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Judges' Tour in 2001 Helped in Lara Win

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BOULDER, Colo. - Hands-on education of Supreme Court justices laid the
groundwork for the Court's strongest affirmation of tribal sovereignty in
many years.

The recent ruling in U.S. v. Billy Jo Lara affirmed that the source of
tribal court jurisdiction over non-member Indians was "inherent tribal
sovereignty." It reversed previous cases whittling away Native self-rule.
But to make this statement of principle, the judges had to reassure
themselves of a practical question, whether judicial systems on the
reservation were up to the job.

Part of the answer came in the amicus curiae (friend of the court) briefs
filed through the Supreme Court Project of the Tribal Sovereignty
Protection Initiative. The National Congress of American Indians and the
Native American Rights Fund devised a strategy and division of labor in a
series of conference calls so that NARF filed a factual brief outlining the
real-life situation on reservations. Submitted on behalf of 18 tribes, the
brief described the crime problem created by previous Supreme Court rulings
and emphasized that tribal courts were "well suited" to handle it.

But an organization of tribal jurists went even further. In 2001, the
National American Indian Court Judges Association invited two Supreme Court
justices on a chartered-jet tour of several western courts and a training
session for their members.

"All in all, it was the first time Supreme Court justices had visited
tribal courts and were given a chance to visit and witness proceedings,"
said John Echohawk, executive director of NARF. "I thought it was very
profitable, very informative for the justices."

The two on the tour were Sandra Day O'Connor, the former Arizona assistant
Attorney General whom the rest of the court is said to consider as its
Indian law expert, and Stephen G. Breyer, who wrote the Lara decision.

In fact, some new leaders of the host group worry that it might become
something of a controversy, along the lines of Justice Antonin Scalia's
duck hunt with Vice President Dick Cheney. "That's a touchy question," a
staff member told Indian Country Today. "I wouldn't want to test it out."

But according to Echohawk, the idea of the tour originated with the Supreme
Court itself. He said he had contact with a friend of Justice Breyer, "who
had indicated there was some interest in the court in meeting with the
National Tribal Court Judges Association people." The Association leaders
at the time, chair Mary Wynne and vice chairman Mitchell Wright took up the
offer. The association arranged a grant with the Ford Foundation to
underwrite the tour, said Echohawk.

It started in Bozeman, Mont, in July 2001, where Breyer and O'Connor had
just finished attending a nearby judicial conference of the 9th Circuit
Court of Appeals. The grant money provided a chartered jet to fly the
justices to the Spokane Indian Reservation, where they toured the Spokane
Tribal Court.

"They watched its proceedings first hand and met with tribal leaders," said
Echohawk.

Then the group flew to the Navajo Nation, where they were hosted by the
nation's Supreme Court Chief Justice Robert Yazzie. Their last stop was
Reno, Nev., at the National Judicial College, where the two justices
participated as faculty in a course for tribal appellate justices. They sat
on a panel including federal judge William Canby, author of "Indian Law in
a Nutshell" and law professor Rebecca Tsosie and took written questions
from the audience.

The tour came just after the Supreme Court had issued its controversial
ruling in Nevada v. Hicks, and tribal judges were primed to let Breyer and
O'Connor hear their reaction. According to Mitchell Wright, former Chief
Judge for the Washoe Tribe of Nevada and California and an organizer of the
Reno session, the panel produced a "sincere and courageous exchange about
the distressing trend in recent Supreme Court opinions, which fundamentally
erodes the foundations of tribal sovereignty."

Whether the tour influenced the Lara decision or not, it coincided with a
federal effort to improve the training of tribal courts. In 2002, the
National Judicial College formed a National Tribal Judicial Center "to
provide tribal judges with the unique skills and knowledge they need to
enhance their tribe's integrity as well as tribal sovereignty." Mitchell
Wright was its first director. The Indian Court Judge's Association also
established a National Tribal Justice Resource Center. Starting with a
one-year grant in 2000 from the U.S. Justice Department's Bureau of Justice
Assistance, it now sponsors a busy program of seminars under the rubric
"Judges Training Judges,"

Several other groups in the West are also offering training as
sub-contractors to the Northern Plains Tribal Judicial Center at the
University of North Dakota.

The NARF-NCAI Supreme Court Project is also looking ahead to the next
battle. With only one Indian case presently on the Supreme Court docket, it
is watching some cases that are moving into the Court of Appeals level. Its
lawyers are working on a draft brief, for instance, for the case of
Carcieri v. Norton, involving a land-into-trust declaration on 31 acres for
the Narragansett Tribe of Rhode Island. The case could raise basic issues
about the Interior Secretary's delegated powers, said Echohawk.

But this work was limited by scarce resources, said Echohawk. "The Project
is always in a fund-raising mode."