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Governance Initiative would temper U.S. Supreme Court on erosion of tribal powers

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First last June, and then this past week, federal agents busted up traditional Indian ranchers pressing for recognition of land rights. In both instances, the pressure was on Western Shoshone people, whose land claims case provides an example of how the U.S. Supreme court can decide on the incidentals of an Indian issue rather than deal fairly with the central sequence of history, which in this situation does not equate to the court's legal assertion.

The harshest criticism is due the High Court for their decision on Western Shoshone land rights. That decision denied a fair hearing to the question whether Western Shoshone lands had been in fact "taken over" by United States jurisdiction, when and if such condition as "encroachment" constitutes legal basis for usurpation of commonly held tribal lands, loss of title, loss of right to ever claim such lands again. Transfer of title was never determined but the federal government argued it and the Supreme Court affirmed it. While for many years the Western Shoshone would not accept a money settlement from the Indian Claims Commission, Interior Department accepted it on their behalf. This legal but dishonest maneuver that the U.S. Supreme Court chose to uphold in 1985 was made to pass for "acceptance" of the Claims Commission pay out. That case was brought by Western Shoshone sisters Mary and Carrie Dann, whose cattle was confiscated and auctioned last week by the Bureau of Land Management. It saw the U.S. Supreme Court rule that the tribe lost judicial recourse when the Secretary of Interior accepted the money for them. However, no one ever affirmed that title over the lands in question had transferred; it was simply assumed.

The trend in U.S. Supreme Court decisions negatively affecting tribal sovereignty has become obvious in the past fifteen years. Last week, a coalition of lawyers and student and tribal governments took their challenge public, right to the steps of the Supreme Court building, to question the legal definitions and biased positions assumed by the Supreme Court in recent years.

While the legislative and certainly the executive branches of government have made serious strides in affirming, accepting and even championing the obvious historic reality and practice of tribal sovereignty, the judicial branch has been tilting negative since Court appointments began moving toward more fundamentalist conservative ideology under President Ronald Reagan. However, even Reagan himself could not have foreseen or agreed with the consequences. Consider his own statement on Indian policy on Jan. 24, 1983: "Despite the Indian Self-Determination Act, major tribal government functions ? enforcing tribal laws, developing and managing tribal resources, providing health and social services, educating children ? are frequently still carried on by Federal employees. The Federal Government must move away from this surrogate role which undermines the concept of self-government."

The proposal presented to Indian country and the nation this week (published in Indian Country Today), by American Indian tribal leaders Tex Hall (president, National Congress of American Indians) and Kelsey Begaye (president, Navajo Nation) and the very active Native attorneys, John Echohawk (executive director, Native American Rights Fund) and Susan Williams (partner, Williams and Works, Corrales, N.M.), deserves serious attention, reflection and action by all who support the inherent sovereignty of Indian governments. The four co-authored a concept paper and legislative initiative, which responds to two recent decisions that "severely diminished tribal authority to govern Indian country."

One decision they cite is Atkinson Trading Company v. Shirley, where "the Supreme Court held that the Navajo Nation hotel occupancy tax could not be applied to a hotel on non-Indian land within the boundaries of the Navajo Nation even though the Navajo Nation tribal government was providing police and fire protection services to the hotel." This ruling deserves further scrutiny in that it has also been used, extensively, to Indian advantage in the Montana Supreme Court taxation case Flat Center Farms Inc. v. State of Montana, Department of Revenue. The converse also applied that the state could not tax Indian businesses for public "benefits."

The other is Nevada v. Hicks, where the Supreme Court denied the Fallon Paiute-Shoshone Tribal Court's jurisdiction over a state game warden who violated the civil rights and damaged the property of a tribal member on tribal land. These decisions created a "governance crisis" by seriously damaging tribal authority over non-Indians in Indian country, claim the four co-authors, who also are at the forefront of a national movement, the Tribal Sovereignty Protection Initiative, co-chaired by Hall and Begaye, with a Legislative Options Committee co-chaired by Echohawk and Williams.

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The initiative emerges from a fateful Sept. 11, 2001, Washington, D.C. meeting by tribal leaders responding actively to the Court decisions. The right to have control over Indians as well as non-Indians in Indian country was considered by tribal leaders a crucially important principle to sustain. This is particularly relevant because "non-Indians commit 70 percent of the violent crimes experienced by American Indians." The leaders formed and called for the launching of the pro-Tribal Sovereignty initiative. Principal objective: pass congressional legislation that will reaffirm "inherent tribal governance authority over all people and all places within Indian country." International events superceded the Indian jurisdictional discussion for a time but it is back with full force as a national "Sovereignty Run" just ended its marathon jog across the United States.

The Initiative's Concept Paper calls for federal legislation to "reaffirm the inherent authority of tribes to govern all people and all places within Indian country and recognize tribal governments as the primary governments in Indian country." The authors write, "Should tribal governments only have authority over Indians in Indian country or should tribal governments have authority over all people and all places within Indian country?"

Standing on this principle, which has been firmly articulated by presidents since John F. Kennedy and quite refreshingly since Richard Nixon's introduction of tribal self-determination as federal Indian policy in 1975, and including the many clear Executive pronouncements affirming American Indian sovereignty by presidents Carter, Reagan, Bush I, Clinton and Bush II, the four distinguished "initiators" of the Sovereignty Protection Initiative offer a well-reasoned position that does and should command much interest and support. They accuse the Supreme Court with "breaking from the established legal framework set by Congress and previous judicial opinions." Court decisions "threaten and [limit] tribal governance and economic progress in Indian country."

The great variety represented by 562 tribes is specified in the Concept Paper, which intends to provide flexibility, including "the option of accepting as much civil jurisdiction and misdemeanor criminal jurisdiction over all people and all places within Indian country as they choose to exercise." They also call for funds to "enhance tribal institutions, like tribal courts, that are exercising the jurisdiction that they opt to take under this legislation."

The Concept Paper cites non-Indians' fears of mistreatment by tribal courts. Separating fact from myth is important in this context. An overwhelming reality is that many tribal court decisions involving non-Indians are now unreviewable in federal courts. This causes serious political problems by limiting jurisdiction for tribes.

In response, the Concept Paper describes the "problems faced by tribes as a result of the recent Supreme Court decisions and the need for Congress to address these problems in its constitutional role of forging federal Indian policy." The paper, which provides a succinct overview of Indian jurisdictional issues, proposes that those tribes who choose to exercise any of this broad jurisdiction over non-Indians also agree to "limited federal court review of their tribal court decisions affecting civil rights and other questions of federal law." However, tribal court decisions "involving internal tribal matters like tribal elections and tribal enrollment would not be subject to federal court review." For states obliged to provide services in Indian country, the Concept paper prescribes payments from federal government, in lieu of taxes.

During the fall election campaigns, tribal leaders will lobby congressional and state candidates and other congressional and state leaders to seek support for and comments on this Concept Paper.

This is an excellent public policy issue for leaders, both Indian and non-Indian, to fully study, analyze and sharpen. Going to Congress now with concrete and substantial sovereignty-affirming legislation is an important effort. The Supreme Court, left to its own devices, divorced from the broader context of Congressional and Executive Branch policy and now extensive history of affirming the powers of Indian governments, is a recipe for further dismay.