Ruling will be far-reaching, Indian-rights groups say Gambling decision is expected to limit recourse in other areas

March 28, 1996|By Sandy Banisky | Sandy Banisky,SUN NATIONAL STAFF

The Native American Rights Fund called it "a huge blow." A spokesman for the Indian Law Resource Center described it as "a sad drift in the law." And the National Congress of American Indians said in a statement that "Indian Country will not allow this to pass without a fight."

Yesterday's Supreme Court ruling that states cannot be sued against their will in federal court to settle Indian gambling disputes will have implications beyond casinos, Indian-rights groups agreed.

The Indian gambling industry, which involves 126 tribes in 24 states, creates revenues of $4 billion annually, according to the National Indian Gaming Association.

In reinforcing the states' rights in gambling cases, Indian groups said, the court also may be limiting the tribes' legal recourse in many other kinds of disagreements with states. And the advocates say it leaves Indian groups, which historically have turned to federal courts for help, with diminished legal rights.

"Perhaps the most disturbing feature of this from the Indian-rights point of view is the continuing drift of the Supreme Court in removing federal protections from Indian tribes and nations," said Steven Tullberg, director of the Washington office of the Indian Law Resource Center.

"In a ruling at the turn of the century, the Supreme Court itself said the states are often the tribes' worst enemies," Mr. Tullberg said.

But yesterday, the court said that a federal law allowing states to be sued in Indian gambling disputes was unconstitutional under the 11th Amendment to the Constitution.

That amendment is rooted in the legal doctrine of "sovereign immunity," which holds that a government cannot be sued without its consent.

Keith Harper, a lawyer with the Native American Rights Fund, said the ruling disrupts a delicate legal balance in giving much more power to the states in any legal fight with Indian nations.

"It throws everything out of balance," Mr. Harper said, because courts have upheld Congress' right to limit Indian tribes' immunity against lawsuits. "It limits the relief that tribes can get from litigation."

"Tribes are recognized federally as sovereign authorities," Mr. Tullberg said. "But the tribes' sovereignty, according to the Supreme Court, is a sovereignty that can be stripped away. Meanwhile, the states are having their sovereignty exalted."

The result, he said, is that Indian groups -- and, presumably, other groups that challenge the states on certain issues -- will be left without a legal forum.

"This case just opens up a can of worms that ultimately is going to haunt the states," the said. "The states want to have an orderly way to negotiate disputes," be they over copyrights, or antitrust issues or environmental statutes. "If they're going to sit back like the queen of England and say, 'You can't sue me. I'm the sovereign,' they're inviting more disruption, more disorder in society.

"It's in the interest of everyone in society not to shut the court door but to open it wider so that people can expect justice," Mr. Tullberg said.

Pub Date: 3/28/96

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