Nevada v. Hicks – Oral Argument – March 21, 2001

Media for Nevada v. Hicks

Audio Transcription for Opinion Announcement – June 25, 2001 in Nevada v. Hicks

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William H. Rehnquist:

We’ll argument now Number 99-1994, Nevada v. Floyd Hicks.

Mr. Howle.

C. Wayne Howle:

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

I would like to make three principal points this morning.

The first is that state officials should not be sued in tribal courts.

Tribal jurisdiction over state officials would be inconsistent with their status.

Sandra Day O’Connor:

You mean, ever, for anything, no matter what?

C. Wayne Howle:

Yes, Your Honor, as long as they were acting in a representative capacity for the state.

Sandra Day O’Connor:

This comes to us in the context of a state official who went to the tribal court to get authority to carry out a search warrant, and was given a warrant with certain terms and conditions to go on the reservation and carry it out.

And if the allegation is that the officer did not follow the limitations in the authorized warrant, you think the tribal court can never have jurisdiction over those actions of the officer?

C. Wayne Howle:

Your Honor, I–

Sandra Day O’Connor:

That’s your position?

C. Wayne Howle:

–Yes, Your Honor, that is–

Stephen G. Breyer:

Suppose he just goes and buys some gasoline and doesn’t pay for it.

Say he drives up to the tribal gas station, buys some gasoline, drives off, doesn’t pay for it.

I mean, can they sue him for the money in the tribal court?

C. Wayne Howle:

–The answer is no, Your Honor, not in tribal court, but in state or federal court, and there is a remedy there.

We’re not here to suggest that there’s no remedy–

Sandra Day O’Connor:

Okay, what is your authority for this broad initial proposition you’re making?

C. Wayne Howle:

–The authority is–

Sandra Day O’Connor:

What case?

C. Wayne Howle:

–Oliphant, which describes a divestiture of tribal jurisdiction which is inconsistent with the tribe’s status.

William H. Rehnquist:

But that’s criminal jurisdiction, is it not?

C. Wayne Howle:

Yes, Your Honor, it was.

William H. Rehnquist:

How about civil jurisdiction?

C. Wayne Howle:

In the case of civil jurisdiction, the case of National Farmers Union also requires an examination of the tribe’s sovereignty, and to the extent it’s been divested.

Stephen G. Breyer:

I read another brief… a 1934 opinion of the Solicitor General who said that the tribes under Acts passed by Congress had the basic sovereignty that they had for generations, unless it was taken away.

And I guess for generations they could have sued people who went and bought gasoline without paying for it.

I don’t know if it always would have been gasoline, but I assume a basic contract action would be within their grant, wouldn’t it?

C. Wayne Howle:

Well, Your Honor, first of all I’m not prepared to concede that much regarding even a nonmember in a private capacity, but with regard to state officials, there are special considerations.

C. Wayne Howle:

The state officials are protected, we know, with a certain immunity which has constitutional dimensions.

And our position is that that in conjunction with the Court’s instruction to examine the extent to which tribes have been divested implicitly because of their statuses as tribes results in the rule that jurisdiction over state officials has been divested.

Ruth Bader Ginsburg:

Mr. Howle, I could understand a position that says when a state official is acting pursuant to state authority… there’s a warrant, a state warrant… that that person can’t be questioned in tribal court.

But suppose this officer, instead of going in with a warrant, just went in, rammed down the door, beat up the plaintiff.

He’s still wearing his state uniform, and he’s still looking for evidence of whatever animal that was… would you say that even in such a case there would be no tribal court jurisdiction?

C. Wayne Howle:

We would, Your Honor.

No tribal court jurisdiction.

Ruth Bader Ginsburg:

You’re not even making a distinction that’s often made in these public employment cases between acting within the scope of one’s authority and going so far beyond the pale of anything that would fit within that authority as to be on a frolic of one’s own.

You wouldn’t–

C. Wayne Howle:

We’re suggesting a higher standard, and that being acting in a representative capacity, and that’s a standard that we see employed, albeit in an ambiguous fashion–

Antonin Scalia:

–What does that mean?

He at least has to believe that he’s pursuing the state’s business?

Suppose he’s wearing his uniform and he just goes on the reservation to beat up one of the members of the tribe that he doesn’t like, but he’s in uniform and he’s on duty.

C. Wayne Howle:

–That’s a difficult case, Your Honor.

I’ll concede, but this is–

Antonin Scalia:

Gee, I don’t think it’s difficult at all.

C. Wayne Howle:

–That isn’t this case, though.

There’s no allegation that our officials acted outside of any state authority.

The only allegation regarding scope of authority is the constitutional violation alleged, and otherwise the complaint alleges that they were acting as game wardens.

They do what game wardens do, and they get warrants and search for evidence of crime that was committed off the reservation by a reservation member.

And this is a core state function.

It’s a peace officer function.

Nevada has to be able to enforce its criminal laws within its own borders.

John Paul Stevens:

May I be sure I understand your position… are you saying that your immunity rule would only apply when the state official is acting within the scope of his authority?

Is that what your position is?

C. Wayne Howle:

I phrase it differently, Your Honor.

I suggest a representative capacity being the standard.

John Paul Stevens:

Well, supposing he goes beyond his representative capacity and does what Justice Scalia describes.

Would he be immune or not?

C. Wayne Howle:

Well, I think that… I think in that case the analysis then falls back to a different test, and that being the ordinary test for a private citizen.

John Paul Stevens:

But that isn’t this frolic of his own or something like that?

C. Wayne Howle:

Surely he’d be treated differently if he were an officer, but unrelated to any of the state business.

Antonin Scalia:

But why don’t you go the whole hog and say that it’s your position that it ought to be a question for the state court and not for the tribal court whether, in fact, he was just going in to beat up a tribal member he didn’t like, or he was going on state business.

That’s doubtless going to be one of the issues in the case, and that whole case should belong in state court rather than tribal court?

That’s not an irrational position.

C. Wayne Howle:

No, it isn’t, Your Honor.

Antonin Scalia:

Is that the position you’re taking?

C. Wayne Howle:

I’ll take that position, Your Honor.

Antonin Scalia:

Why not take it?

[Laughter]

John Paul Stevens:

But if you take that position, what about the case in which the officer acknowledges that he’s not on state business?

How about that officer?

C. Wayne Howle:

That officer would then have to be tested under the appropriate standard for a private citizen, and tribal jurisdiction over private citizens.

John Paul Stevens:

So then your view is that the immunity attaches if the officer acknowledges that he was not within his state authority.

C. Wayne Howle:

I’m sorry?

The immunity would not attach–

John Paul Stevens:

It’s backwards, yes, you’re right.

C. Wayne Howle:

–That’s correct, Your Honor.

