[Senate Hearing 107-338]
[From the U.S. Government Publishing Office]
S. Hrg. 107-338
RULINGS OF THE U.S. SUPREME COURT AS THEY AFFECT THE POWERS AND
AUTHORITIES OF THE INDIAN TRIBAL GOVERNMENTS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
CONCERNS OF RECENT DECISIONS OF THE U.S SUPREME COURT AND THE FUTURE OF
INDIAN TRIBAL GOVERNMENTS IN AMERICA
__________
FEBRUARY 27, 2002
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
78-250 WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota
JOHN McCAIN, Arizona, HARRY REID, Nevada
PETE V. DOMENICI, New Mexico DANIEL K. AKAKA, Hawaii
CRAIG THOMAS, Wyoming PAUL WELLSTONE, Minnesota
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
Statements:
Allen, W. Ron, chairman, Jamestown S'Klallam Tribe, Sequim,
WA......................................................... 30
Anderson, Robert, University of Washington, School of Law,
Seattle, WA................................................ 10
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs................. 2
Canby, Jr., William C., senior judge, U.S. Court of Appeals
for the Ninth Circuit, Phonix, AZ.......................... 19
Getches, David, professor, University of Colorado at Boulder,
School, CO................................................. 4
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman,
Committee on Indian Affairs................................ 1
St. Clair, John, chief justice, Supreme Court, Wind River
Reservation, Ft. Washakie, WY.............................. 28
Yazzie, Robert, chief justice, Navajo Nation Supreme Court,
Window Rock, AZ............................................ 26
Appendix
Prepared statements:
Allen, W. Ron................................................ 51
Anderson, Robert............................................. 40
Canby, Jr., William C........................................ 44
Cantwell, Hon. Maria, U.S. Senator from Washington........... 39
Getches, David (with attachments)............................ 55
St. Clair, John.............................................. 43
Yazzie, Robert............................................... 86
RULINGS OF THE U.S. SUPREME COURT AS THEY AFFECT THE POWERS AND
AUTHORITIES OF INDIAN TRIBAL GOVERNMENTS
----------
WEDNESDAY, FEBRUARY 27, 2002
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 2:02 p.m., Hon.
Daniel K. Inouye (chairman of the committee) presiding.
Present: Senators Inouye, Campbell, Cantwell, and Thomas.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Well before this country was founded, Indian
nations exercised dominion and control over approximately 550
million acres of land. Their governments pre-existed the
formation of the U.S. Government, and, indeed, were so
sophisticated that the framers of the U.S. Constitution modeled
what was to become America's governmental structure after the
Government of the Iroquois Confederacy.
The recognition of the Indian tribes as sovereign
governments has its origins in the Constitution of the United
States, which in Article III, Section 8, Clause 3, provides
that, ``The Congress shall have the power to regulate commerce
with foreign nations and among the several States and with the
Indian tribes.''
From that time forward, this status of Indian tribal
governments as separate sovereigns has informed the laws
enacted by the Congress and signed into law by the President
for over 200 years, and until relatively recently, has served
as the foundation for the rulings of the U.S. Supreme Court.
In the early 1830's the U.S. Supreme Court's Chief Justice
John Marshall articulated the fundamental principles upon which
the body of Federal Indian law would be constructed in a series
of cases that are now referred to as the Cherokee cases.
Yesterday this committee received testimony from Professor Reid
Chambers, who observed that at the time of Chief Justice
Marshall's rulings, the Cherokee Nation had a written
constitution, an elected bicameral legislature, a tribal
judicial system, schools, an established military, a written
language, and a much higher adult literacy rate than any State
of the Union at that time.
Today tribal governments have not only discarded the mantle
of ``ward'' to the United States ``guardian'' of Chief Justice
Marshall's day, but have assumed a wide range of government
responsibilities that were formally the exclusive province of
the National Government.
Although Federal policies have vacillated and congressional
acts have reflected those changes in policy, beginning in 1934
with the enactment of the Indian Reorganization Act, and
reinforced in 1970 with the establishment of the Federal Policy
of Native Self-Determination and Tribal Self-Governance, two of
the three branches of the U.S. Government have consistently
acted in concert to reaffirm the legal status of Indian tribal
governments as sovereign governments.
We are here today because there is a third branch of the
U.S. Government, the Judicial Branch, that appears to be headed
in a decidedly different direction than the other two branches
of the National Government. If there were a few aberrations
from the Supreme Court precedent and Federal statutory law, one
might not have cause for concern, but those that study the law
and the rulings of the U.S. Supreme Court instruct us that the
Court is on a steady march to divest native governments of
their governmental powers and authorities.
Principles long and well-established, such as the fact that
tribal governments retain all of their inherent sovereign
powers and authorities not relinquished by them in treaties or
abrogated by an express act of the Congress, appear to have
been cast aside. 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.
The historical foundations of the relationship between
sovereign governments, the Federal, State, and tribal
governments, appear to no longer have any legal import in the
Court's rulings.
Last, but certainly not least, from the perspective of the
branch of the government that the U.S. Constitution charges
with conducting relations with foreign governments, the several
states, and Indian tribes, the Congress--one is hard-pressed to
find reference in the Court's opinions to the context in which
the rest of America is operating; namely, Federal laws and the
policies they reflect.
So today the committee has called upon a few of the many
experts who have, through their writings and scholarly
discourse, instructed us that there is cause for alarm, and
have urged the Congress to act. With that, I am pleased to call
upon the vice chairman for his remarks.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Campbell. Thank you, Mr. Chairman, for that very
fine statement. I think it is important that statements like
yours remind people that Native Americans' ability to govern
themselves didn't start with the Movie ``Dances with Wolves.''
Indeed, I live about maybe 40 miles east of what's commonly
called the ``cliff dwellings'' of Mesa Verde. People lived
there about the time that Christ walked the Earth, and they had
a form of government. They were there 400 years before Columbus
landed on the shores of the Caribbean Islands. They had a form
of government then, 400 years before Columbus got here.
