February 28, 2003
Expanding authority of tribal government high on NCAI agenda
Native American Press/Ojibwe News
By Clara NiiSka - 

The Executive Council of the National Congress of American Indians (NCAI) met in Washington, D.C. on February 23-27. The theme of this year's meeting, "Defining Our Agenda - Reflect, Refocus, Renew," reflects NCAI's "desire to engage tribal representatives in shaping a concrete agenda for the 108th Congress," according to the group's printed agenda for the meeting.

The "Tribal Sovereignty Protection Initiative" (TSPI) is high on the NCAI's agenda. Launched largely in response to the U.S. Supreme Court's rulings in two cases that court heard in 2001, Atkinson Trading Company v. Shirley and Nevada v. Hicks, the goal of the TSPI is to pass legislation affirming that "Indian tribes retain their inherent right to govern all people and places within Indian country unless that power has been specifically limited by treaty or federal statutes." In a position paper posted on its website at http://www.ncai.org, NCAI expresses "strong concerns that the Supreme Court is on an accelerating trend toward removing tribal jurisdiction over the conduct of non-Indians within tribal territory. . The most recent Supreme Court cases make it clear that tribal governments are in an increasingly defensive posture in the federal courts, and it is likely that the upcoming years will prove to be even more damaging if this defensive posture is maintained."

The strategies adopted by the TSPI to "halt and reverse the Supreme Court's erosion of tribal sovereignty" include projects to:
· Develop federal legislation to reaffirm tribal jurisdiction
· Form a Supreme Court project to support and coordinate tribal advocacy before the Supreme Court
· Promote strategies for tribal governance that will protect tribal jurisdiction
· Increase tribal participation in the selection of the federal judiciary.
· Develop a media and advocacy strategy to inform Congress, the public, and tribal leadership about tribal governance and that will promote the overall initiative, and
· Implement a fundraising campaign to support NCAI and NARF [Native American
Rights Fund] and their related expenses in promoting the initiative.

Tex Hall, president of the NCAI, co-chairs the TSPI along with Navajo president Joe Shirley. TSPI is working in close collaboration with NARF executive director John Echohawk. U.S. Senator Daniel Inouye (D-Hawaii), vice-chairman of the Senate Indian Affairs Committee, is among the group's strongest allies in Congress. In a speech made at NCAI's executive council meeting on Monday, February 24, Inouye promised to introduce legislation promoting TSPI's agenda, to be included as a part of a "homeland security" package. "Homeland security presents an opportunity," Inouye said, "to secure a status under federal law that will not only recognize your powers and responsibilities as sovereign governments but will strengthen your position and your status ."

TSPI's proposed legislation:
The legislation drafted by TSPI, tentatively titled the "Tribal Governance and Economic Enhancement Act," is said to be "now ready for introduction" by lobbying firm Legi\X. It delineates Congressional action granting Indian tribal governments "all sovereign governmental authority and powers" extended to "all places and persons within its Indian country," as well as off-reservation sovereign immunity and jurisdiction over tribal hunting, fishing, gathering, "or other right."

The proposed expansion of tribal government jurisdiction includes: "Legislative powers. Authority and powers to establish a form of government, by constitution or otherwise, to legislate concerning all matters within their territorial jurisdiction. "Civil regulatory powers. Authority and powers to exercise civil regulatory powers, including taxation, within their territorial jurisdiction. "Civil adjudicatory powers. Authority and powers to adjudicate all civil disputes arising within their territorial jurisdiction. "Criminal adjudicatory powers. Authority and powers to try violations of applicable criminal laws by any person within their territorial jurisdiction."

Legal analysis
An attorney who reviewed TSPI's proposed legislation at the request of Press/ON dubbed it the "Hicks Fix," and wrote that it would create "widespread changes in Indian tribal government jurisdiction, state sovereignty, etc.

"Basically, this legislation would reverse numerous United States Supreme Court cases, grant tribes broad jurisdictional powers, limit state jurisdictional powers, provide for limited federal review of some tribal court decisions, and make other changes.

