Supreme Court Colloquy on Indian Tribes as Intervenors in Original Jurisdiction Cases

Today, the Supreme Court held that two non-sovereign entities may intervene in an original jurisdiction case (South Carolina v. North Carolina). Of note, it appears that for the first time, the Court allowed a non-sovereign entity to intervene in an original jurisdiction case. The majority’s reference to Indian tribes is trouble, especially in light of the dissent’s response.

Here is the majority:

Over the “strong objections” of three States, for example, the Court allowed Indian tribes to intervene in a sovereign dispute concerning the equitable apportionment of the Colorado River. Arizona v. Cali-fornia, 460 U. S., at 613. The Court did so notwithstanding the Tribes’ simultaneous representation by the United States. Id., at 608–609, 612.

Seems relatively innocuous, until one reads the dissent:

The result is literally unprecedented: Even thoughequitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests.

And later:

Take Arizona v. California, 460 U. S. 605 (1983). There we allowed several Indian Tribes to intervene in a water dispute. Id., at 615. As the Court in that case made clear, however, the Indian Tribes were allowed to intervene because they were sovereign entities. Ibid. The Court distinguished New Jersey v. New York on that veryground. See 460 U. S., at 615, n. 5.

It seems the majority implicitly characterized Indian tribes (and the City of Port Arthur, Texas) as a non-sovereign in order to stress the non-importance of today’s decision. One shouldn’t read too much into this, of course. But still…. Uggh.

This entry was posted in Author: Matthew L.M. Fletcher, Research, Supreme Court and tagged , , . Bookmark the permalink.

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