Labin and Dossett: Vigilance through the Tribal Supreme Court Project

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Have we not for years had before our eyes a sample of their designs, and are they not sufficient harbingers of their future determinations? ? Will we wait to be destroyed in our turn, without making an effort worthy of our race? Shall we give up our homes, our country, bequeathed to us by the Great Spirit, the graves of our dead, and everything that is dear and sacred to us, without a struggle? I know you will cry with me: Never! Never! Then ? let us form one body, one heart, and defend to the last warrior our country, our homes, our liberty, and the graves of our fathers.

- Tecumseh

Tecumseh, Shawnee leader and warrior, spoke these words in 1811 in a speech called "Sleep Not Longer O Chocktaws and Chickasaws." This was one of many speeches he gave in his mission to form a grand alliance of tribes - an alliance that would be strong enough to battle and defeat the American troops that were marching deeper and deeper into Indian territory to make room for migrating settlers. In Tecumseh's view, only a great Indian alliance could fight this devastating encroachment of white settlers into Indian country. Only by uniting, could Indian nations survive.

While these Indian wars may be over, it is time again for Indian nations to unite and fight. Today, Indians are fighting on a different battleground, but are fighting just as much for their survival as they were in 1811. Today, the battles happen in courtrooms. Judges, not soldiers, are threatening tribes' continued sovereign existence. Judges are ruling that Indian tribes lack authority to exercise criminal jurisdiction over nonmembers, that they lack the power to regulate hunting and fishing within certain parts of their reservations, that they lack the power to tax certain people within their reservations, that they lack authority to zone certain parts of their reservations, and that their courts lack the jurisdiction to settle certain on-reservation disputes. Judges are also ruling in favor of state encroachment into Indian country by ruling that states may regulate certain activities within Indian reservations, that they have the authority to impose certain taxes on reservations, and even that they may impose certain requirements on the tribes to collect those taxes for them. These rulings certainly give Indian people a "sample of [the court's] designs" to diminish tribal sovereignty and jurisdiction. If nothing is done, these decisions are likely to be, "harbingers of their future determinations" as well. Something is being done, however. Tribes are uniting to face this challenge. They are uniting in the Tribal Supreme Court Project.

The Tribal Supreme Court project is a joint project of the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI). It is a project designed to coordinate and improve Indian advocacy before the United States Supreme Court. Boiled down to its essence, it is a project to improve the win-loss record before the Court.

Perhaps the greatest threat to continued tribal sovereign existence comes from the rulings of the Judges, or Justices, of the United States Supreme Court. The rulings of the Supreme Court directly impact Indians and tribes at the national level. The decisions of the Supreme Court become "the law of the land" and apply to every state, every tribe, and every Indian. Also, decisions of the Supreme Court shape the future direction of the law. Lower courts must follow the pronouncements of the Supreme Court and oftentimes build upon harmful rulings, leading to further disintegration of tribal sovereign rights.

The rationale of the Supreme Court Project is that if tribes and tribal lawyers join forces, Indian country can stave off further erosion of tribal sovereignty. The resources in Indian country - monetary resources, intellect, and experience - are incredible. Pooling them, we will be able to improve Indian advocacy. We will be better able to educate the Court, better able to make sure the cases with the best facts reach the Court, better able to coordinate the Indian arguments through amicus briefs, and better able to influence the arguments the United States makes on our behalf. In fact, for the past year all of this has begun to happen.

For the past year, the Supreme Court Project has been "up and running." The Project has an attorney working group skilled in Indian law, Supreme Court practice, and other areas of law implicated in Indian cases - areas like property law and trust law. These lawyers have regular conference calls to collectively develop the strongest Indian arguments for briefs and oral arguments. These arguments might be arguments made to the Court once it has already agreed to hear an Indian law case, or made to convince the Court NOT to take a case and reverse a good Indian ruling below. The working group, along with the advisory board, made up of tribal leaders, has also been working on the difficult task of helping tribes make the important decision to bring a case to the Court's attention or not. Often it is best for Indian country to accept a loss below and not to give the Court an opportunity to make another horrific Indian law decision.

The Project also has a nation-wide Indian amicus brief writing network. An amicus brief, also known as a "friend of the Court" brief, allows those not directly involved in litigation, but potentially impacted by it's outcome, to provide information to the Court. Through the coordination of the Project, Indian country can submit to the Court the fewest number, and highest quality briefs in support the Indian argument to ensure that the briefs and the Indian voice get the Court's maximum attention.

Though it has not been in existence long, the Tribal Supreme Court Project has already been extremely successful. This past year three cases went to the Supreme Court: United States v. White Mountain Apache, United States v. Navajo Nation, and Inyo County v. Bishop Paiute Tribe. Out of these three decisions Indian country has one win, one loss, and one tie. This record is much better than the record Indian tribes have suffered over the past 20 years. As noted Indian law scholar David Getches found, prior to the creation of the Supreme Court Project, Indians were losing four out of every five cases before the Court. Other "victories" are apparent as well. For instance, through coordination, Indian country was able to amass extremely important, though not widely known, information and submit that information to the Court. Also, through coordination, Indian country was able to convince four states to file an amicus brief to the Court supporting the Indian position. And, it was able to convince another state to remove itself from a brief filed against tribal interests.

As the Supreme Court Project has already shown, in unity there is great strength. And this strength can only grow as alliance between tribes grows through the Tribal Supreme Court Project.

For more information or to make a contribution to the Tribal Supreme Court Project, please contact Tracy Labin, Native American Rights Fund, (202) 785-4166, labin@narf.org or John Dossett, National Congress of American Indians, (503) 248-0783, jdossett@ncai.org.

Tracy Labin is of Seneca and Mohawk descent and is an attorney at the Native American Rights Fund. John Dossett is General Counsel at the National Congress of American Indians.