April, 2002
"Citizens Making A Difference"
Stand Up For California!
Cheryl Schmit, Executive Director,
PO Box 355,
Penryn, California, CA 95663
"Hicks Fix or Tribal Statehood?"
Tribal fundamentalists are in quest of an unparalleled power from Congress. The National Congress of American Indians (NCIA) is promoting federal legislation to reinforce and codify expanded tribal sovereignty. This is an all out effort for a Congressional fix to the Nevada v. Hicks U.S. Supreme Court ruling in which the high court decided that a tribal court lacks federal adjudicatory jurisdiction over state officials who enter an Indian reservation to investigate an off-reservation crime.
Their "Hicks Fix" proposed legislation is an attempt by tribes nationwide to elevate their governments to a sovereign status equal to Statehood, thereby giving tribal governments and their tribal courts criminal and civil authority over non-Indian citizens, an authority they currently have only over tribal members. In essence, their "Hicks Fix" would give tribal governments all of the necessary components of Statehood.
Tribes currently have the ability to legislatively create their own laws, enforce their own laws, and adjudicate their own laws only against their own members. What tribal governments now want is authority and jurisdiction over both Indian and non-Indian citizens - - both on and off Indian lands. Tribal governments want authority and jurisdiction over non-Indian citizens who do not have any voice or ability to vote on the daily operation or actions of any tribal governments.
Every U.S. citizen and elected official should be gravely concerned about the possibility of giving this much power and the authority of statehood to tribal governments. Tribes are immune to civil liability because they are the only governments left in America who still have absolute sovereign immunity from suit (i.e. a tribe must give its permission in order for anyone to sue them) . This issue becomes critical when tribes want to exert civil and criminal jurisdiction over non-Indian citizens, in the same way that states exercise civil and criminal jurisdiction over non-Indian citizens. Wronged persons (Indians and non-Indians alike) have no recourse, and there is no accessible process in place for citizens who suffer wrongful detention, arrest, injury, or abuse of their civil rights by a tribal government .
The "Hicks Fix" is not a Congressional action to achieve a friendly application of tribal jurisdiction over "Indian Lands" and "Indian peoples" but an all-out effort to achieve "Statehood and dominance over non-Indian citizens". Such a Congressional action would further aggravate the transgression of the civil rights and property rights experienced by non-Indian citizens living or visiting on and around Indian lands, including visits to tribal casinos. Moreover, this legislation would place unnecessary hardships on the regulatory authority of each State over State lands and citizens.
Congress originally intended for tribes to be protected by federal law, not to allow tribal governments to use federal law as a weapon against states, local governments, or communities of citizens. There was benevolence to conferring tribal sovereignty. Sovereignty was created by Congress as a shield to protect Indian governments on Indian lands from harmful incursions by states and non-Indian citizens. Federal legislation (The Trade and Intercourse Act) was passed by Congress allowing only federal agents to travel onto Indian lands and trade with Indians, providing for protection of alienation of Indian lands, for remedies of theft or destruction by Indians of non-Indians property, and also providing for the punishment of crimes. Congress made it clear that it alone had plenary power over tribal governments.
The United States Supreme Court has ruled clearly and indisputably that tribal governments have legal authority to protect themselves, but not to abuse their authority with dominance over non-Indian citizens. Faced with such clear and indisputable language from these Supreme Court rulings, the tribes have decided they must turn to Congress in hopes of achieving their goal of expanded and codified tribal sovereignty (i.e. greatly expanded tribal sovereignty, equivalent to tribal statehood, allowing tribal authority and dominance over non-Indian citizens, both on and off of Indian lands).
Here are the U.S. Supreme Court rulings that tribes believe have eroded their tribal sovereignty and which they seek to overturn with federal legislation:
Nevada v. Hicks; Atkinson v. Shirley; C&L Enterprises v. Citizen Band of Potawatomi; Interior Dept. v. Klamath Water Users; and Idaho v. United
States. Below a brief overview of three:
Nevada v. Hicks (2002) 121 S. Ct. 2304: A case decided by the United States Supreme Court on June 25, 2001. The Nevada vs. Hicks decision relied on two previous rulings, Montana vs. U. S. and Oliphant vs. Suquamish Indian Tribe. The Supreme Court held that the tribal court did not have jurisdiction to adjudicate state officials conduct in executing a search warrant to a tribal member for an off-reservation crime. More importantly the Supreme Court said in regards to the jurisdictional reach of tribal courts over non-members: "…tribal courts, it should be clear, cannot be courts of general jurisdiction in this sense, for a tribe's inherent adjudicative jurisdiction over non-members is at most only as abroad as is legislative jurisdiction." Id. At 2314.
In other words, absent a federal law providing tribal court jurisdiction over a particular cause of action, tribal courts lack jurisdiction to adjudicate actions over non-tribal members. The Hicks case provides a clear limitation of tribal court jurisdiction over non-members.
Montana v. United States, 450 U. S. 544 (1981): A case decided by the United States Supreme Court in 1981. This case addressed both the criminal and civil position of tribal government authority, finding that tribal governments do not have civil regulatory jurisdiction over non-Indian activities on fee lands or other privately owned lands inside the borders of tribal reservations. The High Court ruled that tribes simply do not have full regulatory authority over non-Indians. Moreover, the Supreme Court broadly stated that tribes do not have inherent jurisdiction over non-Indian civil matters at all, although tribal governments may regulate hunting and fishing on tribal lands. There are two exceptions in this ruling:
1. Citizens who enter into voluntary, consensual contracts with a tribe are bound and subject to tribal jurisdiction:
And/or when:
2. The civil activity of non-Indian citizens threatens the political integrity of the tribal government or the health,
safety, or security of the tribe.
Oliphant vs. Suquamish Indian Tribe, 435 U.S. 191 (1978): A cased decided by the United States Supreme Court in 1978 simply ruled that tribes have no inherent criminal jurisdiction over non-Indians.
Listed below are the strategies recently announced by the National Congress of American Indians to expand their sovereignty and jurisdiction over non-Indian citizens:
· Support and coordinate tribal advocacy before the Supreme Court
· Promote strategies for tribal governance that protect tribal jurisdiction. (Example: Jurisdiction over non-Indian water, air quality and taxes)
· Increase tribal participation in the selection of Federal judiciary.
· Develop a media and advocacy strategy to inform Congress, the public and tribal leadership about tribal governance.
· Implement a fundraising campaign to support National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF)