HARTFORD, Conn. – State legislators had the rare opportunity of hearing two of Indian country’s most esteemed law experts and ardent supporters of tribal sovereignty on a panel with the state attorney general, who has participated in crucial lawsuits opposing tribal sovereignty.
John Echohawk, Pawnee, the executive director of the Native American Rights Fund, and Frank Ducheneaux, Cheyenne River Sioux, former legal counsel to the House Committee on Interior and Insular Affairs, sat on a panel on tribal sovereignty with Attorney General Richard Blumenthal before the state legislature May 18.
Joining them was University of Connecticut law professor Bethany Berger, who is the current Oneida Indian Nation Visiting Professor of Law at Harvard University Law School. (The chair is endowed by the Oneida Indian Nation, which publishes Indian Country Today.) Berger’s expertise is in the areas of federal Indian tribal law, property and legal history.
Around a half dozen legislators attended the informational forum, which lasted two hours. Around 30 people were in the audience, including Mashantucket and Mohegan tribal members and the tribes’ attorneys, other Indian law attorneys and members of local Indian communities.
Blumenthal intervened in San Manuel v. the National Labor Relations Board, in which the U.S. Court of Appeals for the District of Columbia Circuit Court disregarded 75 years of tribal sovereignty and ruled that federal labor laws apply on sovereign Indian land.
Blumenthal was also a party to Carcieri v. Salazar, a notorious case in which the U.S. Supreme Court ruled in February that the Interior secretary does not have the authority to take land into trust for tribes federally recognized after 1934. He and 16 other attorneys general wrote to key Senate and congressional committees recently, urging them to move slowly, or not at all, on “fixing” Carcieri and asking to be included in any discussions on land into trust.
The panel was convened by the legislature’s Government Administration and Elections Committee as an informational forum and took place at the legislative office building. The forum followed the defeat a week earlier of a proposed bill to ban smoking entirely at Foxwoods Resort Casino and Mohegan Sun, owned by the Mashantucket Pequot Tribal Nation and the Mohegan Tribe, respectively.
Blumenthal proposed and sponsored the bill and the GAE Committee approved it in April by a vote of 8-3. But the bill died May 12 when the Finance, Revenue and Bonding Committee failed to act on it by a legislative deadline.
Democratic Sen. Gayle Slossberg, the senate chair of the GAE Committee thanked the panel members for their “time to come and help educate us as well as the public on this very important issue” of tribal sovereignty.
“There are all sorts of issues that have arisen with regard to tribal sovereignty. It’s our job to make sure that we make good and informed decision so that we understand what’s actually going on, what is right and what is legal.”
Echohawk obliged. “In my work on behalf of tribes across the country, I find that one of the biggest obstacles that we have in this country is the ignorance, if you will, of the American people on the background and history of our Indian tribes, and I spend much of my time around the country doing what I can to educate people about the status of our tribes under American law.”
In his 15 minutes of forum time, Echohawk reviewed the legal history of tribal-U.S. relations, hitting most of the major legal benchmarks in Indian law from the 1800s to President Nixon’s renunciation of the termination era.
Beginning with the concept of Indian treaties, he walked the legislators to the definition of sovereignty.
“So what’s an Indian tribe? Indian tribes are signatories to treaties. Treaties are signed by sovereign nations. So what’s an Indian tribe? An Indian tribe is a sovereign nation, a government.”
He said indigenous peoples populated the entire hemisphere when Europeans arrived in 1492.
“Contact with Europeans resulted in many events, many of them not very good to talk about because there were conflicts that resulted in wars that were really kind of unspeakable in many events, but the point came across that basically your indigenous nations were sovereign.” He said Europeans came to understand tribal sovereignty and tried to resolve the conflicts using the treaty process they were familiar with in dealing with other European nations.
While most people can grasp the concept of treaties, they need to realize that treaties are not relics of the past, but are still the law of the country, Echohawk said.
Ducheneaux, who was personally involved in developing the Indian Gaming Regulatory Act, focused his comments on that statute and cases leading up to it.
“The underlying basis for IGRA is the sovereignty of Indian tribes. It’s clear that court decisions on gaming were based on tribal sovereignty and therefore our legislation that became IGRA was based on the sovereign power of Indian tribes.”
Ducheneaux read the clear intention of IGRA: “The purpose of the act is to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.
“I have to admit now that IGRA is an intrusion on tribal sovereignty,” Ducheneaux said.
He also explained to the legislators the “canons of construction” – the legal principle that says whenever there is ambiguity in the law, it is to be interpreted in favor of the tribes.
Berger talked about the Mohegan and Mashantuckets’ tribal state compacts and IGRA in relation to state jurisdiction on the reservations.
IGRA authorizes state law on tribal land if both the state and tribe agree, but also keeps out state law if it isn’t authorized in the compact, Berger said.
State law is “relatively limited” in both tribes’ compacts, she said. The compacts say that tribal ordinances and regulations in health standards and other areas have to be at least as rigorous as state laws. That means the compacts do not give the legislature authority to apply state laws to the reservations, Berger said.
Blumenthal disagreed, but before doing so, reiterated his support of the Connecticut tribes and tribal sovereignty.
“Nothing I say is to detract or diminish in any way my belief that sovereignty is not only a matter of established law but it’s also a profoundly important principal of our dealings with each other.”
The attorney general said the issue of state’s rights versus tribal sovereignty is “not easily summarized.”
“The Supreme Court has said there is no rigid rule, there’s a balancing act that takes place in any preemption issues where federal law completely preempts, sometimes partially, sometimes expressly, and the same is true of federal law regarding state law.”
Regarding the proposed smoking ban, Blumenthal believes the tribal state compacts require the tribes to adopt the state’s standards and that the state has enforcement jurisdiction.