this point, but–

Reid Peyton Chambers:

Okay.

Well, I… I think at least the… the count did do that and sovereign immunity was pled in the complaint.

And then also, the preemptions… Supremacy Clause issue that Ms. McDowell was mentioning in the Golden State Transit, I think, dissent by Justice Kennedy cites Gibbons v. Ogden and the Cooley case v. the Port of Philadelphia, going back into the 19th century for the proposition–

Anthony M. Kennedy:

–Those came up out of State courts, though.

They didn’t come up through the Federal system.

Reid Peyton Chambers:

–I guess that’s correct.

I think that… yes, there wasn’t Federal question jurisdiction in that part of… of the 19th century.

Ruth Bader Ginsburg:

So what… the Federal question jurisdiction you’re saying is Federal common law.

Anything else?

Reid Peyton Chambers:

Well, I certainly think in footnote 27 of our brief, we cited a number of Indian cases, the Chickasaw case, the Sac and Fox case, New Mexico Apache Tribe v. Mescalero, where the Court had entertained similar claims under 1331.

We’re only seeking here prospective injunctive and declaratory relief against the county, and we only brought the action when they threatened the second search and seizure.

We didn’t do anything with the… with the first intrusion.

So… so I would rely on… on… I mean, on… on the number of cases where you have allowed tribes to bring preemption type claims against States without relying on section 1983, though… though we do believe the compensatory damages are appropriate under section 1983 also.

If there are no further questions, thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Chambers.

Mr. Kirby, you have 4 minutes remaining.

John D. Kirby:

Thank you, Mr. Chief Justice.

I would like to address very briefly the flip side, if you will, of the categorical rule being proposed by the tribe and the problems with that.

And that flip side involves not the police power of the State, which we have already talked about, but the constitutional rights of a defendant who is faced with criminal prosecution in a State court when that defendant feels there is exculpatory evidence in the possession of the tribe.

For instance, it may be a video surveillance of the parking lot or whatnot that shows perhaps a self-defense defense for this particular person.

Under the tribe’s rule–

Ruth Bader Ginsburg:

It’s odd for you to be raising a tribal member as a defendant when you have potential tribal members here who might be subject to suit.

You seem a strange champion for such people.

John D. Kirby:

–It doesn’t necessarily need to be a tribal member who might be a criminal defendant, Justice Ginsburg.

It could be anyone, a non-tribal member or even a patron, who feels that there is exculpatory evidence that the tribe possesses.

And under the Sixth Amendment, that person has the right to have the State issue compulsory process to obtain that exculpatory evidence.

Under the tribe’s rule that’s being proposed, the tribe would have the ability to trump the Sixth Amendment right of the accused in that situation and not produce the exculpatory evidence.

The tribe would also have the right to trump the Fourteenth Amendment rights to a fair trial of that particular person.

And that’s the flip side of the categorical rule that’s being proposed and why we believe it’s another reason it should not be adopted by this Court.

John D. Kirby:

With regard to the 1983 action, I would like to say that not only is the tribe not a person within the meaning of the statute and the interpretive presumption that this Court has set forth in, I believe, the Vermont Agency it was acknowledged.

But also the right that the tribe is asserting, the right to self-governance, is not a Federal statutory right and it’s not a constitutional right, and as such, it cannot support a 1983 action.

And that is another reason why 1983 provides no relief for the tribe in this case.

In… in closing, I would like to say that this case does not implicate traditional sovereign immunity which is sovereign immunity from civil suit.

And there was a question raised with regard to that, I believe by Justice Scalia, pointing out that the tribe’s treasury is not at issue here.

It’s not at stake here.

What we’re dealing with is process, in this case the criminal process of the court.

And that’s a totally different situation.

This Court has never addressed criminal process as being subject to tribal immunity.

All of this Court’s decisions have addressed the tribe’s immunity to civil lawsuit.

That is not what we have here.

The doctrine of tribal immunity should not be extended in this case to include criminal process for the reasons that we have set forth.

While there may not be any wholly satisfactory result, Justice Breyer, we believe that our position is the best position.

Even if one has to choose between either of the two categorical approaches, simply even looking at the rights of an accused and compulsory process, that should mitigate toward the county’s position here.

We’ve also suggested a procedure, as presented by Justice White in Brendale, as being a potential resolution of this problem, maintaining the dignity of the tribe and also allowing the State to exercise its police power and protect its citizens as it investigates and prosecutes crime.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Kirby.

The case is submitted.