STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS:
“The fundamental principle that tribal governments have authority to exercise jurisdiction over their territory, just as other governments do, is being steadily eroded by the Court's rulings. “Notwithstanding the provisions of the U.S. Constitution proscribing discrimination on the basis of race, the Court seems to be consistently imposing limitations on the exercise of tribal government jurisdiction based upon the race and ethnicity of those over whom jurisdiction is exercised.”
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS:
“An Indian tribal government that can't legally defend its territory isn't a sovereign government at all. An Indian tribal government that is unable to levy a tax on a hotel or things of that nature that enjoy the benefits and the amenities of the tribe with the things that the tribe provides certainly cannot survive very long. “The advances of rehabilitating tribal economies will be reversed if tribes lack fundamental authority over people and events that are located on their lands.”
STATEMENT OF DAVID GETCHES, PROFESSOR, UNIVERSITY OF COLORADO AT BOULDER, SCHOOL OF LAW, BOULDER, CO:
“Now it became clear to me as I proceeded in this research that majorities of the Court were deciding cases in order to reach outcomes that satisfied them without basing their decisions on the precedents and principles that had guided their predecessors for 170 years.” “For instance, tribes suffered enormous losses when Congress embraced the allotment policy in the 1800's, the late 1800's, and the purpose there was to break up reservation lands, tribal lands, and distribute small parcels to every individual Indian, so that the remaining land could be distributed to homesteaders.”
“The Court has prevented tribes from trying non-Indians who commit crimes on the reservation. It's prevented tribes from regulating non-members hunting and fishing on the reservation. It's prevented tribes from zoning non-members' lands in parts of some reservations. It's prevented tribes from taxing guests in hotels on the reservation, and it's prevented tribal courts from hearing personal injury lawsuits by non-Indians who want to use the tribal courts, and from hearing suits by Indians who have tried to sue non-Indians in tribal court for torts committed against them in their homes on reservation lands owned by the tribe.”
“Tribal sovereignty, what did the Court say up until the mid-eighties? Indian sovereignty is not conditioned on the assent of non-members. Non-members' presence and conduct on Indian lands is conditioned by the limitations tribes choose to impose. That was the law until the mid-eighties. The 2001 case of Atkinson Trading Company said that Indian tribes can no longer be described as sovereigns in this sense.”
STATEMENT OF ROBERT ANDERSON, UNIVERSITY OF WASHINGTON, SCHOOL OF LAW, SEATTLE, WA
“But, more importantly than the particular provisions of the IRA, I think, is the philosophy that it sets out, and that philosophy is that in the United States there are three sovereigns, the United States, the States, and Indian tribes, and that Congress firmly supports the continued recognition of Indian tribes and the broad exercise of tribal powers through tribal courts and tribal institutions as tribes see fit.”
“Now the Supreme Court decisions in the Hicks case and the Atkinson case severely undermine the certainty that we have, or had, that the tribe could provide justice to all parties on the reservation, at least in the civil context. The Court has indicated that tribal courts may not have authority to hear cases that involve only non-Indian parties, of which there are a significant number on the Tulalip Reservation, who may wish to use the tribal court for dispute resolution.”
“The Clean Water Act provides an interesting example. It seems to me to provide for the exercise of delegated Federal authority. It has also been interpreted by the EPA to allow tribes to exercise their inherent authority over reservation lands, and EPA has taken its cue from Congress and interpreted the Clean Water Act quite liberally. It has provided tribes with treatment as a state in a number of cases, recognizing tribal inherent authority over their
reservations.”
“The Hicks and the Atkinson cases make it appear that the EPA may have to cabin its authority and recognition of tribal inherent authority. I think that would be a tragedy if it were to do so, but many state that that may be the case."
“Again, uncertainty caused by the radical shift in the Supreme Court's approach to these cases is causing many to reconsider what the baseline is anymore. I submit that this body is the appropriate one to act to correct that baseline, to reconfirm tribal authority over all land within the reservations and all people present within reservation boundaries.”
