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Co-governance will improve justice in Indian country

Many tribal members, tribal leaders, and activists are strong supporters of tribal sovereignty. Tribal sovereignty is a way to conceptualize, establish, and protect the powers of self-government in tribal communities. Tribal governments existed from time immemorial and predate the formation of the United States, or any of the present-day nation-states in the world. Tribal communities have inherent rights to self-government, which were not voluntarily surrendered to the United States or to nation-states in other parts of the world.

In times before nation-states, tribal nations formed agreements and treaties that created friendly and cooperative agreements among nations. When tribal peoples made treaties with colonies they were continuing the tradition of peaceful, cooperative, and mutually respectful relations between different cultures and governments.

Tribal governments existed from time immemorial and predate the formation of the United States, or any of the present-day nation-states in the world.

The worldview of indigenous peoples includes relations with plants, animals, and cosmic powers of the universe, and teaches that people must be respectful of all powers and beings, both human and non-human. Traditional worldviews do not see tribal governments or nations of humans as the central force or beings of the universe, but as beings who share the universe with other powers and nations of human and non-human beings.

Indigenous conceptions of inherent self-governing powers do not place any tribal community above all others, but places human nations within a context of many human and non-human powers. There is much contemporary talk of absolute forms of tribal sovereignty, but tribal governments were created to engage in respectful relations within a universe of human and non-human powers and forces.

In the United States, government is divided among federal, state, county, city, and American Indian tribes. Each level of government has limited sovereign powers and none is absolute in all matters. The way the United States government includes tribal governments is to allocate limited powers to them based on treaties and congressional acts. It is not unusual that states and the federal government or other governments contend issues of jurisdiction as times change and new interpretations of jurisdiction arise. Tribal governments often contend jurisdictional, land and political issues with states, government entities, and American interest groups.

Tribal governments share concurrent policing and court powers with the United States. Courts have interpreted that congressional acts such as Public Law 83-280 and the Major Crimes Act did not abolish the inherent powers of tribal governments to administer justice within their own communities. The management of justice is one of the major activities of any government. Where state-county or BIA-federal courts and/or police administer justice in Indian communities, the tribal government is greatly impaired and constrained from delivering the form and kind of justice that many community members may want. In such situations, tribal governments are excluded from management of justice.

Indigenous conceptions of inherent self-governing powers do not place any tribal community above all others, but places human nations within a context of many human and non-human powers.

Although tribal governments have concurrent government authority over justice relations, federal and county-state governments manage a large portion of justice in Indian country. The present-day tribal government movement toward establishing tribal courts and tribal police departments is an effort to restore tribal government powers over tribal justice institutions.

Federal and state-county administered police departments and courts, however, exclude tribal governments and communities from participating in the administration and decision-making within reservation justice systems. The exclusion of tribal government and community input and decision-making greatly inhibits tribal community interest in participation, creates inefficiencies, and results in great dissatisfaction among tribal community members.

Concurrent jurisdiction over justice should mean that tribal, county-state, and federal policing and court agencies share administration and responsibility for justice on reservations. Concurrent jurisdiction requires that tribal communities and government share responsibility, authority, management, and decision-making with federal and county-state justice agencies.

Co-governance, the fair and equal sharing of political decision making powers, will greatly improve the cultural sensitivity of justice service delivery, program effectiveness, fairness in policing and court decisions, cooperation, and satisfaction of justice management within tribal communities.