And they weren't the only ones. If you look at two other of
the really ancient cultures that thrived about that time,
Cahokia, which is in Missouri south of St. Louis, and
Tenochtitlan, which the city of Mexico City was built on the
ruin of Tenochtitlan, they were thriving communities as large
as any community in Europe at the time. They had forms of
government.
The tenets of all those ancient forms of government with
Native Americans were really based on just three or four: The
belief in the family, the relationship with their natural
surroundings, and their belief in creative force. I guess I am
just continually amazed that so much transpires in America that
deals with Federal-tribal relationships when all those years
and those centuries, eons and eons of time, are just discarded,
like they weren't important in the scheme of things when we
deal with tribal self-governance. So I thank you for that
statement.
At yesterday's hearing on Indian trust management reform,
we heard from distinguished legal scholars about the legal and
political foundation of the Federal-tribal relationship. We
heard about Chief Justice John Marshall, who we credit with
firmly establishing the role of the U.S. Supreme Court in the
Federal system and the role he played in Indian jurisprudence,
as you have mentioned.
The pendulum of Federal Indian policy has been swinging
back and forth right from the beginning of our Republic:
Treaties, relocation, reservations, allotment, assimilation,
termination, and to the current policy of self-determination.
But Indian self-determination is more than a slogan to be
carelessly thrown around. Chief Justice Marshall's decisions
are grounded in it, and President Nixon knew what it meant in
1970, when he issued his famous Special Message to Congress on
Indian Affairs.
Local decisionmaking is important. It is an important part
of Federal Indian policy, but it's an important fact to many of
us here in Congress, too, and that's why we believe in states'
rights and local jurisdiction and the ability of people to make
their own decisions at the local level. It is really the core
of the principles of American freedoms to me and many of us
that are here.
It is also a key concept because it works. Local
governments know best what works for their citizens, and Indian
tribes are no different in this respect than any other local
government. As important as the legal tenets of Federal Indian
law and policy are, I'm just as concerned with the practical
results that the recent decisions of the U.S. Supreme Court
will have on that policy and on the future of Indian tribal
governments in America.
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.
In short, I feel, if left unchecked, the philosophy and
reasoning of the Supreme Court cases will mean that in fairly
short order Indian tribes will be left with very little, if
any, powers at all. If this trend continues, the current vigor
of Indian tribal governments will be a distant memory, and the
tribes themselves will become little more than social clubs or
mechanisms for funding Federal dollars to Indian people.
The advances of rehabilitating tribal economies will be
reversed if tribes lack fundamental authority over people and
events that are located on their lands. Massive
refederalization on Indian issues will take place, which is not
healthy for the tribes, for tribal members, or local citizens,
or the taxpayer. This result is not, in my view, what the U.S.
Constitution sets out envisioned, and does not represent the
views of, I believe, the majority on this committee or in
Congress generally.
With that, Mr. Chairman, I'd ask unanimous consent that my
formal statement be included in the record, and I look forward
to the hearing with our witnesses today.
The Chairman. Without objection, so ordered.
Today we are honored to have the greatest legal minds of
this land on matters involved in Indian affairs. For the first
panel I call upon Professor David Getches, of the University of
Colorado at Boulder, School of Law, and Professor Robert
Anderson, of the University of Washington School of Law,
Seattle.
STATEMENT OF DAVID GETCHES, PROFESSOR, UNIVERSITY OF COLORADO
AT BOULDER, SCHOOL OF LAW, BOULDER, CO
Mr. Getches. Thank you very much, Mr. Chairman, Senator
Campbell. It is a pleasure to be here, and I am pleased to have
an opportunity to talk about an issue of extreme importance to
those of us who have been involved in Indian law for many
years, and certainly to all people of Indian country.
The current U.S. Supreme Court has made an astounding shift
in its Indian law jurisprudence. It has disregarded 170 years
of Supreme Court precedent. It has undermined the congressional
policy of political and economic self-determination for
Indians, and these decisions affect the lives of every
reservation Indian, making reservation life less secure and
reservation futures less promising.
Now the travesty of mismanaged Indian trust funds is well-
known, but the Supreme Court's assault on the foundations of
Indian law and on congressionally-mandated Indian policy is
virtually unknown outside Indian country, but the effects of
the Supreme Court's actions promise to be deeper and longer
lasting.
Now I've been a student and a teacher and a practitioner of
Indian law for over 30 years now. In the nineties we have
witnessed a sea change in Indian law. We have found that Indian
law in the Supreme Court is heading in a radical new direction.
I began researching why this was several years ago. I did
this reading painstakingly all the opinions of the Court and
then spending a summer here at the Library of Congress going
through the files that had been made available by the late
Justice Brennan and Justice Thurgood Marshall. The first
revelation I had in looking at these records was that the
internal memos showed that for some Justices on the Supreme
Court Indian law was seen as a field with no anchors, with no
guiding principles, or moorings. The memos, internal, private
memos, showed an unabashed concern with setting things right in
Indian country, with taking to task the decisions of the past,
and applying the present values of these Justices, as if the
opinions of the past had been grounded in no principles at all.
As your statement, Mr. Chairman, and the statements of
Senator Campbell indicated, those earlier opinions were,
indeed, grounded in long tradition of Supreme Court precedent,
going back to the early 1800s and the decisions in three major
cases by Chief Justice John Marshall.
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. But other than the fact that
the whole exercise was subjective, as I indicated in a 1996
article, I couldn't find any new philosophy or set of
principles that gave coherence to the Court's decisions.
Eventually, I turned my attention to the work of
constitutional scholars and looked beyond my own expertise in
Indian law and found in the full array of cases, the cases
going well beyond Indian law, that there were three themes or
trends that explained nearly every decision of the Court since
the mid-1980's, not just in Indian law. They describe a set of
values that the majorities favor, and these values are not
specific to Indian law. The three value-based trends are,
first, a commitment to the rights of states; second, a belief
that the law must be colorblind, and, third, a desire to
support mainstream values.