The Chairman. “Thank you very much, Professor.” “If I may proceed now with questions, Professor Getches, you have suggested the Rehnquist Court is not pursuing its own Indian policy, but advancing its agenda of states' rights, colorblind justice, and mainstream values. Now if this is accurate, how can you explain why the Court applies considerations of race and ethnicity in determining the scope of tribal jurisdiction?”
Mr. Getches. “Yes; there certainly is a paradox there, Mr. Chairman, in announcing a policy of colorblind justice and then bringing race into consideration as a major factor in its Indian decision making, but I would see this as part of an overall effort to limit the scope of what the Court views as special rights for one minority for Indian tribes and to make sure that that realm of special rights, as they see it, doesn't include or affect any non-Indians, non-members of that tribe."
“As they do that, it runs the risk of becoming, as Senator Campbell warned in his statement, tantamount to the treatment of a social club. The Elks Club or a college fraternity has the same level of ``sovereignty'' over its place and its members as an Indian tribe would under that kind of formulation. So, in a sense, they're making it colorblind by factoring out any residual governance that a tribe might have over people or territory that is not owned by it and members who are not participants in that tribal government.”
The Chairman. “Both of you have suggested that the Congress should do something about the present trend of the Rehnquist Court. What type of statute are you talking about, case-by-case or a statute of general application?”
Mr. Getches. “I think that looking case-by-case at what's been done and seeing whether Congress is happy with those results at a generalized level is the first step. Then legislation to undue the effects of unacceptable results is necessary.” “Second, a clarification of the jurisdictional situation on reservations. Third, a reaffirmation in a more general way of the foundational principles that were the formulation of the Supreme Court itself in the past. Give them back their own rules of decision and let them know that gap-filling will be done by the Congress and not by the Court.”
The Chairman. “Both of you have suggested that we should act on this trend. Can we impose upon both of you and call upon you for assistance in drafting appropriate legislation? We are not in the practice of overturning the Supreme Court. We have done that in some cases, like the Duro v. Reina case, but it is not common practice here. May we call upon both of you?”
Mr. Getches. “Well, in my case, certainly. I would be eager and honored, and I wouldn't consider it reversing the Supreme Court, but merely providing guidance”. [Laughter.]
The Chairman. “I do not think as a Member of Congress I should say that.” [Laughter.]
Senator Campbell. “Thank you, Mr. Chairman.” “It seems to me that they should have two sets of rights: that of being Native Americans as given in the treaties and that they inherit being an American, like any other American.”
Mr. Getches. “I think that you need to stay the course on dealing with these vital issues, but be much more directive in terms of the rules of decision. There isn't another area in constitutional law that I think of where Congress' power is more clear-cut and more sweeping than in Indian affairs, and it's time to act on that.”
Mr. Getches. “Yes; it is. I could read you worse language. I've collected it all, and it's frightening. It borders on racism.”
The Chairman. “I just have one more, but I would like to submit several other questions, if I may. It appears, as you have pointed out, both of you, that more and more the Court seems to be applying a principle that tribal exercise of criminal, civil, judicial, or regulatory jurisdiction over non-members would be inconsistent with the domestic status of tribal governments. Statutorily, do you believe we can prevent the Court from applying this principle?”
Mr. Getches. “The powers of Congress to legislate in this area may be limited if there is a constitutionally-based decision of the Supreme Court. One such decision apparently was the Court's decision in Smith, which the Congress tried to rectify--that's the Peyote case--with an act that re-established the strict scrutiny test for establishment of religion cases. That was struck down by the Court itself. You tried to remedy the situation. The Court said, no, this is a constitutional matter. But I think strictly within the realm of Indian affairs, the power is much greater. That dealt with the First Amendment and defining the constitutional powers under the Bill of Rights. But commerce clause powers belong to Congress. Even if the Court finds that constitutionally tribes never had a power, you can do it. You can restore those powers. Certainly even if a power didn't exist before, you could delegate it to an Indian tribe.”