"With regard to tribal powers, Section 5(b) would give tribes 'all sovereign governmental authority and powers' within their 'territorial jurisdiction.' Territorial jurisdiction would be: (a) any and all places and persons within Indian country; (b) over the exercise of valid hunting and fishing rights, including sovereign immunity, outside of Indian country; and (c) over persons, activities or events having 'sufficient minimal contacts with a tribe's territorial jurisdiction to meet the requirements of due process.' "With regard to territorial jurisdiction, Indian Country would mean all land within the limits of an Indian reservation, including privately owned lands and state or other rights-of-way. Additionally, tribes would apparently have full jurisdiction, and state jurisdiction would be curtailed, on any matter involving hunting and fishing rights outside of reservations. Presumably, this would give tribes broad authority to decide where and how those rights were to be exercised.

"Finally, there is a 'minimum contacts' provision that allows jurisdiction to be exercised outside of the tribe's reservation, similar to the minimum contacts test to determine whether someone can be required to appear in a particular state to defend their actions. For example, an argument could be made that a person residing outside the reservation, who contracts with someone inside the reservation, could be subject to tribal jurisdiction. Similarly, someone manufacturing and selling a product outside the reservation to someone inside the reservation could be subject to tribal jurisdiction.

"Tribal jurisdiction is not only general [under the proposed TSPI legislation], but is specifically designed to include all legislative
powers, all civil regulatory powers (including taxation), all civil adjudicatory powers (the right of courts to hear and decide matters), and all criminal adjudicatory powers. These would extend to both Indians and non-Indians.

"There is a provision for limited federal review of decisions of tribal courts, but the power to review is limited to violations of the Indian Civil Rights Act, interpretation of federal law and whether the tribal court has jurisdiction. Even in that instance, jurisdiction does not extend to matters related to tribal elections, tribal enrollment, or other 'internal' matters.

Presumably the federal court would not have the ability to question the legislative or regulator enactments of a tribe, unless they violated the Indian Civil Rights Act of 1968. Tribal interpretation of tribal law could not be challenged. Tribal court fact findings could not be reversed unless 'clearly erroneous.' As to the jurisdiction of the tribal court, since it is such a broad authority, there would be few instances, if any, when the federal court could reverse that determination.

"Basically, this is an effort to saddle non-members with the burdens, but not the benefits, of tribal governmental authority. Essentially, Congress would determine that both members and non-members residing within the boundaries of an Indian reservation would be subject to the powers of the tribal court that would not have to follow the United States Constitution or the Bill of Rights.

Section 6(a) would divest states of jurisdiction within Indian Country, but apparently does not prohibit states from 'provid[ing] services within Indian country.' Even if the state provides such services, however, they are now subject to concurrent state and tribal jurisdiction. "There are a number of other provisions of the Bill that are bound to be controversial. ."

What next?
As this issue of Press/ON went to press, Inouye had not yet introduced the proposed bill. (Legislation pending before the U.S. Congress can be tracked online through the Library of Congress' legislative information website at http://thomas.loc.gov/ .)

Amid the patriotism building as the Bush administration moves closer to war, a bill bundled with "homeland security" measures may not be too closely scrutinized nor thoroughly debated. Promoted by well-organized lobbying efforts, and perhaps lubricated by tribal PAC contributions, uncritical Congressional enactment of NCAI's TSPI agenda is not wholly unlikely.

If such legislation is enacted into federal law, legal challenges in at least two areas are almost certain. The proposed TSPI legislation sharply limits federal review of tribal court decisions, using "alleged violations of the Indian Civil Rights Act" (ICRA) as one of the standards. Although the U.S. Supreme Court has avoided striking down the abridgements of constitutionally-protected civil rights imposed by the ICRA so long as the only people whose civil rights were limited were "Indians," specifically tribal members, the TSPI bill proposes generally extending tribal jurisdiction - absent constitutionally guaranteed civil rights - to all persons within the external boundaries of Indian reservations, as well as to individuals clearly within the geographic jurisdiction of states.

Will the U.S. Supreme Court reverse its rulings in Atkinson and Hicks in the event of such challenges to "Hicks fix" legislation? The other likely grounds for challenges - even backlash - in response to TSPI legislation have been relatively dormant: state's rights. 

Underneath the rhetoric advocating 'tribal sovereignty' there is the reality that the authority of contemporary tribal governments depend heavily on the executive branch of the federal government, particularly the Secretary of the Interior. If Congress enacts such legislation, it is extremely likely that at least one of the fifty states will react strongly to what could be construed as a sweeping usurpation of states' rights.

Where is the balance between the "inherent powers" of tribal governments, and states' rights? If NCAI and NARF's present lobbying efforts are successful, the U.S. Supreme Court may rule on that very question in two or three years.