Now each of these trends sweeps with them nearly every
Indian case. As I am sure is obvious to the members of the
committee, States are adverse to Indians in nearly every Indian
case in the Supreme Court. Colorblind justice may stand for
principles that are important to members of the Court in
affirmative action settings, but Indian laws are not about
affirmative action. That's about a government-to-government
relationship.
Mainstream values, Indians may have lifestyles and
religions that are different, but it's not the same as the
perception of being ``out of step'' that the Court might see in
other contexts. These trends are robust, accounting for the
Court's outcomes in virtually every case. I would like to offer
today this article that does the analysis. I expect that, in
the interest of time, we ought not to go over all 80 pages of
this very interesting article, but I will offer it for the
committee and your record.
The Chairman. It will be part of the record.
Mr. Getches. Now when you look at the work of the Court
since the mid-1980's, the most striking reality is that Indians
lose. On the chart that I have put up here, you can see the
blue lines stand for cases, or rather percentages of cases, in
each term of the Court since 1958 to the term 2000-2001. The
red lines stand for percentages of losses. As you can see, the
red lines are much more prevalent at the more recent end of the
chart. The black is a trend line showing the trend of
decisions, a trend against Indians.
Now if, for purposes of comparison, it is helpful to look
at other courts, what I have done is compared the Rehnquist
Court, which really began in 1986, with its predecessor, the
Burger Court. This pie charts show that in the Burger Court,
Indians were winning 58 percent of the cases. In the Rehnquist
Court, almost equal number of terms of Court, Indian tribes are
winning on 23 percent of the cases that come before the Court.
Now the differences here are striking. In trying to
understand what is going on here, I ask myself, is this
extraordinary or are there other groups of litigants, other
types of interests, or other subject matters of cases, where
litigants have done as badly as Indians. I looked at
possibilities ranging from immigration to criminal cases, and
the worst record I found for any litigants other than Indians
was convicted criminals seeking reversals of their convictions.
I found that convicted criminals won 34 percent of the time
while Indian tribes have won only 23 percent of the time.
Nobody does worse in this Supreme Court than Indian tribes.
These decisions are not only bad on a win/loss ratio. These
decisions are major departures from Indian law as it was
developed and articulated by the Court from the very foundings
of this Nation until the 1980's. The basic rules were
straightforward. You mentioned the foundational principles and
cases in your statement, Mr. Chairman. The foundation
principles are summarized here. Tribes are sovereigns. Tribes
became subject to the legislative power of the United States
and lost their external sovereignty by being incorporated into
the United States, but retained tribal powers can only be
qualified by congressional legislation or treaties. This is
laid out in the Marshall trilogy, those three leading cases
from the early 1800's.
Now not all of these principles have always pleased Indian
tribes. The Indian law scholars, Indian tribal leaders and
their attorneys have not liked the idea that, just by virtue of
planting an American flag on the shore of North America, the
right to squelch and diminish tribal powers was gained by the
Europeans. But, be that as it may, this doctrine of plenary
congressional power has been reiterated by the courts, and
tribes have learned to live with it.
They have learned that it can be a barrier against the
intrusion of State governments into their territories. Tribes
have also suffered under this plenary power doctrine. Congress
has not always been generous with Indian tribes.
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. This policy proved to be an abject disaster.
Congress recognized that, but not for almost 50 years.
Eventually, Congress reversed the policy with the Indian
Reorganization Act policies that you mentioned, Mr. Chairman.
Now the ensuing period was more benign, but then again in
the 1950's Congress went astray, if I may say, and abruptly
changed the course of Indian policy. Termination became the
policy of that era. The idea was to end the Federal
relationship with the tribes of the United States and divide up
the property of the tribes, again assimilation.
Now this took an enormous toll on 100 Indian tribes, but
the courts didn't alter it. The courts didn't alter the
allotment policy. The courts deferred to Congress. It was
Congress that reversed again the termination policy after 15
years of failure. It took 20 years to make things right and
restore tribes to their original status; that Congress did, but
without any encouragement from the courts.
Now since then tribal governments have rebuilt. Some are
strong, healthy governments. Others are struggling to overcome
a myriad of disadvantages. Congress has decided to support
tribes in their successes and allow them their occasional
missteps. Tribes have begun to find their footing, and their
cultures, bruised by ill-considered policies of the past, are
gaining new strength.
During the last 30 years of its self-determination polity,
Congress has passed dozens of bills to support the ideal of
self-determination, and those bills are enumerated, or many of
them, in the footnotes to my written testimony that I submitted
earlier. Bills, great pieces of legislation, like the Indian
Self-Determination Act, the Indian Child Welfare Act, the
Native American Graves Protection and Repatriation Act, the
list is very long, and it's a tribute to the work of this
committee and to the unflagging policy of Congress during this
period.
Meanwhile, the Rehnquist Court has decided case after case
against the very principles and policies that the Congress has
sought to advance. Instead of recognizing the will of Congress,
the Court has strained to give effect today to the policies of
yesterday. The allotment policy, for instance, has been a
dominant force in the decisions of the current Court.
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.
Now just compare how the Rehnquist Court looks at these
issues of tribal sovereignty and powers. I have put up here
some quotes from the earlier Burger Court and the Rehnquist
Court. On tribal powers, the modern era Burger Court said:
Until Congress acts, the tribe retains existing powers of
sovereignty. That's the law as it has always been.
A 1997 case, Strate v. A-1 Contractors, our case law
establishes that, absent express authorization by Federal
statute or treaty, tribal jurisdiction exists only in limited
circumstances, an exact shift in position.
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.
