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Supreme Court's decisions against tribal (Private) sovereignty must be overturned by Congress

Last year, the United States Supreme Court issued two decisions that severely diminished tribal authority to govern Indian country. In Atkinson Trading Company v. Shirley, the Supreme Court held that the Navajo Nation hotel occupancy tax could not be applied to a hotel on non-Indian land within the boundaries of the Navajo Nation even though the Navajo Nation tribal government was providing police and fire protection services to the hotel. In Nevada v. Hicks, the Supreme Court decided that the Fallon Paiute-Shoshone Tribal Court did not have jurisdiction over a state game warden who came onto Indian land and violated the civil rights of a tribal member and damaged the tribal member's property.

These two decisions essentially mean that, from now on, tribes lack any authority over non-Indians in Indian country, even on tribal lands, unless non-Indians somehow specifically consent to tribal jurisdiction. In response to the governance crisis created in Indian country by these two decisions, tribal leaders met together a year ago, on Sept. 11, and decided they could not face a future where tribes had little or no control over non-Indians in Indian country, even on tribal lands. Tribal leaders formed the Tribal Sovereignty Protection Initiative that has as its principal objective the passage of congressional legislation that would reaffirm inherent tribal governance authority over all people and all places within Indian country.

Open to all tribes, the Tribal Sovereignty Protection Initiative is co-chaired by Tex Hall, President of the National Congress of American Indians, and Kelsey Begaye, President of the Navajo Nation. Its Legislative Options Committee, open to all tribal attorneys and lobbyists, is co-chaired by John Echohawk, Executive Director of the Native American Rights Fund, and Susan Williams of Williams and Works in Corrales, N.M. After numerous meetings over the past year, the Initiative has completed a Concept Paper on a 2003 Legislative Proposal for a Tribal Governance and Economic Enhancement Act (printed in this issue of Indian Country Today).

During the fall election campaigns, tribal leaders in each state will be meeting with congressional and state candidates and other congressional and state leaders to seek support for and comments on this Concept Paper. The Concept Paper describes the problems faced by tribes as a result of the recent Supreme Court decisions and the need for Congress to address these problems in its constitutional role of making federal Indian policy. At issue is the basic authority of tribal governments in this country: should tribal governments only have authority over Indians in Indian country or should tribal governments have authority over all people and all places within Indian country?

The Concept Paper proposes federal legislation that would reaffirm the inherent authority of tribes to govern all people and all places within Indian country and recognize tribal governments as the primary governments in Indian country. Since the needs and conditions of our 562 tribes differ, tribes should have the option of accepting as much civil jurisdiction and misdemeanor criminal jurisdiction over all people and all places within Indian country as they choose to exercise. One size does not fit all in Indian country, so this legislation should provide flexibility for each tribe to exercise only the jurisdiction that it wants and can manage. Federal funds should be made available to assist tribes to enhance their tribal institutions, like tribal courts, that are exercising the jurisdiction that they opt to take under this legislation.

We know that some non-Indians fear mistreatment by our tribal courts. We believe that these concerns are wrong, but the fact that many tribal court decisions involving non-Indians are now unreviewable in federal courts has caused serious political problems for tribes and has been a major factor in several Supreme Court opinions that have limited tribal sovereignty in recent years. In response, the Concept Paper proposes that those tribes who choose to exercise any of this broad jurisdiction over non-Indians also agree to limited federal court review of their tribal court decisions affecting civil rights and other questions of federal law. Tribal court decisions involving internal tribal matters like tribal elections and tribal enrollment would not be subject to federal court review.

States would still be obligated to provide services to tribal members. We acknowledge, however, that state and local tax revenues would be impacted by tribal governments becoming the primary governments in Indian country under this proposal. In response, the Concept Paper proposes that state and local governments receive federal funding for the services they do provide in Indian country through the existing federal payments in lieu of taxes program which should be extended to cover all lands in Indian country.

We believe that the legislative proposal contained in the Concept Paper of the Tribal Sovereignty Protection Initiative is a fair proposal which provides the clarity in Indian policy from the Congress of the United States that the country needs as we begin the 21st century. We hope that everyone across the country will give serious consideration and support to this Concept Paper.