WASHINGTON, D.C. ? The U. S. Supreme Court loomed large in the minds of representatives from all over Indian country who gathered here at the end of February for the National Congress of American Indians (NCAI) Executive Council winter session.
The Court will face such crucial decisions on tribal sovereignty, taxation and criminal jurisdiction in coming months and years that some delegates called for an effort to place an American Indian jurist on the country's highest bench.
The call, and even the names of some potential nominees, came during an historic highlight of the conference, an address by U.S. Supreme Court Justice Stephen G. Breyer. Breyer is the first sitting judge from the high court to address the NCAI in its 58-year history.
The NCAI is the largest representative congress of American Indian organizations. It serves over three-quarters of the Indian and Alaska Native population.
Robert Yazzie, Chief Justice of the Navajo Nation, introduced Justice Breyer to an enthusiastic audience of tribal leaders and other delegates. Yazzie said that he first met Breyer in June 2001 when the Justice visited the Navajo court to observe traditional dispute resolution and peacemaking procedures.
"He expressed, as he put it, his commitment to improving the quality of justice and, therefore, the quality of life on reservations," said Yazzie, describing an address Breyer made to the American Bar Association about his visit. Breyer called Navajo peacemaking a highly successful mediation technique, said Yazzie, adding that this statement to a national body of lawyers was a testament of his commitment to American Indians and the shared values of good government.
Breyer discussed the complexity of Navajo and Spokane legal systems and said that aspects of its tribal courts had important lessons for other Indian and non-Indian justice systems. He cited pre-trial diversionary programs in the Spokane court as a tribal member enters the system. As an example, he told of a young man who had entered the legal system as the result of a drug arrest, but was forced to help resolve, not only his own problem, but the drug abuse dilemma in the tribal community.
"It was expensive and took a lot of time, but was extraordinarily successful," said Breyer. "It stuck in my mind as worthwhile program where Congress or the states ought to provide adequate resources, not simply to be generous, because it is everyone's best interests for people not to become drug addicts."
He said that the dramatically higher rates of success of this and similar tribal systems showed something was to be learned from them. Justice Sandra Day O'Connor accompanied Breyer on his visit to the Spokane and Navajo courts. He said that the cultural sensitivity and insight of the Navajo judges allowed them to resolve disputes by relying on traditional values.
"We in the legal system often say these words, that when you enter the legal system, that is the end of the line and it represents a failure of the family. It represents a failure of the community," said Breyer. "It represents a failure of the lawyers, but we too infrequently act on it."
He added that the Navajo legal system appeals to the family and community. Its reasonable rate of success, he said, should arouse interest outside of Indian communities.
The justice said there are problems from blurring lines of jurisdiction between the federal government, states and the tribes, especially when someone enters the legal system. Often, he said, witnesses and parties to legal actions in tribal courts are not within their jurisdictional reach and cannot be compelled to appear. He conceded that no one would argue that the current system of jurisdictional powers and sovereign authority is perfect and said something needed to be done.
"As a judge, I would like to know what Congress thinks," Breyer said about efforts to find a practical solution. He said any solution had to take into consideration the opinions and interests of all parties.
President Clinton appointed the 64-year-old Breyer to the Supreme Court in 1994. The San Francisco native is a graduate of Stanford, Harvard and Oxford University. He has served as a lawyer, lecturer, federal civil servant and judge on numerous federal benches.
In the question and answer session, tribal leaders expressed a strong interest in the appointment of an American Indian lawyer to the Supreme Court to Breyer. John EchoHawk and Sue Williams, both prominent American Indian attorneys and legal scholars, were pointed out as potential candidates for the infrequent openings on the Supreme Court. Native American representation would be an important step in protecting financial, cultural and sovereignty issues in Indian country.
John Echohawk (Pawnee) has served as the executive director of the Native American Rights Fund in Boulder, Colo. since 1977. The National Law Journal has called him one of the 100 most influential lawyers in the United States. He also serves on the boards of the American Indian Resources Institute, the Association of American Indian Affairs, the National Committee for Responsive Philanthropy, Natural Resources Defense Council and the National Center for American Indian Enterprise Development.
Susan M. Williams (Sisseton-Wahpeton Dakota) is a shareholder in Williams, Janov & Cooney, a woman-owned law firm in Albuquerque, N.M. She has served as the executive director and chairperson of the Navajo Nation Tax Commission. Williams also lectured at Harvard University Law School and Stanford Law School on Indian law. She serves on the board of directors for the World Wildlife Fund and the American bar Association Water Resources Committee. Her firm has been the lead lobbyist for successful Indian legislative efforts under the Safe Drinking Water Act, the Clean Water Act and the Indian Tribal Governmental Tax Status Act. In 1989, Williams successfully argued the Big Horn case before the United States Supreme Court, a major but isolated victory in the court for Indian country.