Lack of Tribal authority but plenty of injustice: A look at Nevada v. Hicks

I recently started researching Indian Tribal Law in one of my classes and it seems like the Court and Congress (who has plenary power over them) keeps cutting it down to minimal power and jurisdiction. In the case of Nevada v. Hicks, which was decided in the summer of 2001, the Court deprives Indian tribes of essential power over their own land. It was a 9-0 decision in favor of Nevada, with the majority opinion delivered by Justice Scalia. I'll provide a little background because the case is dense and goes off on a lot of tangents. Floyd Hicks was a member of a western Nevada Indian Tribe. He was suspected of killing a protected species of big-head sheep off the reservation. The law against the poaching of sheep was a Nevada state law, and the alleged crime was committed OFF the reservation.
You with me?
Search warrants were given to state game wardens who entered the tribe and went to tribal authoritys to further authenticate their search warrant (a common practice between state and tribal authorities). A tribal member escorted the wardens to the property in order to search for the sheep-heads.
Sidenote: the search warrant had limitations, so therefore the game wardens were forbidden from certain parts of the property.
Following the searching of his property, Mr. Hicks sued the state officials, both in their official capacity and their individual capacity, as well as the state of Nevada. He claimed the wardens went beyonde the scope of the warrant and deprived him of due process and other constitutional rights, known commonly as a Section 1983 violation.
The case went to tribal court (the court of the Indian tribe), district court (state), and the 9th Circuit Court of Appeals (lower federal). With the exception of the state court, the district and lower federal courts affirmed the claims of Mr. Hicks. After the decision was remanded by the 9th circuit, he appealed to the United States Supreme Court.
You still with me? Because it's about to get crazy.
The USSC decided that state officials were not subject to tribal jurisdiction (meaning that the game wardens, or any other state official or officer, could not be tried in the tribal court).
Sidenote: by this point Hicks dropped the charges against the state and the game wardens in their OFFICIAL capacity. At this point, he was only suing them as individuals.
The court took it one step further and said that state officials were not even subject to tribal legislative authority (laws), and did not even have to seek tribal permission to serve warrants for off-reservation crimes, going beyond their scope of power in my opinion.
Since the wardens were being sued in their individual capacities, the court's decision applies now to all non-tribal members, regardless of their status with the state.
This is where my paper begins!

Response:

In the United States Supreme Court case Nevada v. Hicks, the Court held that tribal courts do not have the jurisdiction to hear cases against state game wardens. The Court also stated that tribes lack legislative authority in general over state officials. However, the decision reached did not answer the questions asked by the appellee. Floyd Hicks was a member of the Fallon Paiute-Shoshone Tribes of western Nevada. Search warrants were granted to state game wardens to enter onto the tribal land in order to investigate claims of illegal sheep heads that were allegedly in the possession of Mr. Hicks. After entering and searching Hicks’ property, the state dropped the claims due to insufficient evidence. In district and lower federal court, the issue at hand shifted from Mr. Hicks’ claims of constitutional violation of his rights to an issue of jurisdictional matters. Hicks claimed that state officials, at first in both their official and individual capacities, deprived him of due process and lawful search and seizure. Hicks also claimed that the state officials overreached the boundaries of the search warrant. Ultimately, I believe that the Supreme Court deprived Mr. Hicks of justice and legal remedy, as well as went beyond the scope of their decision making power and the issues of the case.

                Firstly, the Court hardly addressed the issue that was initially raised under Section 1983. Hicks sued the state officials because he felt the game wardens had committed a wrongdoing against him. More specifically, Hicks believed the wardens had illegally entered portions of his property, as well as deprived him of proper due process and procedure. Upon reaching the Supreme Court, these claims appeared to be forgotten about. The decision the Court reached was centered around whether or not state officials were subject to tribal jurisdiction, something Hicks didn’t even want to state an opinion on at the time of the oral arguments. During the oral arguments, the justices seem sincerely confused about what issues they are actually deciding on. Furthermore, the Attorney General for the state of Nevada, Mr. Howle, engaged in an argument that was not pertinent to this case. His claims of extension of state immunity is invalid due to the fact that at this point the Court is considering the officials in their individual capacity. The Court never got around to answering the claims of violation under Section 1983 because they were confused on what they were actually supposed to answer. Therefore, the Court deprived Hicks of remedy and justice concerning his initial questions that started the case.

                Secondly, after deciding that state officials were not subject to tribal jurisdiction, the Court went one step further in saying that state officials were not subject to the legislative authority of the tribe at all. This deduction overreaches the scope of the case and ultimately the issues raised by Hicks. Traditionally, the Supreme Court does not have original jurisdiction on issues such as these. The issues have to fully develop and “ripen” in lower courts before the Supreme Court can decide on the matter. The issue of jurisdiction developed in the state and lower federal court, but was not really officially decided on until it arrived in Supreme Court. Therefore, by stating that state officials (in their individual capacity at this point) are not subject to tribal legislative authority, the Court went beyond their decision making powers and answered a question that wasn’t originally there when the case started. The decision reached by the Court also opens a lot of harmful doors for members of Indian tribes residing on tribal land. Since the cases was decided under the notion that the state officials were acting in their individual capacity, the decision is far-reaching in its applicability. For example, if a drunk, non-tribe member assaults a tribe member on tribal land, they are not subject to the tribal authorities and the tribe member cannot get justice under their own laws and jurisdiction. The potential problems that could arise under this deduction are limitless, and outweigh the interest of the state.