Look at the shift with respect to tribal courts. In 1987,
Iowa Mutual, civil jurisdiction over non-member activities
presumptively lies in tribal courts. 2001, Justice Souter
concurring in the Hicks case says:
A presumption against tribal court civil jurisdiction
squares with one of the principal policy considerations
underlying Oliphant:
The earlier criminal jurisdiction case.
What does the present Court say about congressional intent
compared to its predecessors? How do they look on the policies
of this Congress? In the modern era, the period up until the
mid-1980's, the Court said things like this in Bryan v. Itasca
County:
Courts are not obligated in ambiguous circumstances to
strain to implement an assimilationist policy Congress has now
rejected.
Look at what the Court now says. In the Brendale case, it
said that:
When an avowed purpose of the allotment policy was the
ultimate destruction of tribal government, we can find no
tribal jurisdiction.
You see, the Court in the 1970's not ready to look back at
repudiated policies of Congress, and you see the Court in 1989
looking farther backward to the allotment policy as its
touchstone for its decisions.
Now let's look at a couple of these recent cases and what
their impacts are. The Brendale case, which I just quoted,
involved two non-Indian landowners on the reservations. Both of
them wanted to build multi-unit housing developments on the
Yakima Reservation. Now the tribe, the Yakima Nation, has for
many years had its own zoning laws. Later on the county adopted
its zoning laws. The county, under its zoning laws, would make
possible these multi-unit developments on the Yakima
Reservation. The Yakima zoning regulations would not.
Now the U.S. Supreme Court decided that the applicable
zoning for one of the two parcels was tribal because in this
case the land of the non-Indian was located in a pristine
wilderness-type area that the Court said ``retained its Indian
character.'' In the case of the other parcel, the U.S. Supreme
Court said that the county could zone the non-Indians' land
because in this area there had been several non-Indians move
into a small town on the reservation, and that area had lost
its Indian character, having businesses in it and a small
airport.
In another case, the 1997 Strate case, which we quoted
earlier, a non-Indian contractor was doing work on the Ft.
Berthold Indian Reservation. The non-Indian contractor was
driving down the road, and Jazella Fredericks came out of her
driveway at her home. The truck hit her at a high rate of speed
and did serious harm to her. She was in the hospital for many
weeks, having been gravely injured.
She and her several children, all members of the tribe,
sued. Now Mrs. Fredericks was not a member of the tribe. She
had lived on the reservation most of her life, having been a
war bride of her husband, Mr. Fredericks, a tribal member. They
met in Germany, and she came directly from her native Germany
to the reservation, lived there, raised her children.
When she found that she needed the help of the justice
system, she went to the Ft. Berthold justice system, and she
was turned back by the U.S. Supreme Court. The Court held that
the tribe had no jurisdiction because the accident had taken
place on non-Indian land. What was the non-Indian land? It was
a road on tribal property over which a right-of-way had been
granted to the State to construct the road, non-Indian land.
Now the result would have been different, the Court said,
if it was a Federal road or a tribal road, or if Mrs.
Fredericks had been a tribal member. Now consider for 1 minute
the plight of being a police officer or a zoning official or
some other officer of the government for either the tribe or
the county or the State in either of these situations. How do
you apply the law handed down by this U.S. Supreme Court? It is
absolutely impractical and unworkable, depending as it does on
tribal membership, race of the parties, and the ownership of
land.
Now consider also how all of this must look to a person
thinking of putting a business on an Indian reservation or
investing in a tribal business. The one thing that a business
person wants in my experience is certainty. There is no
certainty here, where the law depends on a complex mix of
factors that the Court is continuing to articulate, such as
race, tribal membership, landownership, and some unarticulated
balancing of those factors.
As tribal governments look forward to trying to enhance
their economies and fulfill the congressional policy of Indian
self-determination and economic growth, these cases are going
to be, are today, a major barrier. They are going to drive away
businesses. Congress' policy of self-determination for tribes
and bolstering tribal governments is being seriously eroded by
this course of decisionmaking.
In the modern era, this period since 1958 until 1986, about
when the Rehnquist Court began, the Supreme Court gave modern
meaning to those old precedents from the Marshall trilogy, and
it sustained tribal powers over tribal territory. During this
same period, tribes enacted codes and laws. They strengthened
tribal governments and built up agencies and entities to
administer their laws over everything from water and the
environment to business regulation.
With the help of congressional policy and congressional
funding, they strengthened their tribal courts and governments.
With new business activity coming in, and it wasn't just bingo
parlors and casinos that are known best to the public, the
cycle of poverty started to lose its grip on many reservations.
Tribally-controlled schools got new quality and
accessibility to education. Now progress, admittedly, has been
slow, but it has been steady, and it's been progress, to be
sure, thanks to wise and determined tribal leaders, and thanks
to the congressional policy of self-determination that's
remained unchanged for 30 years. But all of this is now
threatened by the devastating impact of these U.S. Supreme
Court decisions that deny and reverse congressional policy.
The decisions are filling every gap that Congress has left.
If Congress has not addressed an issue, has not spoken, the
Court will enter and curb tribal powers. The activism of the
Court is resulting in a new and more confused Indian policy
with no agenda and no vision beyond its distaste for difference
and what it considers to be race-based institutions and a
commitment to protecting the powers, prerogatives, and
immunities of states. The Court is ruling against tribes in
case after case.
The trend in Indian law, indicated by our first chart, is
explained by these broader trends that I have identified in the
article, but the Court, whether purposefully or not, is
advancing a kind of termination. But termination, even wrapped
in a black robe, is still termination.
What surely remains of Indian law is Congress' power to
legislate in Indian affairs. Just as Congress has stepped in to
correct the error in Duro v. Reina, the case denying tribal
criminal jurisdiction over non-members, Congress can reaffirm
and clarify tribal jurisdiction and set Indian law and Indian
policy back on track.