STATEMENT OF WILLIAM C. CANBY, Jr., SENIOR JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PHOENIX, AZ
“I date it from what was a friendly decision of McClanahan back in the 1970's, where since the days of John Marshall, it had always been assumed that the States had no power in Indian country unless it had been affirmatively granted by Congress or by a treaty or something like that.”
“Then we went through the period of assimilation, and that was ended in 1934. The time of allotment ended in 1934. The time of termination came in the fifties, and that was ended, and we've already had reference to that. So by 1968, with the effective repeal of Public Law 280 by the Indian Civil Rights Act, and in 1970 by the Executive pronouncement of President Nixon, we had Congress and the Executive once again back on a historical track of protecting Indian self-determination. It's been buttressed by things like the Indian Self-Determination and Education Assistance Act.” “Justice Marshall said, well, if a foreign power tried to make a treaty with an Indian tribe, we might well consider that an act of war as a nation. Well, we still hear the phrase from the Supreme Court today that the tribes lost power over external relations, but what they now mean is that the tribe can only deal with its own members on its own land. It means that they can't deal with a non-Indian who's in Indian territory doing things there and is brought into tribal court. That is not an external relation within John Marshall's view of domestic dependent status. “Well, what happens is Montana becomes not the exception, but the rule. The rule is that tribes are presumed not to have regulatory power over non-Indians. “Well, that wasn't the holding, but it has become the rule that people talk about. So when we get to Strate, we have Justice Ginsburg saying, well, we've got to interpret very narrowly the exceptions to Montana because, if you interpret the effect on welfare broadly, it would swallow the rule. Well, this ignores the fact that Montana was supposed to be an exception to a rule. “What happened now, by interpreting the Montana exceptions, the exceptions to Montana narrowly, Montana has become the exception that is swallowing the rule, the rule being that tribes have power over their own territories and the people within it.”
“It isn't consonant with Congress' view that tribes are self-governing bodies with control over their territories.”
“The important point for the purposes of today, however, is that all 11 judges--there was no dispute--all 11 judges had no difficulty with the idea that this body has the ultimate power to decide what jurisdiction the tribes have, and the fact that there's been a Supreme Court decision which was overruled by this body is simply business as usual, because in non-constitutional matters the Supreme Court is simply operating until Congress speaks, and Congress had spoken. There's no question now that the tribal courts have that power, and the Supreme Court denied review of that 11-judge decision.”
Senator Campbell. “Thank you, Mr. Chairman. Thank you. Judge Canby, do you think your colleagues on the Federal Bench would be opposed to legislation that expanded tribal court jurisdiction over non-Indians if it allowed some form or review or appeal in the Federal courts?”
Mr. Canby. “No; I don't think they would be opposed.”
Senator Campbell. “Second, it is my understanding that Federal law requires Federal courts to implement arbitration decisions even if the Federal courts disagree with the result reached by the arbiters and even if they think the arbiter applied the law incorrectly. Could Congress require the Federal courts to implement tribal court rulings in a similar manner?”
STATEMENT OF ROBERT YAZZIE, CHIEF JUSTICE, NAVAJO NATION SUPREME COURT, WINDOW ROCK, AZ
“The Navajo Nation asks this committee today to commit itself and the Congress to work with Indian nations to resolve these jurisdictional problems by legislatively recognizing and affirming the inherent authority of Indian nations to regulate the activities of all individuals within their territorial jurisdiction.”
STATEMENT OF JOHN St. CLAIR, CHIEF JUSTICE, SUPREME COURT OF THE WIND RIVER RESERVATION, FORT WASHAKIE, WY
“When both Indians and non-Indians are involved in domestic violence, alcohol and/or drug-related disturbances, or other criminal activity, the tribes can only adjudicate the Indians while non-Indians, even when detained and turned over to State officials, go unpunished. This double standard of justice creates resentment and projects the image that non-Indians are above the law in the area where they choose to live or choose to enter into.”