                In conclusion, Floyd Hicks received an injustice on behalf of the Court. Although the Court seemed genuinely confused and inquisitive, they did not answer the questions presented to them by Mr. Hicks. Hicks never claimed that state officials were not subject to tribal jurisdiction, as that would nullify his case. He was simply trying to receive a remedy for wrongdoings committed against him. The Court therefore overreached their scope of power as justices and decided on a matter that was not there, nor was the initial point of the case.

Submitted for LAW389, do not use or steal

The Dangers of Freedom of Speech

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment to the United States Constitution. One of the rights our Founders, after seeing the tyranny of Great Britian and France, wanted us to have at all costs. No questions asked.
I am going to make this VERY clear before jumping into this analysis due to the sensitivity attatched to the issue. I am a Democrat. I love free speech, protests, hippies, Obama, and small business. With that being said, if the Founders were to be here with us today, in 2012, I think they would pull their hair out strand by strand.
We are a country founded on the basis of: life, liberty, and the pursuit of happiness. Not hatred or intolerance. I am going to sit slavery and women's issues aside for this piece only because they are historical in content and timing, not necessarily moral. As an American, you can thank the United States Supreme Court for your freedoms, especially those of speech. Without the high court's opinions, the Constitution would be politically interpreted, and we do not want the legislature doing this. Normally I am pro Supreme Court, however on the issue of Freedom of Speech, I fall off the bandwagon. Time and time again the Court has regulated what we can, or cannot do. Texas v Johnson said it was constitutionally valid to burn an American flag, in public, due to the fact that it constitutes as symbolic speech. Then they said that you can't burn your draft card in time of war, or display a banner reading "Bong Hits for Jesus" when on a public school's clock. You can publish hate speech and harmful opinions, as long as you get both sides. However when you bring libel and slander into the mix your case in court will not stand. You can see that even the Court struggles with interpretation of what we call "free speech". The problem does not fall into the sphere of our law makers, or law interpreters, the problem lies in ourselves.
This is where my analysis begins.
Forget the law. Forget legality. Forget the Constitution. Forget our Framers.
Allow your mind to be a clean slate for a while. This is extremely difficult for me since I study this and normally I'm doing the opposite, which is searching for pieces of law and legislation to back my argument up. But for this argument, I don't think I need it.

Imagine you're gay. You're walking down the street. Someone turns to you and shouts out FAG. You have two options. Fight, which will eventually get you in trouble, or walk away. John Stuart Mill, and our Supreme Court (two people/institutions I often look to) would argue that no "harm to others" was done, and the person who called you a fag was just exercising their freedom of speech.

Imagine you're a soldier. You just got home from 2 years in Afghanistan. You walk off the plane and the first thing you see is a man burning an American flag and calling you a socialist and a war monger. All your time saluting the flag is spent watching it burn. Oh well, freedom of speech, no harm to others.

Imagine you're black. You are vacation in Texas, and while walking down the street someone calls you a racist coon who should be picking cotton. OH WELL. FREEDOM OF SPEECH. no harm done.

Now a lot of people who take the opposite side of the argument would say that the person receiving the verbal abuse chose to accept and process it, and the harm that was emotionally done is on them. However, this person did not choose to be the victim of hate speech, or did not choose to be offended by symbolic speech. It was inflicted upon them. Although no physical harm was done, irreversible emotional damage will persist in this individual for an indefinite amount of time. This is a trend currently happening in America today. Kids and adults alike are killing themselves and others all because of WORDS. Letters put together in patterns that are used to create phrases have now become weapons. If it's one thing our Founder's wanted, it was peace and unity. Not fragmentation and hate. The First Amendment was intentionally created to protect United States citizens from governmental oppression. It was a time of Monarchs and Dictators who would do everything in their power to silence their people. Now the first amendment is being abused to incite rage and hate in others.

Let's get real. Everyone knows that you have the right to express your opinion on issues. Abortion, gay marriage, war, economic choices, and the status of our government....RESPECTFULLY. Instead of calling someone a "child hating baby killer", or a "fag who is damned in the eyes of God", why not make an educated, mediated argument for your side? We use opinions as as excuse to spill our hatred onto others.

The bottome line: We are Americans. We value many freedoms, including speech. Everyone knows this. But we often use our rights in the wrong ways, because we know they will always be there. We have the oldest constitution and government in the WORLD, yet we are one of the youngest nations. At some point, revision is necessary. Not necessarily ink and paper revisions, but personal revisions and reflections. That's where the problem with Freedom of Speech lies. Sure, we are all Americans, and we all deserve this right, hell we've spent years fighting for it. But there is a line between freedom of speech and exercise of hate. Of course you can burn a flag, or call someone a fag, or even lead a pro-Nazi march. The ultimate question is, why you would want to. Why would you want to deeply offend someone just because they behave or idealize differently than yourself? That's not how you win. You win by making an educated, formal opinion about the issues you care about. You research, you participate peacefully and for the BETTERING of a people. You believe in what you fight for. You are not supposed to tear down the other side emotionally, and make them question their being. We are adults. We are a sophisticated Nation, yet we are acting like a bunch of elementary aged school girls. Everyone uses their "freedom of speech" as a crutch to breed hate. Please exercise wisely. Words are not just words anymore, and they do hurt.