David H. Souter:

Does your argument depend on the fact simply that there is uncertainty under the jurisdictional standard as to how far the tribal court’s jurisdiction goes, or would your argument be the same if the statute were clear beyond a peradventure of a doubt that someone who was acting in what you describe as official capacity but is being sued in his individual capacity would nonetheless be subject to jurisdiction?

In other words, are you making this argument in order to construe a vague jurisdictional grant, or are you making this argument into something that would be entitled to prevail no matter how clear the statutory grant was?

C. Wayne Howle:

First of all, Your Honor, there is… I’m sorry, I may have misapprehended.

There isn’t a statutory grant here, save for the civil rights law of the federal government.

But our first position is that there is a categorical rule that state officials doing state business should not be subject to the tribal court’s jurisdiction.

Antonin Scalia:

If I agree with you on that as to state officers enforcing the state’s criminal laws, which is what was at issue here, do I have to agree with you with regard to all other state officers?

C. Wayne Howle:

Not that… yes, Your Honor, I think so.

Antonin Scalia:

Professors at state universities?

Anybody else?

I mean, there’s a distinctive aspect of the enforcement of the criminal law, and that is that the tribe has no authority to stop the state from enforcing its criminal laws on the reservation, and one can very plausibly argue that along with that goes no authority to determine whether persons acting in that criminal law enforcement capacity have gone beyond the scope of their authority.

That’s very rational.

But I wouldn’t have to extend that to other state officers, would I?

Antonin Scalia:

Because in the civil field the state can’t just walk in and take over the enforcement of civil laws on the reservation.

C. Wayne Howle:

Your Honor, you’re correct.

The state can’t take over a reservation, but the state carries on a multitude of functions on reservations outside of those–

Sandra Day O’Connor:

Well, do you take the position that the state has authority to send its criminal law enforcement officials onto a tribal reservation to carry out state criminal law functions?

C. Wayne Howle:

–I do take that position, but I acknowledge that it’s tentatively based–

Sandra Day O’Connor:

There’s some question about that, isn’t there?

C. Wayne Howle:

–There is indeed–

Sandra Day O’Connor:

Like the right to exclude on the part of the tribal authorities?

C. Wayne Howle:

–Yes, Your Honor.

Sandra Day O’Connor:

From the reservation?

There is no… what would you point to for the extraordinary notion that the state criminal law enforcement officers have total freedom to go on a reservation to carry out criminal law functions?

C. Wayne Howle:

I point to the fact that state–

Sandra Day O’Connor:

Is there some law or some case that you can point to for that?

C. Wayne Howle:

–Yes, the case of Ex rel re v. Martin, and I believe McBrattney described the existence of state criminal jurisdiction on reservations.

It’s not an exclusive jurisdiction that the tribes–

Antonin Scalia:

For crimes committed off… I perhaps put my hypothetical a little too broadly, but in fact the tribal courts do not have jurisdiction to try for crimes committed off reservation, do they?

If a crime is committed off reservation, it’s not within the jurisdiction of the tribal court, is it?

Even if it’s a crime committed by a tribal member, or a tribe–

C. Wayne Howle:

–I think that’s correct, Your Honor.

I’d say it with some uncertainty–

Antonin Scalia:

–Well, I think it’s pretty crucial to your case, and I assume that to be the case.

I assume that to be the law… that the state has the authority to enforce its state criminal laws with regard to offenses committed off the reservation even when that requires the state to go on the reservation to get the culprit.

C. Wayne Howle:

–Yes.

That all is correct with my understanding, too.

Antonin Scalia:

It’s not up to the tribe to enforce that law.

It must be up to the state to enforce it.

Since only the state can enforce it, I assume the state can go on the reservation.

C. Wayne Howle:

The state also has criminal jurisdiction on reservations over a nonmember crime.

Ruth Bader Ginsburg:

If that much is right, then getting the back-up of the tribal court’s approval for the warrant was just a polite gesture, meaning a form that was not necessary legally.

In other words, here we do have an investigation of something that occurred off the reservation.

Ruth Bader Ginsburg:

The warrant is to go on the reservation to investigate, but the crime itself was off reservation.

C. Wayne Howle:

That’s correct, Your Honor.

Ruth Bader Ginsburg:

And I think Justice Scalia asked you, would the tribal court have authority to prosecute a case that occurred off the reservation.

I think you said the answer was no.

C. Wayne Howle:

I think that’s correct.

I am tentative on that answer–

Ruth Bader Ginsburg:

But you’re not certain about it.

C. Wayne Howle:

–I know in this case that the tribe would not prosecute that crime.

I do know that for a certainty.

Ruth Bader Ginsburg:

But then the next thing is that the crime occurs off the reservation.

The warrant is to go on the reservation and conduct a search there.

As you understand it, it is not necessary to get any permission of any kind from the tribe, because what the state official is enforcing is an investigation for a crime that occurred off the reservation.

Is that right?

C. Wayne Howle:

Yes, Your Honor.

I believe that the state’s physical jurisdictions follows its legal jurisdiction.

Sandra Day O’Connor:

So you think it was not necessary to get the tribal court’s permission to carry out a search warrant on a house belonging to a tribal member on the reservation?

C. Wayne Howle:

Correct, Your Honor, although I admit I–

Sandra Day O’Connor:

I think that’s an unusual proposition.

Do you cite anything in your brief for that proposition?

I thought we took it as a given that the tribal court had to authorize the search.

C. Wayne Howle:

–In my reply brief on page eighteen, I’ve referenced some authorities that are indirectly related that establish a criminal jurisdiction for the states on reservations.

It’s only by reasoning and inference that I get to the conclusion that we have this authority, and if we had not sought the tribal judge’s approval, perhaps we’d be here on that issue as well.

I confess there’s… it’s a great area of uncertainty, but it is a concurrent jurisdiction that the state and the tribe have on reservations.

Reservations are still part of the state, and so the state has to be able to perform these functions in order to do its job properly with law enforcement.

Antonin Scalia:

I certainly wouldn’t think that the state’s ability to enforce criminal laws off the reservation is going to be dependent upon whether a tribal court will deign to issue a search warrant or not.

I mean, that would be a tremendous incursion upon the state’s sovereignty that it can’t enforce its criminal laws unless it gets a tribal court to let it go on and search for the offense.

C. Wayne Howle:

Exactly.

And that’s the position we have–

Antonin Scalia:

I assume that to be pretty clear law.

C. Wayne Howle:

–Yes.

C. Wayne Howle:

Another point we’ve made is the way that this–

Antonin Scalia:

Where did you take that position, because I didn’t see the–

C. Wayne Howle:

–I’m sorry.

It’s on page eighteen of my reply brief, in the second paragraph.

The argument also incorrectly assumes state officials are powerless to pursue state law enforcement objectives on a reservation, except with the tribe’s consent.

And here I’ve identified the fact that states do have authority over off-reservation crimes committed by tribal members, and that reservations are part of the state within which they occur.

