In Idaho Tribal Case, High Court Revisits Scope of States' Rights

In an unusual court case, an Idaho Indian tribe is attempting to reclaim aboriginal land under a lake and two rivers in a remote section of the American West.

In one sense, the fight between the Couer d'Alene Tribe and the State of Idaho is a simple property dispute. But in a larger sense, the case will determine whether a tribe has the right to sue state officials. Thus it will help clarify where the US Supreme Court stands on the balance of power between the states and the federal government - an important issue before the court this term.

One of the key cases last term, Seminole Tribe v. Florida, also took up an Indian claim - with the court, in a strongly contested 5-to-4 decision, ruling that states are protected from suits in federal court.

The Idaho dispute is one of two difficult cases the high court will take up Oct. 16 that may set legal precedent. The other deals with protests around abortion clinics.

In this case, the court must weigh free-speech restrictions - in particular a 15-foot protective zone around those entering and leaving clinics in Buffalo and Rochester, N.Y. - against the right of clinic staff and patients to go about their business free of threats and harassment.

Abortion-rights supporters want the Supreme Court to reaffirm the right of lower-court judges to order injunctions limiting the behavior of anti-abortion groups. Abortion protesters want the court to severely limit, if not remove, the right of judges to make such rules, which they say are unconstitutional under the First Amendment.

The case, Schecnck v. Pro-Choice Network, is being closely watched not only by those involved in the abortion debate, but also by labor and civil liberties groups concerned about new curbs on political expression.

The abortion clinic case is expected to refine a 1994 Supreme Court ruling, Madsen v. Women's Health Center, which created a set of general rules governing where and how anti-abortion protesters could confront patients and staff outside a clinic. Madsen stated that lower-court judges should "burden no more speech than necessary" in creating injunctions.

Hence, lower courts across the country have interpreted Madsen in different ways - creating an enormous range of differently shaped buffer zones and "rules of engagement" between protesters and individuals entering clinics. Judges often resemble "United Nations peacekeepers - wearing black robes rather than blue helmets," notes Thomas Baker of Texas Tech Law School, "deployed to maintain order while appearing neutral and forbidden to choose sides ... between free speech and abortion rights."

The current case arose in 1990 when abortion-rights groups in western New York filed suit against 50 anti-abortion protesters for trespassing on clinic grounds.

Whether the Supreme Court can simplify its Madsen ruling by creating greater free-speech protections as well as civil rights protections is the difficult test in Schenck.

In the Idaho Indian dispute, the legal issue centers on something called Ex parte Young. That precedent allows a constitutional challenge to a state by an individual or group - in this case the Couer d'Alene Tribe. (Under the 11th Amendment, the federal government itself may not prosecute a state.)

The State of Idaho wants the Supreme Court to create a new exemption forbidding Ex parte Young challenges to a state or its officials if the dispute is over property, a long-cherished states' rights claim. Some constitutional scholars warn that such a ruling would create a "slippery slope" leading to a range of new powers blocking federal claims on states.

In recent years, the court's conservatives, particularly Chief Justice William Rehnquist, have been championing states' rights - giving local government more autonomy.

The tribe says an executive order by President Ulysses Grant in 1873 marking tribal lands trumps Idaho's claim. The tribe, written about by the Lewis and Clark expedition of 1804, reached its first settlement with the US government in 1858 after the Steptoe Wars with white settlers. After President Grant's order in 1873, Congress ratified an agreement in 1891. But when valuable minerals were found, Washington and Idaho negotiated a smaller reservation - reducing tribal lands from 335,000 acres to 58,000 acres in 1906. Later, in 1946, the tribe received $4.5 million for Congress's breach of "fair and honorable dealings."

Agreeing in part with the tribe's current claim, the Clinton administration recently filed a brief offering the tribe another settlement, though one smaller than it is seeking.

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