The long-running case raises issues that go to the heart of what it means to be an “American Indian” and what “Native sovereignty” stands for. But the messy way the Nooksack Tribal Council has recently inserted itself into the legal process of the Nooksack Tribal Court raises another problem altogether.
Whatever the outcome of the specific dispute about “Nooksack tribal membership,” the specter of the tribal council tangling with the practice of law in a tribal court feeds negative stereotypes about American Indian legal systems. Those stereotypes are involved in a crucial case before the U.S. Supreme Court right now: Dollar General v. Mississippi Band of Choctaw.
Dollar General Corporation wants to evade the jurisdiction of Choctaw courts. The company asked the U.S. Supreme Court to overrule lower court decisions upholding Choctaw jurisdiction. In getting the court's agreement to hear the case, Dollar General’s lawyers said, “tribal courts are often subordinate to the political branches of tribal governments,” and “the content of tribal law is often knowable only to a few tribe members.”
If a majority of the court believes those allegations, they may drastically curtail all tribal court jurisdictions. The Dollar General case awaits a decision. The death of Justice Antonin Scalia may reduce the likelihood the court will undercut the Choctaw, but the fact that the court agreed to hear the case at all hangs over Indian country.
Let's look at how the Nooksack case plays into the negative stereotypes about Native legal systems:
On February 29, the Nooksack citizens targeted for “disenrollment” won an important motion in Nooksack Tribal Court, when Judge Susan Alexander affirmed their right to vote in the upcoming 2016 elections. But, apparently unbeknownst to these citizens, their lawyer, and the court itself, the Nooksack Tribal Council had taken steps on February 24 to disbar their lawyer.
On March 7, when the lawyers tried to file motions to get copies of council resolutions and related documents, the tribal judge said the council disbarment move prevented the court from accepting the motions, and that the citizens were now in a pro se status, i.e., they had to represent themselves.
The council did not directly deprive the Nooksack citizens of all legal representation, but it derailed their representation in the middle of the case. According to a statement filed in tribal court by the lawyers, the tribal council convened a special meeting during which it “resuscitated” a tribal resolution on business license procedures that had not been enforced for 30 years. The lawyers told the tribal judge their application for a business license had been returned by the Nooksack Chief Financial Officer, with a statement, “We…are not able to issue the requested license.”
The right to be represented by a lawyer in criminal cases has long been seen as fundamental, but representation in civil cases stands on a lower rank. Nevertheless, many jurisdictions provide a right to counsel in the most serious types of civil cases, such as termination of parental rights and commitment proceedings.
I am not taking a position on the merits of the particular Nooksack cases. I am saying that the seriousness of threatened “disenrollment” equals termination of parental rights and commitment proceedings, in which other jurisdictions have declared a right to legal counsel. “Disenrollment” sunders personal, social, and community relationships. It relegates the “disenrolled” to the status of “nonpersons.” Citizenship has been called “no less precious than life or liberty.”
Native governments operate under special scrutiny, especially in the context of international moves toward full indigenous self-determination. When anti-Indian forces attack Native governments, they look for instances of injustice and unfairness, as well as for any sign that tribal government involves nepotism, inside dealing, or corruption. Native government actions that undermine confidence in justice and fairness add fuel to anti-Indian forces.
Which brings us back to the Dollar General accusations, “tribal courts are often subordinate to the political branches of tribal governments,” and “the content of tribal law is often knowable only to a few tribe members.”
Judge Alexander, though abiding for the moment with the purported disbarment resolution, vigorously responded to the council. She issued an order on March 7, stating: the circumstances “suggest… a lack of notice and opportunity to be heard in connection with [the disbarment].”
She went on to cite the Indian Civil Rights Act of 1968, “No Indian tribe in exercising powers of self-government shall ... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” She then ordered the council to describe what due process the attorneys had been given in connection with the resolution: “The court … wishes to know, factually, what notice and opportunity to be heard were afforded [the] attorneys.”
By pushing back against the Nooksack Council, Judge Alexander demonstrated that the tribal court will not be “subordinate to the political branches.” Her order demanding the council explain its actions in terms of due process assures that “the content of tribal law” will not be “knowable only to a few tribe members.”
Even if we take the position that Congress had no authority to mandate Indian Civil Rights because the U.S. has no jurisdiction over indigenous nations, we can still arrive at the conclusion that Native law should be just and fair.
This is not the time to analyze the whole “enrollment” and “disenrollment” process, which in many instances has become thoroughly entangled with “blood quantum” and other white man’s definitions of Indians. Suffice it to say that the definition of “American Indian” belongs in Native governments; and such decisions ought to be made in ways that enhance overall Native self-determination.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.