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Sanctioning a Tyranny: the Diminishment of Ex Parte Young, Expansion of Hans Immunity, and Denial of Indian Rights in Coeur D'alene Tribe

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Sanctioning a Tyranny: the Diminishment of Ex Parte Young, Expansion of Hans Immunity, and Denial of Indian Rights in Coeur D'alene Tribe Fall 1999 Sanctioning a Tyranny: The Diminishment of Ex parte Young, Expansion of Hans Immunity, and Denial of Indian Rights in Coeur d'Alene Tribe John P. LaVelle University of New Mexico - School of Law Follow this and additional works at: https://digitalrepository.unm.edu/law_facultyscholarship Part of the Indian and Aboriginal Law Commons Recommended Citation John P. LaVelle, Sanctioning a Tyranny: The Diminishment of Ex parte Young, Expansion of Hans Immunity, and Denial of Indian Rights in Coeur d'Alene Tribe, 31 787 (1999). Available at: https://digitalrepository.unm.edu/law_facultyscholarship/570 This Article is brought to you for free and open access by the UNM School of Law at UNM Digital Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. SANCTIONING A TYRANNY: The Diminishment of Ex parte Young, Expansion of Hans Immunity, and Denial of Indian Rights in Coeur d'Alene Tribe John P. LaVelle* I. INTRODUCTION ..................................................................... 789 II. THE COEUR D 'ALENE TRIBE LITIGATION IN THE LOWER FEDERAL C O UR TS ............................................................................. 795 A. The Birth and Sudden Death of a Tribe's Requestfor Justice ....... 795 B. The District Court Decision................................................ 797 1. Shielding in HanslBlatchford Immunity States' Violations of Tribes' Federally Protected Rights ..................................... 797 2. Rendering Irrebuttable Montana's Erroneous Rebuttable Presum ption ................................................................. 807 C. The Ninth Circuit Decision: Salvaging Federal Rights from the Wreckage of the Supremacy Clause ...................................... 824 III. THE SUPREME COURT'S COEUR D 'ALENE TRIBE DECISION .............. 832 A. Closing the Federal Courts to Indian Tribes Seeking Justice Against State Officials Who Illegally Appropriate On-Reservation Subm erged Lands ............................................................ 833 1. The Charge of the Straw Brigade ........................................ 833 2. Condemning Tribes' Young Suits for Failing an "Ordinariness" T est ........................................................................... 8 3 7 3. Submerging the "Middle Ground" of Treasure Salvors ............. 840 * Assistant Professor of Law, University of South Dakota School of Law, Vermillion, South Dakota. J.D., 1990, School of Law (Boalt Hall), University of California at Berkeley; A.B., 1987, Harvard University. Member of the Santee Sioux Tribe of Nebraska. For helpful comments on portions of previous drafts of this Article, I would like to thank Professor Melissa Koehn of the University of Tulsa College of Law, Professor Robert Laurence of the University of Arkansas School of Law, and several of my colleagues at the University of South Dakota School of Law: Dean Barry Vickrey, Professor Chris Hutton, Professor Frank Pommersheim, and 1997-98 Indian Law Fellow Ange Aunko Hamilton (Kiowa). I also would like to thank Sherri Eveleth, J.D., 1998, University of South Dakota, for assisting with research for this Article. ARIZONA STATE L4 W JOURNAL [Ariz. St. L.J. 4. The Ghost of Montana Rides Again ................... ............. 852 5. Retracting the Lifeline of Lee and Tindal .............................. 855 6. The New Rule for Discriminating Against Young Suits Brought by Indian Tribes ............................................................ 861 B. Toward the Dismantling of Ex parte Young ............................ 867 1. Prohibiting Young When a State Forum is Available ................ 867 2. Eviscerating Young by Equating Violations of Federal Law with Common Law Torts ....................................................... 878 3. Young as an Application of the Doctrine of Comity ................. 891 4. Young as a Vacant Exception to the Unavailability of Young ...... 893 5. Young as an Affront to the Primacy of State Courts in Interpreting Federal Law ................................................. 896 6. Young as an Unwanted Impediment to the Saturation of State Law in Indian C ountry ............................................................. 901 7. Reducing Young to a Discretionary Balancing Test .................. 903 8. Young as a Type of Bivens Remedy ..................................... 