Ruth Bader Ginsburg:

–So now you are confirming that it was a matter of a test to ask the tribe, but it was not necessary.

C. Wayne Howle:

That’s correct, Your Honor, although we did ask the tribal judge on both occasions out of deference to the tribe.

William H. Rehnquist:

And he granted permission, did he not?

C. Wayne Howle:

Yes, Your Honor.

Antonin Scalia:

What statutes are there concerning state criminal law jurisdiction with respect to either on-reservation or off-reservation crimes?

Are there some federal statutes that speak to that issue?

C. Wayne Howle:

There is federal statute on the matter.

It eludes me at the moment.

Certainly Public Law 280 was a grant to certain states of jurisdiction on reservations.

Sandra Day O’Connor:

Was that, in effect, pure in Nevada?

C. Wayne Howle:

It was in the past, but it isn’t now.

All that jurisdiction has been–

Sandra Day O’Connor:

Then you’re not relying on Public Law 280?

C. Wayne Howle:

–No, we’re not.

David H. Souter:

While we’re on the subject of federal statutes, one thing you said surprised me, and I just want to make sure I understand it.

Is it your position… do you understand that there is no federal statutory recognition for tribal jurisdiction?

C. Wayne Howle:

Not in this case, not with this tribe.

There–

David H. Souter:

Well, what about other cases?

I mean–

C. Wayne Howle:

–Treaties and statutes unique to different tribes, there’s a whole–

David H. Souter:

–But there are all specific to the tribe or to the jurisdiction?

There is no general statutory recognition?

C. Wayne Howle:

–As far as I know, Your Honor, that’s correct.

Stephen G. Breyer:

Why, just out of curiosity… not quite just out of curiosity, but why didn’t the defendant instead of sort of engaging in all of these proceedings for ten years… why didn’t he simply remove the case to federal court?

C. Wayne Howle:

I’m sorry?

The defendant–

Stephen G. Breyer:

Why didn’t the defendant in this case simply remove it to the federal court?

There is no–

C. Wayne Howle:

–Your Honor, that goes to the question brought up in U.S. brief… I don’t see removal authority.

Stephen G. Breyer:

–Well, it says… you’d have to read the word state to mean state or a tribe.

But one… maybe you can’t, maybe you can’t.

Antonin Scalia:

Isn’t that hard?

[Laughter]

Antonin Scalia:

You say that as though it’s the simplest thing in the world.

Stephen G. Breyer:

I thought for you it might be.

[Laughter]

Stephen G. Breyer:

I mean, that is an issue.

But if that’s possible, then doesn’t that offer a perfect solution?

There’s no problem.

C. Wayne Howle:

There’s no perfect, exact solution.

Stephen G. Breyer:

Any state official’s not bothered, all he has to do is remove, and then that would be the end of any potential conflict.

C. Wayne Howle:

That would be a–

Ruth Bader Ginsburg:

Mr. Howle, if that had been the case, then this Court would not have had to go through the motions it went through in those two cases that says you have to exhaust the tribe, and then you can go into the district court at the end of the line.

It’s only because you couldn’t get out… there was… I am unaware of any authority that says you can remove from the tribal court to any other court.

C. Wayne Howle:

–I’m not aware of any either, Your Honor.

We spent three years in tribal court arguing our immunity questions.

Stephen G. Breyer:

Did you try to remove it?

Maybe it’s just obviously impossible to do, and if it is impossible to do, then the conflict of interest that you’re talking about exists, but that’s why I wondered… I see a lot of cases where apparently it starts off in the tribal court, and then they’re over in the federal court, and there are injunctions being issued back and forth.

What’s the basis?

Is there some… I’m trying to see if this conflict of interest is necessarily there.

The basis is you can’t remove.

C. Wayne Howle:

We considered removal but didn’t see that it was specifically provided for in the statutes.

We also were aware of the exhaustion requirements, and we attempted to exhaust.

Antonin Scalia:

And, of course, removal would not be an option… removal to a federal court would not be an option.

The whole matter would have to be left in tribal court, even though there was an enforcement action with respect to state criminal law, if a 1983 action hadn’t been part of the claim, if it had just been the tribal claim under tribal law.

Then you would have been stuck.

Even on the fanciful reading of Section 1441, you couldn’t get it into federal court.

C. Wayne Howle:

Yes, Your Honor.

Stephen G. Breyer:

My question is best reserved for the Solicitor General.

I mean, you’re not aware it?

C. Wayne Howle:

Maybe he can explain… or she, I’m sorry.

On the question of immunity, we did spend three years trying to exhaust this issue in tribal court, and only then went to the federal court with an independent action.

And our position on the immunity issue is that immunity is a bar to suit, and it should be decided when it’s raised.

And therefore, if the tribal court won’t acknowledge the immunity–

William H. Rehnquist:

What is the source of immunity law here?

I mean, I take it your position is it can’t just be finally determined by the tribe but should finally be determined by the law of Nevada?

C. Wayne Howle:

–It depends on the claim, Your Honor, on a 1983 claim, assuming that there’s one available in tribal court.

I guess that would be a question of federal law.

The other ones would be answered in reference to the state law.

William H. Rehnquist:

If it’s a 1983 action, then immunity is determined under qualified immunity doctrines laid down under 1983?

C. Wayne Howle:

Possibly so, Your Honor, although that is a question as well.

The whole question of whether 1983 is available in tribal court, I think, is cast in doubt.

William H. Rehnquist:

What was the basis of the action in the district court?

It was 1983, was it not?

C. Wayne Howle:

In the tribal court, Your Honor?

William H. Rehnquist:

No, this case comes to us from the Ninth Circuit.

C. Wayne Howle:

Yes.

William H. Rehnquist:

And so there obviously must have been some action brought in the district court.

The District Court of Nevada.

C. Wayne Howle:

Nevada brought the action.

William H. Rehnquist:

Nevada brought the action.

C. Wayne Howle:

It was an independent action to enjoin the tribal court after three years there.

Ruth Bader Ginsburg:

Those two cases that we had, that said that’s what you do.

Ruth Bader Ginsburg:

You go to the district court.

And I think in those cases they said the reason why you have to do that is that there is no removal.

That was the whole point of Nevada coming into the district court.

If you could have removed to get there, you wouldn’t have to bring an action… an independent action.

C. Wayne Howle:

Yes.

Ruth Bader Ginsburg:

I thought that there were statements in more than one of our cases to the effect that there is no removal from tribal to federal court.

And you say you don’t know?

C. Wayne Howle:

I’m not aware of language like that, Your Honor.

Ruth Bader Ginsburg:

If this case had been brought in state court under 1983, could the tribal claims that were being asserted under tribal law be pended to that action in state court?

C. Wayne Howle:

They could be presented to the court, Your Honor, and then I think it would be a matter of comity for the supreme court to consider whether or not to acknowledge those claims brought under tribal law.