Indian rights and Indian sovereignty are essentials in a
government-to-government relationship that goes all the way
back to the founding of the Nation. If the Court understood
this and appreciated this grounding in original intent, Indian
law could be put back on track by the Court itself, but this
seems unlikely. The Court's primary mission has little to do
with Indian law. It will be up to Congress to reverse the
trend. Thank you.
[Prepared statement of Mr. Getches appears in appendix.]
The Chairman. Thank you very much, Professor.
May I now call upon Professor Anderson.
STATEMENT OF ROBERT ANDERSON, UNIVERSITY OF WASHINGTON, SCHOOL
OF LAW, SEATTLE, WA
Mr. Anderson. Thank you, Mr. Chairman and members of the
committee. It is an honor to be here today.
I want to state for the record that I agree with everything
that Professor Getches has so eloquently laid out. He's done
such a good job that he doesn't leave much for his colleagues
to discuss here.
But I have spent about 1 dozen years working for the
American Native Rights Fund, 5 years with Secretary Babbitt at
the Interior Department, and I'm now at the University of
Washington, where I teach Indian law and run the Native
American Law Center, which does a lot of day-to-day work with
Indian tribes in the Northwest, Alaska, and around the country.
I am also a member of the Bois Forte Band of the Minnesota
Chippewa Tribe.
I want to talk to you a little bit about some of the
particular instances where the Supreme Court's jurisprudence of
late has caused real harm to Indian tribes on the ground and
also created the significant potential for mischief within the
executive branch.
First and foremost is the fact that for years the executive
branch, States, and tribes have understood that they operate in
a legal world in which Congress has the final say. The
foundational principles of Indian law, that tribes have all
powers except those expressly taken away, provided a baseline
against which tribal leaders, their lawyers, States, and non-
Indians could operate. If adjustments needed to be made or
experiments were to be undertaken in the Indian law arena, that
sort of an experiment or approach could be authorized by
Congress, hopefully after dialog with the affected tribal
leaders and others.
The Indian Reorganization Act is a great example. Adopted
in 1934 to reverse the trends of the allotment assimilation
era, the terrible loss of land, the IRA stands as a bulwark
against termination of tribes. Even though a termination era
was undertaken in the 1950's, the IRA stood as a backstop. Many
tribes are organized under the IRA.
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 when Public Law 280 was based by the termination era
Congress in the 1950's, it provided states with jurisdiction
over Indian reservations. Congress, mistakenly in my view, did
not require tribal consent to such state jurisdiction. Congress
was dealing with what was perceived as a state of some
lawlessness within Indian reservations and acted in Public Law
280 to give States authority.
It was only 14 years later, in 1968, when the Indian Civil
Rights Act was passed, in which Congress amended Public Law 280
to require that States who would assert jurisdiction over
Indian reservations receive the consent of the tribe, receive
the consent of the body with governmental authority over a
particular reservation. Since 1968, no State has assumed
jurisdiction over an Indian reservation.
In fact, in the State where I live, Washington State, the
Tulalip Tribes recently worked with the State legislator, with
the Governor of Washington State, to have the State of
Washington surrender its jurisdiction over the Tulalip
Reservation in favor of tribal jurisdiction. The tribe worked
with Secretary Babbitt, with the county police officials, with
Congress, in order to obtain funding to ensure that the tribal
government could administer police protection and provide a
forum for judicial dispute resolution on the reservation.
The Tulalip Tribes have a tribal court with a couple of
judges, a public defender's office, a prosecutor's office, a
jurisdictional arrangement with the counties and with the State
that works well for all parties.
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.
Now also part of the Indian Civil Rights Act were
provisions of the U.S. Constitution which were placed on Indian
tribes. As Professor Getches pointed out, the tribes are
recognized in the Constitution as one of three sovereigns. The
provisions of the Bill of Rights are applicable to the Federal
Government and to the States through the 14th Amendment. The
Congress, in 1968, chose, over the objection of many tribes, I
might add, to make many of the provisions of the Bill of Rights
applicable to Indian tribes. That was Congress' prerogative to
do so.
The Supreme Court, in 1978, when it heard a case involving
the application of the Indian Civil Rights Act, a Federal law,
correctly, in my view, determined that Congress had not
intended to allow Federal courts to intrude on the operation of
Indian tribes. Instead, the Court said, well, Congress has put
in place the provisions of the Bill of Rights to some extent
and made them applicable to tribes. However, Congress did not
clearly authorize Federal court to hear these cases, and
therefore, we're going to make these rights enforceable only in
tribal court.
If Congress wishes to allow Federal courts to hear these
actions, it can state so explicitly. That is as it should be.
Unless Congress speaks clearly to an issue, the Court should
rule that the tribal autonomy is not interfered with. We've
seen a dramatic departure in just the opposite presumption
taking place with the current Court, as Professor Getches has
pointed out.
Third, Congress has acted in several areas to delegate
Federal authority to Indian tribes. Most notably, in the Clean
Air Act, Congress explicitly provides tribes with the ability
to obtain treatment as a state and to set air quality standards
within reservations, after going through a bureaucratic
exercise with the EPA. Similarly, the Indian liquor laws are
administered in tandem by the Department of Justice, the
Secretary of the Interior, and Indian tribes with tribes acting
to exercise delegated Federal authority under the Indian liquor
laws.
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. do, that this body has adopted a great deal of laws
in the 1980's and 1990's that support and enhance tribal
governmental jurisdiction: the Indian Child Welfare Act, the
Indian Child Protection and Family Violence Act, the Indian
Tribal Justice Act. The Department of Justice COPS Program is a
tremendous success. The funding that's been provided by
Congress has put police officers, tribal police officers, on
the beat on reservations. It is another example of tribes
receiving that which is their due treatment under the U.S.
Constitution.
The executive branch has taken notice. Now the executive
branch, as I can well attest, sometimes drags its feet at
implementing Federal policy. President Clinton issued executive
orders on consultation with tribes as governments. President
Nixon announced the self-determination policy in 1970.