“The third sovereign, America's third sovereign, the Indian tribes occupying Indian country, have come before you today to ask that you utilize the plenary power of Congress found in the Indian commerce clause, Article I, Section 8, Clause 3, of the U.S. Constitution and request that you restore and reaffirm the inherent and regulatory adjudicatory authority of tribes over all persons and all land within Indian country as defined in 18 U.S.C. section 1151.
This approach would place the exercise of jurisdiction in the hands of the tribes and the extent of it within their organic and case law, making it a question of tribal law.”
STATEMENT OF W. RON ALLEN, CHAIRMAN, JAMESTOWN S'KLALLAM TRIBE, SEQUIM, WA
“The Atkinson case with regard to, can we tax? And it's saying absolutely not, you cannot tax non-Indian businesses on Indian lands.”
“Are the county governments or State governments going to help out? No, they're not. They have other priorities.”
“So we're asking this Congress to move forward. Our tribal leaders are gathering to organize methodically and deliberately, crisscrossing the Indian country, for a solution that we would like to offer to this committee and to this Congress to help correct this problem. We look forward to your help. We have appreciated your support, and we hope that we can come back to propose a piece of legislation that will correct the errors and misunderstandings of the Supreme Court. Thank you, Mr. Chairman.”
The Chairman. “I have been on this committee now for over 25 years. Somehow I get the feeling, and this is a very ugly feeling, that, right or wrong, these decisions of the Supreme Court have been rendered because Indians are considered inferior people. Is that a fair statement, that this is racism?”
Mr. St. Clair. “Chairman Inouye, I do believe there's a feeling that Indians are inferior within these Supreme Court decisions.” “I believe that overall this sense of feeling that tribal governments and tribal people are inferior is still there within the Supreme Court of the United States…”
Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
“At the same time, Supreme Court decisions have been moving in the opposite direction, finding that tribal sovereignty, particularly over non-Indians in tribal communities, is inconsistent with tribes' ‘dependent status.’ These recent rulings are inconsistent not only with the legislative and executive trends toward self-governance, but also with Supreme Court precedent itself. Indeed, the fundamental principle of Indian law, which was set by Worcester v. Georgia in 1832, is that Indian tribes maintain their sovereign rights except when explicitly limited by treaty or Federal law.”
“Tribal governments need the power to tax and to enforce laws, and Supreme Court rulings have negatively affected their power to do both."
“Reservation boundaries often include a mix of tribal and non-tribal members and a mix of trust and fee simple land. If the courts rule that tribal jurisdiction depends on qualities like status of the land within the reservation boundary, tribal membership, or race, then we must seriously consider the implications of these limits on jurisdictional authority.”
Prepared Statement of Robert T. Anderson, Assistant Professor of Law, Director, Native American Law Center, University of Washington School
of Law, Seattle, WA
“The Court's ruling in Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978) stripped tribes of criminal jurisdiction over non-Indians and signaled the rise of the Court as the lawmaking body with regard to tribal authority over non-Indians.”
“In tandem with the Indian Commerce Clause of the U.S. Constitution, the basic principle set out in these cases is that Indian tribes are free to govern themselves and others who enter their territory to the exclusion of State power.”
“Important to the Supreme Court in all of these cases was the bedrock presumption that Indian country is beyond the reach of State courts and state jurisdiction, unless and until Congress provides otherwise.”
“The Court's recent course has not just been a reversal of the fundamental rules of Indian law, it has also usurped the role of Congress as the policymaking body in the area of Indians affairs. What is truly remarkable is that the Court has taken this course in the midst of an era of unprecedented support for Indian tribes and their authority.”
“Congress has always led the way in setting Federal Indian policy as provided in the Constitution. I respectfully suggest that Congress should act to correct the Supreme Court's mistaken notions of what is best for governance in Indian country. This should be done with deliberation and full consultation with Indian tribes.”