It would be up to the state supreme court, ultimately, so it would be a question of state law.

Ruth Bader Ginsburg:

In other words, these claims under tribal law are left to the grace of the state.

The state can allow them if it wants to, disallow them if it wants to.

So you’re saying, as far as tribal law is concerned, the tribe has no authority, and the state is not obliged to hear those claims.

C. Wayne Howle:

Ultimately yes, that’s correct, Your Honor.

Anthony M. Kennedy:

As you understand it, where does the tribe get its tort law?

Does it borrow Nevada law?

C. Wayne Howle:

As I understand it, yes.

It does… it uses Nevada law as a guide, which makes it very uncertain, but it does refer to Nevada law quite often.

Anthony M. Kennedy:

And as you understand the complaint, is the liability under Nevada tort law as borrowed by the tribe, roughly coextensive with the liability under 1983, other than say for attorney’s fees?

C. Wayne Howle:

Well, first of all the state tort law supplies limits or caps on claims, which aren’t available under 1983 actions, so there is some–

Anthony M. Kennedy:

Does the tribal law borrow those caps as well, as you understand?

C. Wayne Howle:

–As I understand it, they would not, Your Honor.

Anthony M. Kennedy:

Well, then, the liability is coextensive under the tort law theories and under 1983.

C. Wayne Howle:

If this were in tribal court, Your Honor, as I understand it.

Anthony M. Kennedy:

All right.

And the tribal court doesn’t borrow Nevada law insofar as the caps are concerned, as best you understand?

C. Wayne Howle:

That’s correct, although I don’t have an expressed statement from the court.

Antonin Scalia:

What is… the tribal law is codified, or is it just common law developed by the tribal court, case by case?

C. Wayne Howle:

A little of the first and a lot of the latter, Your Honor.

C. Wayne Howle:

There isn’t law and order code, but a great deal of it, I think, is just the custom in practice.

Antonin Scalia:

Law and order code is civil actions, or just criminal?

C. Wayne Howle:

It includes civil matters, I believe, as well as criminal.

Stephen G. Breyer:

Can I still… I’m not going to give up yet on getting your opinion on this.

C. Wayne Howle:

Okay.

Stephen G. Breyer:

What the Solicitor General precisely recommends is recognizing the policy of the removal statute, namely remove… that’s the policy… that you could have what the court did in El Paso which is, quote, an injunction given by a federal court against further litigation in tribal courts that in practical effect gives the same result as a removal.

Now, that’s the Solicitor General’s precise… which then just like removal would eliminate any possibility of conflict between state and tribal interests.

So that’s what I’d like your comment on.

C. Wayne Howle:

Okay, Your Honor.

We see a difficulty with the U.S. position, because it works very well for the federal civil rights claims.

Those are immediately removed.

The difficulty is with tribal claims, because there… the U.S. suggests there’s a federal defense, but that–

Stephen G. Breyer:

In your case it would resolve because the whole case would come along, and what you’d say about other cases is sufficient unto the day.

C. Wayne Howle:

–I’m sorry, Your Honor.

Stephen G. Breyer:

I guess normally when you remove, the entire case goes with the–

C. Wayne Howle:

Yes.

Stephen G. Breyer:

–So if the injunction is the same as removal, you get to the result that you want in respect to all of the claim.

C. Wayne Howle:

Unless there were not a federal claim to begin with in order to remove it.

I’d like to reserve the rest of my time with your–

William H. Rehnquist:

Very well, Mr. Howle.

Mr. Anaya, we’ll hear from you.

S. James Anaya:

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

This case began when Nevada game wardens sought the approval of Fallon tribal court not once but twice, in order to come on the Fallon reservation and conduct a search against a tribal member.

Sandra Day O’Connor:

Well, the petitioner says they didn’t even need to get tribal court permission to get a search warrant.

S. James Anaya:

We disagree, and the authority of this Court will indicate the contrary.

Sandra Day O’Connor:

And what do you rely on?

S. James Anaya:

Williams v. Lee, and its progeny, Your Honor, which establishes clearly that the sovereignty of tribes precludes the authority of the state to the extent it interferes with the ability of the tribe to make its own laws and be governed by them.

Antonin Scalia:

But it’s not governed by its own criminal laws insofar as a crime that occurs off the reservation is concerned.

Could this tribal court have tried this crime?

S. James Anaya:

Your Honor, the tribal court… if this were a crime under tribal law, and it is not a crime under tribal law as far as I know.

Antonin Scalia:

The tribe can make off-reservation crimes a crime under tribal law triable in the tribal court?

S. James Anaya:

It could as to members, perhaps.

Antonin Scalia:

Oh, crimes by members.

S. James Anaya:

By members.

Antonin Scalia:

Not crimes against members.

S. James Anaya:

Yes, Your Honor.

Antonin Scalia:

And what if they did make it triable in tribal court… would the state still be able to prosecute it as a violation of state law?

S. James Anaya:

The state could, in any instance, prosecute this case.

What is at issue here is whether it can go onto the reservation to execute a warrant.

Antonin Scalia:

Well, the state’s ability to prosecute is not worth a whole lot if it leaves the by your leave of somebody else to go and grab the person who allegedly did the offense.

S. James Anaya:

That may be.

Antonin Scalia:

That’s what you’re saying… that the state is entirely at the mercy of the tribal court to get a search warrant, and I presume an arrest warrant as well.

S. James Anaya:

Yes, Your Honor, that is what I’m saying.

Antonin Scalia:

That’s quite an incursion on the state’s criminal jurisdiction, it seems to me.

S. James Anaya:

The state judge who issued the state warrant agreed with that position.

The state judge himself explicitly said on the face of the warrant that the warrant was invalid within the reservation–

Antonin Scalia:

He might have been wrong.

I don’t know the man.

S. James Anaya:

–Well, he could be wrong, but we… he got it right as far as our position goes, Your Honor.

The Attorney General of Nevada himself has issued an opinion, has issued an opinion saying that the state has no authority to go on the reservation to execute searches or investigate crimes against members.

Antonin Scalia:

Where is that?

S. James Anaya:

Your Honor, that’s not in our brief.

Antonin Scalia:

I didn’t think it was, and I would have sat up, and my eyes would have popped open.

[Laughter]

S. James Anaya:

Well, Your Honor, we were surprised–

David H. Souter:

Was that opinion an opinion of state law?

S. James Anaya:

–Yes.

Well, it was an opinion of federal law.

David H. Souter:

He was applying federal… the Attorney General of Nevada was–

S. James Anaya:

The opinion was applying an interpretation of federal law, and the lower court have held the same.

Stephen G. Breyer:

–What about John Marshall, Cherokee Nation v. Georgia?

S. James Anaya:

Exactly, Your Honor.

The laws of the state of Georgia have no force in the territory of the Cherokee.