Memoranda on government-to-government relations and other
secretarial orders that confirm and recognize the status of
tribes as government sometimes seem to me as sort of a paper
chase. These are exercises that are not really worthwhile.
But having been in the administration, I can tell you that
the fact that the President of the United States cites the
Self-Determination Act and other acts of Congress and directs
career employees to consult with Indian tribes because they are
governments has an important effect on the way the Government
does business.
Now the Supreme Court in these cases has undermined that
policy by limiting the authority of tribes over their
reservations. I fear that it is possible that the executive
branch will get cold feet unless this Congress steps in and
reaffirms the authority of tribes in a strong baseline against
which tribes, states, and Federal bureaucrats may operate.
I can't say enough about Congress' work with the Indian
Self-Determination Act and the Self-Governance Act. I was
looking at some statistics the other day. In Alaska, 97 percent
of BIA programs are carried out by tribes; 75 percent of Indian
Health Services programs are carried out by tribes. That's the
case in many regions of the country.
Notwithstanding the terrible loss that Alaska Natives
suffered in the Vinatie case, they remain governments with
members and important jurisdiction. The Alaska Supreme Court,
never known for its friendly disposition to Indian tribes,
recently recognized the authority of tribes in Alaska to
adjudicate domestic relations matters among members and non-
members who consent to tribal jurisdiction, this
notwithstanding the loss in the U.S. Supreme Court in the
Vinatie case.
I tell you, it is a strange day when we look to State
Supreme Courts for protection, and they look better than the
U.S. Supreme Court. Yet, that is the case that we find
ourselves in as a result of the Rehnquist Court's recent
decisionmaking.
Similarly, when the Rehnquist Court handed down the
Seminole Indian Gaming Case, which, in essence, made part,
important parts, of the Indian Gaming Regulatory Act
unenforceable, the Secretary of the Interior was able to step
in with gap-filling regulations. The cases in litigation, the
administration was able to respond to the Court's ruling in the
best way that it could, but, again, I fear with these recent
blows that have been dealt with Hicks and Atkinson, it is only
Congress that can make the situation right. I urge Congress to
do so. Thank you very much.
[Prepared statement of Mr. Anderson appears in appendix.]
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 decisionmaking, 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. Sovereignty, as related to Indian country,
has been defined in many different ways. How does the Supreme
Court, the Rehnquist Court, define sovereignty?
Mr. Getches. It seems to define it as what a tribe has, the
powers that a tribe has specifically over its members. It has
taken away the territorial version of that sovereignty. In
quotes that we looked at earlier, the earlier courts have
recognized the territorial reach of tribal powers. In fact,
Justice Rehnquist himself said in the Mazzare case years ago,
before he became Chief Justice in this earlier period I've
characterized as the modern era, a term I borrowed from my
colleague Charles Wilkinson, he said that a tribe has power
over its members and territory, and that is language that
incorporates the notions going back all the way to Chief
Justice Marshall's time.
But there's been a turn of events since then. The current
Court has said that kind of sovereignty, territorial
sovereignty, no longer exists. That's the shift. It's just
sovereignty over members and owned land, again the social club
model.
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. Mr. Chairman, I think that the legislation
will have to address cases, or at least the outcomes in cases,
that now have become generalized to all tribes. Of course, a
case comes up on one reservation concerning a couple of people,
and then the law becomes generalized. Congress has a great
advantage in being able to step back and look at the big
picture and decide what the impact on Indian country as a whole
and society as a whole will be, to have hearings and
participation.
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. This means,
would man under the approach that I would recommend taking, a
restoration of tribal powers in many of these instances where
they have stripped away by the Court decisions.
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. And you believe that will suffice?
Mr. Getches. I beg your pardon?
The Chairman. That will suffice? That would overcome these
decisions?
Mr. Getches. Well, I think you need to start by being very
specific about the principles in those decisions that need to
be reversed. If, for instance, civil jurisdiction over non-
members in tribal courts is to be restored, that will have to
be explicit.
The Chairman. So then the law should specifically address,
say, the Hicks case or the Atkinson case?
Mr. Getches. Well, I think the approach of Congress should
address those cases. The statement of the principle should be
more than a reversal of the case by citation, which in a few
rare cases Congress has done. I think this is like the approach
to Duro v. Reina, where the case wasn't specifically overruled,
but the principle was embodied in legislation after Congress
determined that it was unacceptable. So, yes, it is case-by-
case, but probably without citation to or limitation to a court
decision.
I know Congress did that once in the case of United States
v. Midwest Oil in the public lands area, just said the case is
overruled. I think more amplified and thorough treatment is
needed for these cases.
The Chairman. If I may now ask Professor Anderson, do you
have any personal theory as to why the Supreme Court in recent
rulings seemed to ignore the stated Federal policy of self-
determination and tribal self-governance?
Mr. Anderson. I think that there are a few reasons, a
couple of which were stated by Professor Getches here. No. 1, I
think that this whole notion that tribes have jurisdiction over
non-members is something--and non-members who can't vote in
tribal elections or run for tribal office in some cases,
although a tribe can do what it wishes in terms of determining
its officers might be, I think there's a fundamental problem.
Justice Souter, in his concurring opinion to the Hicks
case, outlined that reason as one of the particular problems
that he personally sees in analyzing whether or not to affirm
tribal jurisdiction over non-members.
Second, my personal thought is that we don't have anybody
on the Court who takes a great personal interest in these cases
anymore. When Justice Brennan and Justice Marshall and Justice
Blackmun were on the Court, they took it upon themselves to
become scholars in this area. They cared about Indian law. They
cared about Indian people and understood what was happening on
the ground. I just don't think that we have anybody on the
Court right now that takes that sort of an interest.
When I look at the opinions, I see them as quite
superficial in their analysis. I see them letting themselves
off the hook by saying, well, if we make any mistakes, Congress
can just remedy them. It used to be, under the Burger Court and
prior Courts, that the law would run in favor of tribes.