914 9. D6jA Vu: Justice O'Connor's Role in Closing the Doors of L iberty ....................................................................... 925 IV . C ONCLUSION ..................................................................... 940 31:787] SANCTIONING A TYRANNY The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. -Chief Justice John Marshall' They made many promises to us, but they only kept one: they promised to take our land, and they took it. 2 -Oglala Lakota Chief Red Cloud I. INTRODUCTION In recent years, the United States Supreme Court has issued opinions in federal Indian law cases signaling a dramatic retreat from the Court's historic role as protector of the rights of Indian Tribes under the Constitution, laws and treaties of the United States and as a function of inherent tribal sovereignty. 3 Prior to 1986, when President Reagan appointed then- Associate Justice William H. Rehnquist to the office of Chief Justice of the United States, Indian Tribes' interests prevailed in most of the Supreme Court's modem Indian law decisions. 4 Since 1986, and inversely 1. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). 2. Oglala Lakota Chief Red Cloud, quoted in REX WEYLER, BLOOD OF THE LAND 65 (1982). 3. See generally David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573 (1996). Professor Getches writes: [Tihe courts have generally served as the conscience of federal Indian law, protecting tribal powers and rights at least against state action, unless and until Congress clearly states a contrary intention. The Supreme Court has recently begun to depart from this traditional standard, abandoning entrenched principles of Indian law in favor of an approach that bends tribal sovereignty to fit the Court's perceptions of non-Indian interests. Id. at 1573-74. 4. See Robert N. Clinton, The Dormant Indian Commerce Clause, 27 CONN. L. REV. 1055, 1056-57 (1995). Professor Clinton points out that "[tihe overall success rate of tribal claims in cases decided with opinions by the Supreme Court since 1959 is close to fifty percent, with those asserting tribal claims winning approximately 51 out of the 103 cases decided since 1959." Id. Moreover, as Professor Clinton notes further, "for most five year periods between 1959 and 1986, tribal success rates generally averaged over sixty percent, in some cases reaching nearly seventy percent." Id. 790 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. proportional to the rise of "States' rights" activism on the high court,5 the percentage of Supreme Court decisions favorable to Tribes' interests in Indian law cases has fallen steadily, year after year.6 Today, this striking trend of anti-tribal adjudication by the Rehnquist Court has engendered great consternation and dismay among tribal leaders and Indian law scholars. These observers discern in the Court's disregard of longstanding legal principles protective of Tribes' most elemental rights a return to federal policy themes dominant during the devastating "termination" era of the 1950s, when Congress embarked on a nefarious mission to deprive Indian Tribes of all federal protection by unilaterally declaring an end to the federal government's historic guardianship responsibilities toward Indian Tribes and Indian people.7 Historically, of 5. Professor Akhil Reed Amar provides provocative commentary on the modem Supreme Court's elaboration of its "States' rights" ideology under the rubric of "Our Federalism": Victims of government-sponsored lawlessness have come to dread the word 'federalism.' Whether emblazoned on the simple banner of 'Our Federalism' or invoked in some grander phrase, the word is now regularly deployed to thwart full remedies for violations of constitutional rights.... Today's Court seems to have lost sight of the People-and so it has transmogrified doctrines of federalism and sovereignty into their very antitheses. Sovereign immunity allows "sentinels" hired to uphold the law to become gunmen who are a law unto themselves. And "Our Federalism" perverts a structure designed to assure full remedies for constitutional wrongs into a system that regularly frustrates the remedial imperative. Whenever the rhetoric of "states' rights" is deployed to defend states' wrongs, our servants have become our masters; our rescuers, our captors. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1425, 1520 (1987) (footnotes omitted); see also Erwin Chemerinsky, The Values of Federalism, 47 FLA. L. REV. 499, 540 (1995) ("During the 1950s and 1960s, objections to federal civil rights efforts were phrased primarily in terms of federalism. Rather than defend discrimination and government-mandated segregation, opponents of civil rights reforms cloaked their arguments in the rhetoric of states' rights. Efforts to use federalism
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