William H. Rehnquist:

But that doesn’t quite resolve this question, it seems to me.

Is there some case authority, either in the Nevada courts or the federal courts, that a federal… that a state official seeking to enforce a federal, state summons or subpoena or arrest warrant can’t go on the reservation unless the–

S. James Anaya:

Yes, Your Honor.

The Turtle case.

William H. Rehnquist:

–The what?

S. James Anaya:

The Turtle case that we cited.

I believe it’s the Ninth Circuit, which specifically precluded Arizona from going onto the Navajo reservation and trying to execute a warrant against people on the reservation.

Ruth Bader Ginsburg:

Suppose this had been a federal officer executing a similar warrant investigating violation of federal–

S. James Anaya:

Well, that would be a different matter, Your Honor.

Under the Major Crimes Act, federal officers do have jurisdiction over the reservations.

This is a state officer, and the weight of authority in the lower federal courts and in the state courts interpreting federal law is that state authorities do not have the authority to go on the reservation and execute warrants–

Antonin Scalia:

–How much of the authority pertains to crimes committed off reservation?

S. James Anaya:

–Most of it, Your Honor, or a good deal of it, at least, and the Turtle case is–

Antonin Scalia:

Turtle?

What else?

That’s a Ninth Circuit case, I gather, right?

S. James Anaya:

–Well, we have authority… the Attorney General’s opinion that I cited to.

Antonin Scalia:

I’d like the cite of that.

S. James Anaya:

The Attorney General’s Opinion Number 80-42.

Nevada Highway Patrol Jurisdiction on Indian Reservations.

Nevada… again, Opinion Number 80-42, and we can make this available–

Antonin Scalia:

Wait… Nevada Highway Patrol.

It’s just related to what?

The Highway Patrol doing what?

S. James Anaya:

–Does Nevada Highway Patrol acting under the authority granted by the state, have the authority to investigate accidents on a reservation?

To go onto the reservation, investigate accidents–

Antonin Scalia:

An accident that occurred on the reservation?

S. James Anaya:

–Occurring wherever… to investigate accidents on the reservation, even to pursue someone onto the reservation.

And the Nevada Attorney General, citing federal authority, citing the opinions of other state courts, says no.

This is the common understanding.

This was the understanding of the state judge who issued the warrant.

It was the understanding of the tribal authorities that the state authorities could not go onto the reservation.

Antonin Scalia:

It’s not the understanding of the state here.

They had an epiphany or something.

S. James Anaya:

I think that’s right… they did have an epiphany.

In their opening brief, they didn’t pick this position.

They did not pick this position.

You will recall that Mr. Howle, in articulating the position, now referred to the reply brief.

He did not reply to the opening brief.

This came as a surprise to us.

If they had taken that position, you can be sure we would have included sufficient authority for the proposition that the state authorities cannot go onto the reservation to investigate crimes committed even off of the reservation by nonmembers, or allegedly by nonmembers.

Sandra Day O’Connor:

Mr. Anaya, we’ve gotten pretty far afield, I think, from what we have to resolve in this case, possibly, and there is remaining, as I understand it, a suit by Mr. Hicks against a state official in his individual capacity.

S. James Anaya:

Your Honor, that’s correct.

Sandra Day O’Connor:

And some other people too?

S. James Anaya:

Yes.

No.

They’re all state officials.

Three state officers who participated.

Sandra Day O’Connor:

And that remains.

In their individual capacity.

Sandra Day O’Connor:

The official capacity suits have been dropped.

S. James Anaya:

That is correct.

Sandra Day O’Connor:

The state says these officials have personal immunity from that suit.

S. James Anaya:

Yes, Your Honor.

Sandra Day O’Connor:

In tribal court.

S. James Anaya:

Yes.

Sandra Day O’Connor:

And that issue was raised by them in the tribal court, right?

S. James Anaya:

It’s ambiguous.

They raised it in the context of a motion to quash service of process.

They raised the threshold of jurisdictional issues and conflated what appeared to be personal immunity defenses with those.

Sandra Day O’Connor:

And the tribal court declined to what?

Rule specifically on the personal individual immunity?

S. James Anaya:

That’s correct, Your Honor.

The tribal court only reached the threshold–

Sandra Day O’Connor:

The subject matter jurisdiction?

S. James Anaya:

–That is correct.

Sandra Day O’Connor:

And then the state went to federal district court and said, you, federal district court, should decide these issues.

Is that right?

S. James Anaya:

That’s correct.

The state went immediately to federal district court.

The state could have–

Sandra Day O’Connor:

Well, immediately after three years.

S. James Anaya:

–After a month, after about two weeks, I think.

Sandra Day O’Connor:

A month.

Okay.

S. James Anaya:

In that time period–

Sandra Day O’Connor:

All right.

S. James Anaya:

–after the court ruled.

Sandra Day O’Connor:

And the district court did not deal with individual immunity allegations?

S. James Anaya:

It did not.

The state could have immediately moved for a motion to dismiss.

At that time we presumed that the tribal court would convene an evidentiary hearing and would have heard the personal immunity defenses, would have heard–

Sandra Day O’Connor:

No, by now we’re in the federal district court.

S. James Anaya:

–That’s right.

Sandra Day O’Connor:

And the district court didn’t deal with it, and then it went to the Ninth Circuit Court of Appeals, and it didn’t deal with that issue, either.

S. James Anaya:

The district court, nor the circuit court, dealt with the personal immunity defenses because they applied the rule of exhaustion.

Sandra Day O’Connor:

Is there a 1983 action here, or not?

S. James Anaya:

The complaint by Mr.–

Sandra Day O’Connor:

It isn’t clear to me.

S. James Anaya:

–The complaint by Mr. Hicks before the tribal court pleads violations of United States constitutional law.

Those allegations have been treated as allegations under Section 1983.

Sandra Day O’Connor:

Well, do you represent Mr. Hicks?

S. James Anaya:

Yes, I do.

Sandra Day O’Connor:

And is it a 1983 action, or is it not?

S. James Anaya:

We… it is a 1983 action.

Anthony M. Kennedy:

Are you aware of any court within the territory of the United States that can interpret 42 U.S.C. 1983 without review by this Court?

I suppose France or England could apply 1983 and we couldn’t review their… are you aware of any court interpretation?

S. James Anaya:

I am not.

I am not, and we’re not contending necessarily the tribal courts would not be subject to review.

Anthony M. Kennedy:

Well, how would that happen?

S. James Anaya:

It would happen along the device that Justice Souter has suggested… excuse me, Justice Breyer has suggested… a device that the United States has suggested as well–

Anthony M. Kennedy:

Even apart from removal?

S. James Anaya:

–Well, that wouldn’t be a review, but that would be a device by which the action could be heard by the federal court.

David H. Souter:

You mean injunction?

S. James Anaya:

Yes, an injunction.

