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Russell: When can we blame the victims?

Sovereignty, even in the watered down version approved by our colonial masters, carries awesome power within the tribal community. I’ve always been taught that power carries responsibility.

We can’t sue our tribal governments in tribal court without their permission because of sovereign immunity. Of course, nobody else can sue them in any other court, either, and for the same reason.

Tribal governments wishing to attract direct foreign investment (a term imported from international relations to Indian policy) must normally make themselves sue-able. Newly minted tribal officials sometimes find this sinister, but it reflects the way business is normally done outside Indian country.

Sovereignty, even in the watered down version approved by our colonial masters, carries awesome power within the tribal community.

State governments and the federal government normally provide for lawsuits on contracts they enter. The federal government and all state governments have “tort claims acts” that waive sovereign immunity when the government causes damage to citizens in normal, everyday activities. You can usually sue the state if a state vehicle hits you. (In most states, you can sue if it was negligent when the state designed or repaired a public road that caused an accident).

These customary accommodations make sovereign immunity invisible and therefore tolerable to the average person doing normal things. Now and then, there is something that doesn’t fit. Famously, people have been wrongfully imprisoned for many years when newly available DNA testing proves they are innocent.

Often, the government has done nothing wrong in the innocence cases. Many are the result of confessions or eyewitness testimony, both as unreliable as they are persuasive. Every police officer who becomes a detective quickly learns if a case is notorious enough for the front pages, it is likely to generate false confessions, so the police must always keep enough information out of the newspapers to sort through the people who want fame badly enough to claim it at the cost of their reputations. It is sad to consider yourself so inconsequential that infamy would be an improvement, but it’s common.

Eyewitness identification of a stranger is difficult for anyone. When you are under stress, it becomes more difficult, and for most people being robbed or raped is highly stressful.

Cross-racial identification is even harder. Did you ever look at an Indian and try to guess the tribe? Some Indians (but few non-Indians) can. When I was in the Air Force, I was assigned to a base that trained Vietnamese, Thai and Laotian pilots. After I was there more than a year, I could give an educated guess of a pilots’ nationality based on things that used to hide in my brain under “Asian.”

Even in cases where the government did nothing wrong, most of us believe that somebody sent to prison for a crime they did not commit is owed some money, since they can’t have their life back. Wrongful conviction would normally not be covered by a state tort claims act, but many states are passing laws that just fork over damages to innocent persons based on years lost.

Sovereign immunity means 'the king can do no wrong,' but most Americans believe the king can do wrong.

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Sovereign immunity means “the king can do no wrong,” but most Americans believe the king can do wrong. If sovereign immunity were not full of enough holes to allow for most common claims against governments, the voters would have sunk the doctrine by constitutional amendments by now.

Putting yourself in the shoes of a business wanting to invest with a tribal government, would you commit money without a waiver of sovereign immunity? Neither will most businesses. I have suggested that tribal governments should insert arbitration clauses that designate tribal law as the rule of decision, but that’s another conversation.

There have been two cases recently where tribal citizens have lost a great deal, and the nature of the public controversy has been about efforts to hold state or federal government responsible. In both cases, the tribal government was better situated to prevent the harm and ought to have had more incentive to prevent the harm.

I’m not going into the facts because the rights and wrongs of these cases do not matter to the point, which is the liberal meme of Native Americans as victims. Like the conservative meme of Indians as players of identity politics hardball. Neither idea represents us correctly.

My colleague Steve Newcomb has pointed out that we need not accept “the way things are” when things are completely irrational. Federal Indian Control Law (Robert Odawi Porter’s phrase) tells us tribal governments and individual Indians were wards of the federal government. Whether we agreed to be wards or it was thrust upon us, we need to think about that status.

Most wards grow up and become full citizens, responsible for their own decisions. The exceptions are persons suffering from physical or mental disabilities such that they will never be competent to manage their own affairs. Which kind of ward are Indian nations?

Elouise Cobell’s lawsuit reminds us that the federal guardian has not been faithful to a guardian’s duties, because the most basic duty is keeping track of the ward’s property. The Navajo Nation lost a lawsuit where the guardian’s actions were more than merely negligent. The tribal government negotiated a lease agreement and the federal government, apparently acting in concert with the lessee, pushed the tribal government to reopen negotiations and accept less money. In over 20 years on a state court bench, I have never seen such an outrageous breach of trust.

Our governments must step up and govern. That means not just using power but being responsible to tribal citizens for bad outcomes in independent and honest tribal courts.

The recognized powers of tribal governments have been expanding ever since the colonists abandoned termination and relocation as Indian control policy. Many powers are seldom used. Few tribes issue revenue bonds, or charter corporations, or maintain a tax base independent of the U.S. Too many tribal laws ape state laws for no reason beyond convenience.

If we want to quit being wards, our governments must step up and govern. That means not just using power but being responsible to tribal citizens for bad outcomes in independent and honest tribal courts. Sovereign immunity runs against your own people only if you choose to assert it. Tribal governments should think twice about that assertion, unless they are comfortable being “wards.” There are names for the act of exercising power without responsibility, none of them complimentary.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and an associate professor of criminal justice at Indiana University. He is a columnist for Indian Country Today. He lives in Bloomington and can be reached at