Ambiguities, as we all know, would be interpreted in favor of
Indian tribal governments, and if a Court erred in terms of
recognizing too much tribal governmental powers, the Court
said, well, Congress can remedy that, as it did with the Indian
Civil Rights Act. So we've seen a complete reversal in the
modern era.
I think it really comes down to a lack of interest and this
notion that, oh, we're not going to recognize any special
rights for groups, and because of the lack of interest, the
Court fails to understand the governmental status, the
political status of Indian tribes and treats them as a racial
minority instead of as governments that they are that pre-
existed the establishment of the United States.
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.]
Mr. Vice Chairman.
Senator Campbell. Thank you, Mr. Chairman.
Dave, it is nice to see you again. I remember two decades
ago when we worked on issues of mutual interest in Colorado,
and I had great admiration for you then and still do. You have
really a good heart when it comes to dealing with Indian people
and Indian issues. I am glad to see you've done so well. I
guess the jury's still out whether I've done well because it
seems like all I do when I show up at these hearings is get
mad. [Laughter.]
But, I'll tell you, when I hear comments like yours and Mr.
Anderson's, I do get mad, not at you, but at the process, the
way we have treated Indians in the history of this country.
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.
Yet, we see a constant erosion of their rights on both sides of
that equation.
Some of those, it seems to me, ought to be protected in the
Constitution like anybody else. And, yet, if they were
protected in the Constitution, they probably would have had the
right to vote at least as early as women did in this Nation. If
they were protected, truly protected, by the Constitution, I
mean the basic human rights that they ought to have like
anybody else, we wouldn't have the remains of 16,000 Indians
warehoused in the basement of the Smithsonian, although many of
them are not there now because of the work of Senator Inouye
and me. As you know, under the Museum of the American Indian
Act 12 years, we required the Museum to start giving those
remains back to the tribes and the families of the people they
had collected.
But I point that out because I think it's clearly different
than any other, if I can use the word, minority is treated in
this country. Indians have made some small gains sometimes in
the state courts, as Mr. Anderson suggested, and years ago a
few of them in the Supreme Court. They've made a few gains
here, but it seems like every time they make a gain, they lose
one.
You spoke at length about termination. Both of you did.
I'll tell you, of all the misguided, dumb things that Congress
could have done, I guess that was the classic worst. I often
think that the Termination Act, the equivalent would have been
for the Federal Government to tell African Americans that we
passed a law saying you're no longer black. I mean, how stupid
can you get? That was a stupid act.
But we rectified that. We changed that, as you know. It's a
good thing we did. It should have been done sooner. It did a
lot of damage to Indian people.
But now we seem to have, for lack of a better phrase,
termination by Court decree, rather than what we have done
here. Maybe we're getting a little more enlightened, but we
have a long way to go. I know you're aware of that, too.
But let me ask you just a couple of questions. That's our
role, Congress' role. Maybe either one can answer, but let me
just address it to maybe you, Dave, first of all.
How much is our fault? How much are we to blame for
allowing the Court to encroach in the field of Indian affairs,
a field where the Constitution, and you pointed out a number of
former decisions made by the Court that I think supported the
fact that the Constitution delegates affairs with Indians to
Congress. Have we made big mistakes by not taking this on
sooner?
Senator Inouye mentioned that we don't often get involved
in this, and I agree we don't. Maybe we should have a long time
ago.
Mr. Getches. Well, Senator Campbell, I would say, no, it
hasn't been something that you look back at with regret or
guilt for not wading in sooner, because who could have seen
this coming? The jurisprudence of the Supreme Court has always
been that, unless Congress speaks, we're going to read tribal
powers as undiminished.
Now implicit in that is there might be situations where it
is intolerable for tribal powers or tribal rights to exist, and
that Congress will take care of that.
Senator Campbell. Now it seems that if we don't speak, they
do diminish them.
Mr. Getches. It's just the opposite now. I think that while
you can't say that Congress has dropped the ball in the past,
it would be a serious mistake not to wade in at this point.
We're all on notice. This thing has gone on for at least 15
years, and it doesn't appear to be getting any better. In fact,
every decision that comes down, as those trends indicate, show
that things are getting much, much worse, and it's time for
Congress to act.
Senator Campbell. Well, we're doing things little by
little. I'm just not sure that the courts are getting the
message. During the 106th I sponsored a bill that repealed
parts of the Dawes Act. That message was really to thoroughly
repudiate the allotment policy. Will things like that have an
effect on future decisions, do you think?
Mr. Getches. Yes; they certainly should, but then one would
think that the legislation that is the legacy of this committee
over the past many years, and of its members and their work,
and of Congress itself, one would think that that would send a
clear enough message to the Court. 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.
Senator Campbell. In 2000 also enacted a bill I introduced
called, ``The Indian Tribal Legal Systems Enhancement Act,''
which would help, strengthen the tribal courts. Yesterday
Justice Breyer spoke at the National Congress of American
Indians and noted the need for solid Indian courts. Do you
think that if we continue the strengthening of tribal courts,
that the Supreme Court would recognize the tribes have the
ability to deal with their own problems?
Mr. Getches. I think it's absolutely essential that those
efforts move forward. Without them, there is going to be
backsliding, maybe even in a more understanding Court, one
which, as Professor Anderson indicated, has a member or two who
really is engaged on Indian law. Even in those Courts, if you
don't have a strong tribal court system itself, the support
from the Federal judiciary is not likely to be sustainable.
However, it is still not enough. It is not going to be enough
when you have members of this present Court talking about
tribal courts as strange institutions, as institutions that
have come a long way, but are still alien to many people and
have their own customs and their own rules of decision that are
not all written down.
Senator Campbell. Has that been language that's been
included in the Supreme Court's decisions?
Mr. Getches. Yes; it is. I could read you worse language.