Another possibility–

Anthony M. Kennedy:

You mean an injunction after the tribal court has ruled on the issue, then you enjoin the tribal court because it’s made a mistake in interpretation of federal law?

S. James Anaya:

–Your Honor–

Anthony M. Kennedy:

It seems to me that that’s more intrusive–

S. James Anaya:

–It is.

Anthony M. Kennedy:

–than what they’re asking for here.

S. James Anaya:

And we are not saying that we would favor that approach.

Anthony M. Kennedy:

All right.

So under your position, there is no way to review a ruling on a matter of federal law given by the tribal court.

S. James Anaya:

That is yet to be determined… could be determined by the lower courts.

Anthony M. Kennedy:

What is your position as to whether or not a ruling on an issue of federal law in a tribal court in this suit can be reviewed ultimately in a federal court?

S. James Anaya:

Your Honor, Mr. Hicks at this point would choose not to take a position because in litigating the case in the tribal court, if this Court were to affirm jurisdiction, he would have to explore his options whether or not it would be to his advantage to seek some kind of review depending upon the tribal court, however–

Anthony M. Kennedy:

Suppose, at least so far as I were concerned… and I can’t speak for my colleagues… that the case turned on whether or not there ultimately could be review in the federal court.

Then I would say you would have to lose, because you have indicated to me that that review is problematic, or at least reserving your position, and you’re later going to say there is no review.

S. James Anaya:

–I simply articulated the position to Mr. Hicks.

The position of the tribe and the tribal court in this case is that there could be review.

There could be review after exhaustion, and that would be the appropriate–

Stephen G. Breyer:

After exhaustion?

I could imagine–

Anthony M. Kennedy:

–May I just pursue?

And that review consists of an injunction for some kind of abuse of discretion by the trial court, or–

S. James Anaya:

–That would be more the removal theory of the United States.

Anthony M. Kennedy:

–Suppose the removal theory doesn’t work… is there any other way to review it?

S. James Anaya:

The review mechanism would work something along the lines of the following although, again, this is uncharted territory.

The claims would be exhausted in tribal court, and then assuming that the defendants were to lose, they could then go to the federal court and seek some kind of relief against the tribal court.

Anthony M. Kennedy:

What… some kind of… what kind of relief?

I’ve never heard of such a procedure.

S. James Anaya:

Well, it would be the same kind of… essentially the same kind of action that defendants have taken in order to challenge the jurisdiction of trial courts… essentially an injunction action.

But in the course of determining whether or not an injunction should lie, the court would then review the jurisdictional issues as well as the merits, or at least the application of the law in the Section 1983 action.

Sandra Day O’Connor:

Why shouldn’t the federal court have decided these issues of immunity of the officers when it had the case before it?

S. James Anaya:

It applied the rule of exhaustion that this Court laid down in National Farmers Union, as well as Iowa Mutual v. LaPlante.

Anthony M. Kennedy:

Well, that case really just went to exhaustion on the jurisdictional issue.

S. James Anaya:

Yes, they did, but it could be that the exhaustion could also apply to the merits, and indeed could.

Sandra Day O’Connor:

But did the district court have the power to decide that issue when it had the case in front of it?

S. James Anaya:

Strictly speaking, I believe it did.

This Court has articulated the exhaustion rule as one of comity, and so out of comity, out of respect for the tribal court–

John Paul Stevens:

But it is correct, is it not, that we’ve never held that there must be exhaustion of anything other than the jurisdictional issues?

S. James Anaya:

–Yes, Your Honor, that is the case.

But the exhaustion doctrine is a flexible one, and it is intended to accommodate the interests that might–

Anthony M. Kennedy:

But the exhaustion doctrine assumes that there is some later substantive power to exercise jurisdiction over the case, but you question whether that power ultimately exists.

You don’t have exhaustion if there’s not going to be some further jurisdictional substantive review.

S. James Anaya:

–The position of the tribe in this case is that there could be substantive review, and–

David H. Souter:

As I understand it, the tribe’s position would allow for an injunction on either or both of two grounds.

One, of course, the jurisdictional issue could be reviewed again as the basis for the injunction, and if the tribe won the jurisdictional issue, then presumably the merits of the 1983 claim could also be litigated in the federal court, and if the federal court thought the tribal court was wrong on that, it would enjoin enforcement of the judgment.

Is that correct?

Is that the way it would work?

S. James Anaya:

–Yes, Your Honor.

Ruth Bader Ginsburg:

But you’d have to wait until the end of the line, and that seems to be at odds with the notion of qualified immunity that you get out sooner rather than later.

Here your positing a case… and I think the Ninth Circuit supported it… that you must exhaust in the tribal court, even your qualified immunity defense, you must exhaust in the tribal court before you can come over to seek an injunctive relief in the federal court.

S. James Anaya:

Right.

The way we contemplate it working, if such an exhaustion were to apply to a 1983 cause of action or to the tribal cause of action in this case, would be for the tribal court to immediately move forward to determine the qualified or personal immunity defenses.

And at that point, the defendant could go to federal court to seek review of that prior to an adjudication of the merits of the claim in the tribal court.

Antonin Scalia:

Even in the federal court system, as I recall it, we allow the denial of qualified immunity to be appealed immediately, because, you know, the belief is that the important interests served by it are simply defeated if you wait until the whole litigation is finished before you tell the governmental agent, well, you don’t have to worry about it.

Why should there be a different rule when we go that far to allow such an interlocutory appeal in the federal system?

It seems very strange to require the government official to go all the way through the tribal court and await an injunction afterwards.

S. James Anaya:

Well, what we’re suggesting, or what the model would suggest, is that there would be the opportunity to go immediately upon a determination in the tribal court of the qualified immunity defense to the federal court, so it would be in the nature of a interlocutory review.

David H. Souter:

Then if you lost and you went back and you exhausted on the merits, there would be another opportunity to go into the federal court for a different injunction.

S. James Anaya:

Yes, Your Honor.

David H. Souter:

Okay.

I didn’t understand.

Antonin Scalia:

You would allow it immediately as soon as the qualified immunity–

John Paul Stevens:

–But would it not have been consistent with our cases for the district court in this case to have said I’m going to decide the qualified immunity issue right away.

He didn’t do that… it would have been consistent with our cases for the district judge to have done that, would it not?

S. James Anaya:

Perhaps, Your Honor, but the rationale of National Farmers Union of Iowa Mutual, I think, counseled in favor of what the district court did.

John Paul Stevens:

If you assume the rationale of exhaustion applies beyond jurisdictional issues.

S. James Anaya:

Yes, Your Honor.

And I think–

John Paul Stevens:

It has not been decided.

S. James Anaya:

–And I think it does.

The rationale is to support the self-governance of the tribe, and to support the development of tribal courts and their autonomy.

And for the district court to have ruled on something–

John Paul Stevens:

Yes, but it supports them to the same extent that it would respect the sovereignty of the states.

