By Darrel Smith
February 23, 2002
Several recent Supreme Court decisions have been very encouraging. In the recent
Nevada v. Hicks case, the Supreme Court allowed state wildlife officials to
enter a reservation to enforce state regulations that had been violated off of
the reservation.
In the Atkinson Trading Co. v. Shirley, the Supreme Court declared that the
exceptions that allow tribal government jurisdiction over non-members listed in
the 1981 Montana v. United States case really are exceptions. The 1981 Montana
case limited tribal jurisdiction over non-members to exceptional situations:
"A tribe may regulate, through taxation, licensing, or other means, the
activities of nonmembers who enter consensual relationships with the tribe or
its members, through commercial dealing, contracts, leases, or other
arrangements." "A tribe may also retain inherent power to exercise
civil authority over the conduct of non-Indians on fee lands within its
reservation when that conduct threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of the
tribe."
Since the Montana case, tribes have been arguing that essentially everything
falls under one or more of these exemptions and lower courts have had a tendency
to agree with them. The history of the Atkinson Trading Co. v. Shirley case is
instructive. Atkinson lost in tribal court, tribal appellate court, U.S.
district court, and U.S. appellate court before winning with a 9-0 decision from
the U.S. Supreme Court. The Supreme Court in its Atkinson decision appeared to
be frustrated with this situation and wrote an opinion stating that the
exceptions in Montana really are limited exceptions and don't obliterate the
general rule restricting tribal authority over non-Indians.
When the Supreme Court decides an issue, most individuals and groups in this
country consider the issue settled. The reaction of the tribal establishment to
recent Supreme Court decisions clearly demonstrates their level of respect for
the Court, their agenda and the importance they attach to their agenda.
On August 24, 2001 the Navajo tribal council approved a Policy Position by a
vote of 62-0-0, "in preparation for presentation at several regional
inter-tribal meetings, including, a Tribal Leaders Forum scheduled on September
11, 2001 in Washington D.C., sponsored by the Native American Rights Fund,
National Congress of American Indians and the National American Indian Court
Judges Association. In this Policy Position the Navajo Council "encourages
all Indian Nations to unite as one. To work with the U.S. Congress. Congress
must recognize that sovereignty as absolute." The Policy
Position defines Indian Country "as (a) all land within the limits of any
Indian reservation. (b) all dependent Indian communities within the borders of
the United States. and (c) all Indian allotments.." It goes on to
state that "dependent Indian community must be clarified to mean any area
which is Indian in character by reason of population patterns and the existence
of distinct Indian communities, including all areas outside a given Indian
Nation's reservation and in areas where federal services are provided to
Indians, regardless of tribal membership or land status."
The Policy Position asks for "Congressional response to recognition of
Indian Nation's regulatory authority in hunting and fishing, leasing and
rights-of-way. A congressional recognition of civil authority to Indian Nations
including the right to tax and regulate all commercial activities taking place
within the exterior boundaries of Indian country. State jurisdiction to tax any
activity whether engaged in by Indians or non-Indians must be
extinguished.." "In addition, Congress must enact legislation
that ensures a substantive tribal role in the confirmation of all federal judges
who adjudicate Indian Country matters." "[T]he United States
Government. should recognize an Indian Nation's inherent criminal jurisdiction
over all persons and offenses committed in Indian Country." The Council
states that, "The spirit of Indian nations is so powerful that no one can
diminish it if we stand together."
Because of changes in federal Indian policy and expanding reservations, several
hundred thousand non-Indians currently live on Indian reservations. Note also
that these demands apply to "Indian Country" which includes
"dependent Indian communities" and these communities "mean any
area which is Indian in character." Thus, they might apply to sections of
many of our major cities and other off-reservation communities.
The Tribal Leaders Forum did meet in Washington D.C. on September 11th and
according to the National Congress of American Indians' web site they
"reached a consensus to begin an organized effort to halt and reverse the
Supreme Court's erosion of tribal sovereignty. Recognizing that this effort must
be comprehensive in its approach, the leadership laid out an overall strategic
plan. This plan is very ambitious and it was made clear that in order to achieve
these goals, Indian Nations must unify and commit time, resources and effort on
a great scale. In summary, the strategic plan is as follows:
I. Develop Federal Legislation to Reaffirm Tribal Jurisdiction
II. Form a Supreme Court Project to Support and Coordinate Tribal Advocacy
Before the Supreme Court
III. Promote Strategies for Tribal Governance that Will Protect Tribal
Jurisdiction
IV. Increase Tribal Participation in the Selection of Federal Judiciary
V. Develop a Media and Advocacy Strategy That Will Inform Congress, the
Public and Tribal Leadership About Tribal
Governance and will Promote the Overall Initiative
VI. Implement a Fundraising Campaign to Support NCAI and NARF and Related
Expenses in Promoting the Initiative"
"At the meeting, tribal leadership from every region of the country
concluded that they must initiate a unified national effort to protect tribal
sovereignty in the face of the threats posed by the Supreme Court. It was made
very clear that tribal leaders must put forward a great collective effort for
this initiative to succeed. Four national tribal organizations, NCAI, NARF,
the National American Indian Court Judges Association and the National Indian
Gaming Association coordinated in
putting together the first meeting, and we invite all other tribal organizations
to join with us."
The Fed. Bar Assn.'s 27th Annual Indian Law Conference in Albuquerque, April
4-5, 2002, is another example of the tribal response to these recent Supreme
Court decisions. It is entitled "Reaffirming Tribal Sovereignty in an Era
of Judicial Activism". One of the principle panels will be discussing
the status of tribal jurisdiction over non-Indians. The conference will be
evaluating various tribal proposals to overturn Nevada v. Hicks and find a
"congressional fix" to give tribes increased civil and criminal
jurisdiction over non-Indians.
The tribal establishment is aggressively demanding exclusive race-based
governments in racially defined territories not only to rule their own affairs
but also those of other races even though these other races are excluded,
because of their race, from all political participation in tribal government.
With recent decisions, the Supreme Court has acknowledged this as a problem.
Unfortunately, many of this country's elites in academia, the media and Congress
are supporting tribal demands. Are "Indian nations so powerful that no one
can diminish" them? We may soon see.
Also: Is this America's Future? by Darrel Smith