Harjo: Indian laws and Tribal lawmakers

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A certain Indian leader was on the witness stand in federal court a few decades ago. A lawyer was questioning him and the Indian man kept repeating, "I abstain."

Exasperated, the lawyer asked the judge to direct the witness to respond. The judge said, "You cannot abstain. This is a court of law."

The witness said, "I'm on the tribal council. We make laws all the time and I always abstain."

That tribal leader may not have known the extent of his lawmaking role or potential, but he did know that he was part of a lawmaking process.

This is something that many tribal government representatives today do not appreciate - that they are lawmakers and that the futures and fortunes of Native nations can turn on tribal laws.

When lawyers in the Indian bar write about the dynamic nature of federal Indian law, they often are referring to the way that federal law can change because an Indian nation's government has enacted a new law or made a declaration of prior existing rights.

In the early 1980s, the federal government was suing the state of Michigan because it would not recognize Indian treaty fishing rights. While the case was in federal district court, the federal administration changed.

The new Secretary of the Interior, James A. Watt, was a states-rights politician who wanted to tip the litigation in favor of Michigan. Watt withdrew the federal regulations recognizing treaty rights and tribal regulations, on the theory that the court would uphold the state regulations disallowing Indian treaty fishing and tribal regulatory authority.

Instead, the federal judge ruled that the federal regulations preempted the state regulations. However, he opined, once the federal regulations were withdrawn, the state regulations did not predominate. Rather, the tribal regulations preempted the state regulations.

Many tribal governments do not pass laws and regulations stating what they intend to govern and how.

If the tribal leaders in Michigan had not enacted treaty fishing laws and regulations, they would have been subjected to the state's laws and regulations when the feds backed out. The Watt plan to undermine and bury treaty fishing and tribal regulation in Michigan would have worked.

Some tribal leaders do not perceive the power in a resolution or declaration of rights. Many lawyers who represent tribes do not fully understand this power either and are under the mistaken belief that tribal authorities derive from grants from the federal government, rather than arise from the inherent sovereign powers of Indian nations.

In the 1970s, it was the view of most lawyers representing tribes - most of whom were not Indian at that time - that tribal sovereignty was derivative.

The law firm that represented the National Congress of American Indians and a number of Indian tribes had been the main advocate on Capitol Hill for the law that conveyed civil and criminal jurisdiction over tribes and Indians to certain states. One of its top attorneys had insisted in the mid-1970s that NCAI keep all Indian lawyers off its National Indian Litigation Committee, saying that Indians were not yet capable or experienced lawyers.

One of the main panels at the NCAI's annual convention in 1973 was entitled: "Sovereignty: Granted or Assumed?" A lawyer took the position that it was granted by Congress. A tribal chairman said it had to be assumed (as in, taken) from the federal government. One tribal leader in the audience said that sovereignty was inherent, but only a few people applauded; others whispered that he was "radical."

During the 1975 congressional study, the American Indian Policy Review Commission, one Indian task force chairman kept using the terms "sovereignty" and "nations." A non-Indian lawyer urged that such terms not be used, because they were inaccurate terms of activism and would attract negative attention and opposition to the Commission's work.

The Indian task force chairman quietly explained that sovereignty was an accurate word and concept, and a term of art in law. He also asked what the lawyer suggested calling those tribes whose duly constituted name included "nation," such as Yakama Nation, Navajo Nation, Muscogee Nation.

Cases have been won and lost on the basis of what paper says what about tribal rights. There is a lot of bad paper out there about Native nations, histories and rights.

There also is a fair amount of bad paper adopted by tribal governments and printed on tribal letterhead. Much of this comes from lawyers and tribal workers who simply take an outside entity's statement, resolution, law or regulation and scratch out its name and insert the tribe's name.

Usually, this is a poor-to-terrible fit. More than a mismatch, it misses the opportunity to build on tribal longevity and what is called in federal water law "prior and paramount rights." A fair number of tribes have cultural resources codes that limit and distort Indian national and traditional authority regarding religious and cultural rights.

For example, some of these codes mischaracterize human remains and funerary items as property, resources and grave goods, throwback terms that Native people fought hard to keep out of the repatriation laws. Some others neglect to declare Native nations' prior and paramount rights to their own names, symbols, languages and sacred places.

Cases have been won because tribal litigants were able to come up with paper showing what the Indians thought they were doing when they signed treaties and entered into other agreements. This fundamental principle of federal Indian law was challenged in the 1990s, but the Supreme Court upheld it in 1999.

Even those Indian nations that are not in litigation at this time might consider gathering paper regarding Indian interpretations of Indian rights. If there is no paper - or if there is only bad paper - the oral histories of tribal elders and cultural rights specialists could be recorded and committed to writing. These are valid documents of reliance, which are meat and potatoes for lawyers and courts.

The most important thing that tribal leaders can do is take their actions seriously and not just fall in line with the latest federal or state politician to have a picture taken with them. There are certain tribal and national Indian leaders who are known for changing strong positions to weak ones and ignoring tribal and national Indian policy positions altogether.

There is one legendary series of tribal resolutions, going back and forth monthly and taking opposite positions. Finally, the tribal council passed a resolution that ended with the phrase, "and no more changing our minds."

Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.