John Paul Stevens:

Of course, if it were a state court involved, they would respect the jurisdiction, require exhaustion on the jurisdictional issue, but nevertheless might have gone ahead on the merits, if this were a state court rather than a tribal court.

You’re in effect asking for a stronger rule of exhaustion in tribal courts than if it were a state court.

S. James Anaya:

–Well, Your Honor, we think that the situation here is one in which we have a tribal court struggling to maintain its jurisdiction, and the deference that the exhaustion doctrine gives to tribal courts is warranted, and the interests of the state officials… the federal interest that might exist in ensuring that their interests are protected, are sufficiently met by the exhaustion rule as long as there is some kind of review and, perhaps, an interlocutory review of the personal immunity defenses.

Sandra Day O’Connor:

Do tribal courts routinely hear Section 1983 federal claims?

S. James Anaya:

Not routinely, Your Honor, but there is nothing… there is no federal law that precludes them from hearing a 1983 claim.

The Fallon tribal court is a court of general jurisdiction.

The 1983 statute is a jurisdiction intended to provide broad remedies for violations of constitutional rights and, in the absence of an affirmative limitation on the jurisdiction of the court, the tribal court, under federal law, it seems to follow quite naturally that the Fallon tribal court as a court of general jurisdiction would have jurisdiction to hear a Section 1983–

Anthony M. Kennedy:

It is still not clear to me the theory on which any such… any tribal court determinations on such matters can be reviewed in any federal court.

What is the theory?

S. James Anaya:

–The theory is that there is a federal interest in ensuring that the state defendants’ immunity defenses would be sufficiently aired–

Anthony M. Kennedy:

So is it a federal question?

Use federal question jurisdiction to this–

S. James Anaya:

–Well, that’s right.

This would assume that immunity defenses would be defenses under federal law, and that is the position that the United States has taken, and it’s a position that the tribe accepts… that these defenses could become federal law and hence they would be the basis for review in federal court.

Antonin Scalia:

–There are other situations where we just fire off injunctions where we think a federal interest may be involved?

Do we have authority to do that?

S. James Anaya:

This is a unique context, Your Honor.

Antonin Scalia:

Yeah, it sure is.

S. James Anaya:

It is.

And the unique context and wrinkles that exist here are because of historical situations and patterns that have existed, that have arisen and continued, and require this Court to–

Antonin Scalia:

Well, maybe they require.

I mean, there are two conclusions that you could draw from the absence of any review provision in the tribal court for a 1983 action.

One is that we could invent some never-before-heard-of, and never-elsewhere-used power of this Court or federal courts to issue an injunction.

The other one is that the tribal court has no authority to entertain 1983 actions.

That would solve the problem just as well, wouldn’t it?

S. James Anaya:

–That would solve the problem, just like–

Antonin Scalia:

But not your client’s problem.

I understand that.

William H. Rehnquist:

Thank you, Mr. Anaya.

Antonin Scalia:

Ms. McDowell, we’ll hear from you.

Barbara B. McDowell:

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

The tribal court has jurisdiction over Mr. Hicks’ civil damages suit against the state game wardens in their personal capacities.

Sandra Day O’Connor:

Well, how about a 1983 action?

Barbara B. McDowell:

Well, we would say that the federal courts have concurrent jurisdiction over that sort of action, as in El Paso Natural Gas.

We think that there should be an opportunity effectively to remove the case to federal court through an injunction.

Antonin Scalia:

I agree, but does it exist?

Barbara B. McDowell:

To the extent it existed in El Paso, Your Honor, it exists here as well.

Congress has expressed its preference for a federal forum at a defendant’s request when he has been sued on a federal cause of action.

That occurs through the removal statute when the defendant is sued in state court.

Anthony M. Kennedy:

But the Wheeler Act… is that the Act… the Nuclear Power Act… had a specific provision for exclusive jurisdiction.

We don’t have that here.

Barbara B. McDowell:

Exclusive jurisdiction, Your Honor–

Anthony M. Kennedy:

The El Paso case was not a removal case.

Barbara B. McDowell:

–Yes, it was, with respect, Your Honor.

It was a removal case.

It was a case in which there was–

Anthony M. Kennedy:

Excuse me… there was an underlying congressional act which gave exclusive jurisdiction.

Barbara B. McDowell:

–Only if the defendant raised it, Your Honor, the case would be free to proceed in state court for a nuclear tort, or in tribal court, unless the defendant sought a federal forum.

That was the case in El Paso as we understand it, and that would also be the case here.

The cases under 1983 could proceed in tribal court, but if the defendant elects a federal forum, he should be entitled to that at the outset of the case so that the trial of the facts–

Ruth Bader Ginsburg:

Really making up a statute that Congress didn’t pass because that’s what happens… a federal officer is sued in state court.

He can remove it.

Why can he remove it?

Because Congress has said so.

So here Congress has said nothing at all.

Barbara B. McDowell:

–Well, that’s correct, Your Honor.

That was also the case in El Paso, but the court didn’t think that Congress’ silence in that instance reflected any specific intent to leave the case in tribal court if a defendant wanted it in–

Antonin Scalia:

But they don’t have to have any intent to leave it in trial court, you need an intent to get it removed from tribal court.

The extant state of affairs is what it is.

What we’re looking for is some reason to remove it.

Barbara B. McDowell:

–Well, the reason to remove it is because the plaintiff has asserted a federal cause of action, and we would think that Congress would want a defendant sued in tribal court to have the same right as the defendants sued in state court to get a federal forum.

We think that Congress’ failure to provide in Section 1441 for removal from tribal court was inadvertent, it doesn’t reflect a policy choice on the part of Congress that such cases should remain in tribal court.

Simply the fact that–

David H. Souter:

No, I don’t mean to cut you off… I thought maybe you would address this.

El Paso was a stronger case for your position in one respect, at least, because in El Paso, I think, as I recall it, the federal statute preempted all other causes of action so that the federal right was, in effect, was exclusive, because you don’t have that feature here.

So if there’s an injunction in this case on the El Paso model, it in effect would leave the litigation to go forward on non-1983 claims arising, I mean, for example, tribal tort claims.

So the result would sort of be a bifurcation of the litigation and sort of a mess, and you didn’t have that feature in El Paso.

Shouldn’t that bear on the question of whether or not we want to follow the El Paso model here?

Barbara B. McDowell:

–We don’t think that would be the necessary result, Your Honor.

As with removal from state court, any pendent state causes of action follow the federal cause of action.

David H. Souter:

Okay, but I mean this is getting Rube Goldberg.

Now there’s another rule and pendent jurisdictional claims are now being removed by means of a novel use of injunction.

I mean, there’s a character here that we’re making up an awful lot as we go along on your theory.

