Nevada, et al. v. Hicks, Floyd, et al.

Nevada, et al. v. Hicks, Floyd, et al.

By: Ellen Gedalius & Mike Cummings, Medill News ServiceQuestions presented

Does either the sovereign immunity of the State of Nevada, or the qualified immunity of its officers, preclude tribal court jurisdiction in actions stating tort and constitutional claims against individually-named state officials for official actions taken with the express permission of a tribal judge?

Brief

Floyd Hicks never thought much about big horn sheep until the pheasant manager of his Indian tribe couldnt fit two trophy heads in his trailer.

The manager, who had come across the heads while on a hunting expedition, planned to throw them away. But first he offered them to Hicks, who said he could use them to practice roping.

Hicks, who is a member of the Fallon Paiute-Shoshone tribe in Nevada and lives on the Indian reservation, displayed the trophies in his bedroom.

But, Hicks said, before he had a chance to use the heads for roping practice, someone told a Nevada state game warden that Hicks had a big horn sheep of the California subspecies. If that were true, Hicks could be charged with a misdemeanor under state law.

Twice within a 10-month period, in 1990 and 1991, game wardens secured search warrants from the New River Justice Court. The Fallon Tribal Court approved the warrants — a necessary step because the New River county court does not have jurisdiction over the reservation — and stipulated that inspection be limited to the outside of Hicks home and his vehicle. Yet Hicks maintains that the wardens took one trophy from his bedroom. He also says that when one of the trophies was returned, it was damaged.

The trophies were returned because they were of the Rocky Mountain subspecies, not the California variety. No charges were filed against Hicks.

""They just came in here and shoved it down my throat,"" said Hicks, a farmer and former tribal police officer. ""They just bullied their way in.""

So Hicks accused the three state wardens and the director of the Nevada Department of Wildlife of damaging his property and improperly executing the warrant. Hicks filed suit in Fallon Tribal Court against the four in their individual and official capacities.

""We should have the authority to take people through our courts if they disobey laws on our reservation,"" Hicks said.

But the state argued that state officials could not be sued in tribal court in either their official or individual capacities because states rights would be jeopardized if tribal courts could consider actions of state officials.

The Fallon Tribal Court and the Intertribal Appellate Court ruled that the lower tribal court had jurisdiction to hear the case.

The state then turned to the federal court system, filing suit in the U.S. District Court for the District of Nevada. While the case was pending, Hicks dropped his suit against the wardens in their official capacities. Still, the district court ruled in 1996 that the wardens could be sued in their individual capacities in tribal court, finding that the U.S. Supreme Court ""has consistently guarded the authority of Indian governments over their reservationsÉif this power is to be taken away from them, it is for Congress to do it.""

In considering the general proposition in the 1981 Supreme Court case of Montana v. U.S. that Indian tribes do not have sovereignty over non-Indians on non-Indian owned land within a reservation, the district court concluded that the proposition did not apply because Hicks' allotment was on Indian-owned land.

A divided 9th Circuit Court of Appeals panel affirmed in 1999. Writing for the majority, Judge Betty B. Fletcher said: ""the Tribe clearly had the powerÉto regulate the behavior of state officials present on its land. There was no general cessation of jurisdiction by the Tribe; instead there was a controlled, limited permission for state officials to come onto tribal land and comport themselves. Disputes regarding the officials behaviorÉare within the jurisdiction of the Tribe.""

Dissenting, Judge Pamela Ann Rymer wrote that when the tribal court approved the search warrants it, in effect, ""aligned Hicks property, albeit temporarily, with the state of Nevada.""

Nevada Senior Deputy Attorney General C. Wayne Howle wrote in the state's petition for certiorari to the U.S. Supreme Court that the 9th Circuits holding is in conflict with those of the 8th Circuit in A-1 Contractors v. Strate and 10th Circuit in Atkinson Trading Co. v. Shirley.

""In their nascent form, tribal courts served as a shield for tribes against outside influences,"" Howle also wrote. ""The shield has, however, been gradually transformed into a sword.""

""The United States Supreme Court has not always been very favorable to Indian tribal sovereignty,"" said Melody McCoy, who represents the tribe. ""They have been chipping away at tribal sovereignty. I hope this is not one of those cases.""

On Oct. 10, 2000, the U.S. Supreme Court granted certiorari in the case.

On June 25, 2001, the Court chipped away, holding unanimously for the state of Nevada that tribal courts lack jurisdiction over the conduct of state wardens executing a search warrant on a reservation while investigating an off-reservation crime.

Applying precedent established in Montana v. U. S., Justice Antonin Scalia wrote in the lead opinion, ""Where nonmembers are concerned, the Ôexercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.""

Scalia concluded that it doesnt matter that the wardens alleged misdeeds occurred on Indian-owned land. ""The ownership status of landÉis only one factor to consider in determining whether regulation of the activities of nonmembers is Ônecessary to protect the tribal self-government or to control internal relations,"" he wrote.

""Tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations,"" Scalia continued. As a result, the tribal courts have no jurisdiction.

Though the holding was unanimous, Justices David Souter, Ruth Bader Ginsburg, John Paul Stevens and Sandra Day OConnor filed concurring opinions, with OConnors containing a strong critique of Scalias reasoning.

In acknowledging that the Court is correct to apply the Montana analysis, O Connor wrote that she does not feel the decision reflects a proper application of that analysis.

In her view the Courts decision is too sweeping, and doesnt properly address the allegation that the misdeeds occurred on tribe-owned land and were carried out by state officials.

She is concerned that the decision grants the wardens too much immunity. ""The court holds that the state officials may not be held liable in Tribal Court for these actions, but never explains where these, or more serious allegations involving breach of authority, would fall within its new rule of state official immunity,"" she wrote. ""Our case law does not support a broad per se rule prohibiting tribal jurisdiction over nonmembers on tribal land whenever the nonmembers are state officials.""

Mitchell Wright, who represented the Fallon Paiute-Shoshone Tribes in the matter, said the Courts ruling demonstrates an inherent disrespect for tribal sovereignty.

""Any time you have one entity defining the sovereignty of another, it is problematic,"" he said.

Paul Taggart, deputy attorney general for Nevada, said the decision was important because it limits the jurisdiction of the tribal courts.

""If this case had gone the other way, then it would have subjected nonmembers to the will of the tribal courts,"" he said.

Taggart said this would be a problem because nonmembers in tribal court would lose their right to federal review, which they have in state courts. And this situation would make it more difficult for state officials, such as game wardens, to enforce state laws on Indian reservations.