Barbara B. McDowell:

Well, there is a common law nature to much of this Court’s jurisprudence with respect to Indian law, certainly the cases–

David H. Souter:

But what is the justification, then, for saying to the tribes that they could not proceed in their related tort actions in the tribal courts merely because we think the 1983 action should be enjoined for purposes of quasi-removal.

What is the basis for saying that they can’t receive in their own courts under their own law?

Barbara B. McDowell:

–Well, they certainly can choose to proceed in their own courts.

They’re the masters of their complaints, and they can drop the 1983–

David H. Souter:

No, but what I’m getting at is your notion that all… that these tribal tort law claims would be deemed pendent to the 1983 actions and enjoined with them.

I am saying what is your basis for saying… is it simply a basis of convenience to the defendant?

Barbara B. McDowell:

–Well, that’s typically the treatment of state law claims when we remove to federal court.

David H. Souter:

But we’ve got a statute on it.

We’ve got a statute.

Stephen G. Breyer:

How does it work?

That is, in your view on the tribal claims.

Your view is that the torts… if the tribe… suppose the tribe has a strict liability tort theory and there is no defense of official action, and it says that all the FBI agents, Bivens agents, Department of Interior agents, anybody you want in the federal government, is now going to be strictly liable for their torts, okay?

Now, in your view they could just go do that.

That’s the government’s view.

That’s the federal government’s view.

Barbara B. McDowell:

There would be federal immunity defenses.

Stephen G. Breyer:

But where do they come from?

Barbara B. McDowell:

They come from the federal government’s unique interest in law enforcement on reservations.

Stephen G. Breyer:

So if they’re going to have… and are we now going to have a new sort of federal government thing we’re making up, which… well, then why not have it all in the federal court?

I mean, I’m a little worried about what we’re getting into when we’re making these things up.

That’s not meant to be a criticism… I’m just quite… having a hard time foreseeing where this case is going.

Antonin Scalia:

Why does the federal government have a unique interest in law enforcement?

My goodness… it’s not only not unique, its interest in law enforcement is a good deal less than that of the states.

They do most of the law enforcement in this country.

Barbara B. McDowell:

Not with respect to Indian reservations, Your Honor.

The federal government is the principal law enforcement authority on the reservations.

It is delegated some of that authority–

Antonin Scalia:

Not with respect to state crimes that occur off the reservation.

I mean, I can see the state… can I ask you?

It matters to me… it may not matter to anybody else, but can you resolve the conflict here as to whether state officers are allowed just on the basis of a state warrant to enter a reservation to pursue a criminal from state justice for a crime that occurred off the reservation?

Barbara B. McDowell:

–Not in the circumstances of this case.

Footnote seven of our brief cites some cases on the proposition.

I think the way of looking at this is in the state/state context.

If somebody commits a criminal offense in Nevada, yes, Nevada has the right to prosecute that offense, but if the person goes to California, perhaps even lives in California, if Nevada wants to execute a search warrant against that person’s California home, the Nevada warrant isn’t self-executing.

There is a need to go to a California court to get approval of the search, and we would say that the same model applies in the state/tribe situation.

Stephen G. Breyer:

In that situation, I’m just thinking, aren’t you really on the other side?

Imagine this is only the 1983 action.

What’s the difference between your position and their position?

Their position is that the 1983 action has to be brought in federal court.

Your position is that it has to be brought in federal court as long as the defendant wants to do it.

That seems to me the only practical difference.

Am I right?

Barbara B. McDowell:

As a practical matter, that may well be correct.

Ruth Bader Ginsburg:

Then you have to think that the Ninth Circuit got it all wrong here, because as I take it, you’re saying we let the tribal members sue in tribal court, but the defendant state officer the next day can remove it and there’s nothing that the tribe or the tribal member can do about it.

It’s just kind of we let them park for an hour in the tribal court, and then the federal officer has the control, or the state officer has the control, can get it immediately into a federal court.

Is that your position?

Barbara B. McDowell:

Yes, although the tribal plaintiff would have the opportunity to amend his complaint to assert only tribal causes of action, in which case the case would remain at least initially in tribal court.

Ruth Bader Ginsburg:

What about the officer’s position?

I don’t care whether they say it’s tribal or 1983… I am cloaked with immunity because I was executing a state warrant, and that should be resolved in a state or federal forum, not in a tribal forum.

Barbara B. McDowell:

I would disagree with that.

We believe that the state officers’ personal immunities are matters that should be presented first to the tribal court, and then only subsequently to the federal court.

Ruth Bader Ginsburg:

So that this case could remain in tribal court if they just alleged tribal torts, the officer says I have qualified immunity, I don’t want that resolved in tribal court, but it belongs in tribal court, in your view of this?

Barbara B. McDowell:

In our view, in the ordinary course the state officer defendant should raise the defense first in tribal court and then would have review of the defense under the National Farmers Union approach in federal court after exhaustion.

Ruth Bader Ginsburg:

How far?

It’s only under the tribal code.

Qualified immunity is the defense.

At what point does that get over into a federal court?

Barbara B. McDowell:

May I answer?

William H. Rehnquist:

Yes, shortly.

Barbara B. McDowell:

If there’s not an opportunity before trial for the defense to reach federal court, we would say exhaustion shouldn’t be required.

William H. Rehnquist:

Thank you, Ms. McDowell.

Mr. Howle, you have four minutes remaining.

C. Wayne Howle:

Thank you, You Honor.

One of our major concerns in this case is the non-federal claim in tribal court, because that’s problematic.

The removal of the non-federal claim if there’s no federal claim to which it’s pendent loses really in tribal court.

And even if there’s review of the immunity defense, ultimately in federal court, there’s no basis for federal court jurisdiction to review the judgment.

And so it leaves us exactly where we started, which is at the mercy of the tribal court.

That is a derogation of state sovereignty.

This isn’t the kind of treatment that the federal government would accept for its own officials, and the reference I would make, if I may, in the U.S. brief is footnote twenty-two on page twenty-nine where the whole theory of federal officer immunities is set out.

And in the end they conclude, just as we have, that because of the status of the tribes as dependent sovereigns within the federal system, additional considerations may apply to the exercise of tribal court jurisdiction over federal officers even when sued in their personal capacities.

That’s exactly what we’re asking for in this case as state officers.

We’re not asking for any more than the federal government.

And perhaps the difference here is due to the fact that the U.S. views states and tribes as coordinate sovereigns.

Coordinate sovereigns.

And tribes and states are not coordinate sovereigns, they’re different.

States and tribes are fundamentally different.

C. Wayne Howle:

State immunities have a constitutional dimension, whereas tribes have been implicitly divested of their sovereignty to the extent that it’s inconsistent with their status.

And that’s our ultimate position in the case and explains the position we take.

Thank you, Your Honor.

Thank you, Mr. Howle.

C. Wayne Howle:

Thank you, Your Honor.

William H. Rehnquist:

The case is submitted.