I've collected it all, and it's frightening. It borders on
racism.
Senator Campbell. When we speak of sovereignty, do you
believe the Federal Government has the trust obligation to
protect tribal sovereignty?
Mr. Getches. Does the Court have it?
Senator Campbell. Do we have it?
Mr. Getches. Oh, definitely, the Congress is the lead
trustee, if you will. I like to look at this like a bank.
Congress is the bank----
Senator Campbell. I believe so, too, but I think the
problem we face now is the tribes in some cases feel they have
no place to go. Is there anything the tribes can do if we fail
in our obligation to uphold that obligation?
Mr. Getches. The buck stops here.
Senator Campbell. It seems like I've heard that somewhere
before. [Laughter.]
Professor Anderson, how can Congress--this is kind of
rhetorical; you might not even answer that--but how do we get
the Supreme Court to return to their former approach, assuming
that tribal authority exists until it is clearly extinguished
by an act of Congress?
Mr. Anderson. Well, I just think that you've got to act.
You know, we can wait around 30 or 40 years and hope for a
better Court and try to get them to discard this approach as
wrong-headed. That's always possible. But unless this body
acts, I just think that we're going to continue this downward
spiral. I mean, it reached a crescendo last year with Hicks and
Atkinson. It's been getting worse every year for the last 15,
and it's time to stem the tide here.
Senator Campbell. Thank you. I appreciate the appearance of
both of you.
Thank you, Mr. Chairman.
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.
The Chairman. May I thank both of you on behalf of the
committee, and we will be calling upon you for assistance, if
we may.
Mr. Getches. Thank you, Mr. Chairman.
Mr. Anderson. Thank you.
The Chairman. Thank you very much.
And now we are most privileged to have as a witness the
Senior Judge of the United States Court of Appeals for the
Ninth Circuit, William C. Canby, Jr.
Judge it is a great pleasure and honor to have you here,
sir.
STATEMENT OF WILLIAM C. CANBY, Jr., SENIOR JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PHOENIX, AZ
Mr. Canby. Mr. Chairman, members of the committee, I used
to teach Indian law, and in the last 20-some years I have been
on the Court occasionally deciding cases of Indian law, but I
have to begin my remarks by saying that I speak as a former
teacher and a present student of Indian law, and I hope a
scholar of Indian law, but I can't speak for my Court or the
Federal Judiciary in general.
I have been asked to elaborate on some trends in the Court,
and I'll try not to go over ground that has already been
covered so well by Professors Getches and Anderson. But there
are two or three doctrines that the Supreme Court has evolved,
and even within those doctrines, has changed over time. The
present trend in use of all of those doctrines is to the
detriment of tribal power.
We've already seen in the analysis of Professor Getches
that there's been a reversal of the original presumption. 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.
The presumption has been switched, as some of the language
shown by Professor Getches indicates. So now they say, well,
the state power extends into Indian country unless there's some
positive law excluding it. That is a function of the last 20 or
so years. Once you switch the presumption, then when you get to
any particular case, the tribe tends to suffer.
I would like to emphasize most, though, the business of the
Supreme Court in deciding that various powers are inconsistent
with the status of the tribes as domestic dependent nations.
The Court is going against the historical background that I
think has already been set out for you. When John Marshall
decided that the tribes were separate nations governing their
own territories, territories in which the laws of Georgia could
have no force, Chief Justice Marshall was acting perfectly in
accord with the dominating congressional legislation of the
time, the Trade and Intercourse Acts. The first one was passed
by the very first Congress.
Those acts, for instance, provided that tribes could not
alienate their land to others without the consent of the United
States. They could only alienate to the United States. So the
Judiciary and Congress were pretty much in synchronization at
that time.
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.
At that time the Supreme Court was on board, too. The
dominating case of that time in 1959 was Williams v. Lee, which
held that, if a non-Indian wanted to sue an Indian over a
transaction that occurred on the reservation, that non-Indian
would have to go to tribal court. The reason that non-Indian
would have to go to tribal court was that to sue an individual
Indian in State court would interfere with the self-government
of the tribe.
Now we have to think of what kind of an interference that
is when we look at what the Court is doing today. Justice Black
in Williams v. Lee said, if you take an individual Indian and
sue over a private transaction, and sue that Indian in State
court, that's an interference with self-government of the
tribes, and it can't be done. The State court has no
jurisdiction.
So the Court and the Executive and Congress were really
quite in agreement as of, say, 1970, and then it began to
deteriorate with Oliphant in 1978, when it was held that tribes
had no criminal jurisdiction. Why? Well, Oliphant went through
some Federal statutes and made an argument that was perhaps at
least arguable that they seem to assume that the tribes
wouldn't be exercising jurisdiction over non-Indians.
But the Court didn't really base its decision on those
statutes at all. It says, well, exercise of criminal
jurisdiction over non-Indians would be inconsistent with the
status of the tribes as domestic dependent nations.
Now Chief Justice Marshall had announced two disabilities
of dependent status. The tribes could not alienate their lands
to others than the Federal Government or with the consent of
the Federal Government, and this was in line with the
congressional policy of protecting the Indian land base from
erosion by aggressive States and State citizens.
And the other, which seemed to be almost necessary once the
tribes were engulfed within the United States, was that the
tribe lost control of external relations. And what did they
mean by that? They meant the tribe, an Indian tribe, could not
make a treaty with Germany or France. They lost their power
over external relations in the international foreign relations
sense.
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, once this line was broken and Oliphant invented a new
limitation on tribal status because of domestic dependent
status, it's an unbounded category. Any time the Court is
suspicious of a tribal power and decides to strike it down, it
can simply say it's inconsistent with domestic dependent
status.
The list is long. Rice v. Rehner, the tribes lack status to
adopt a preemptive liquor licensing law, of all things. Strate,
they lost the power to adjudicate accidents that occur on a
public right-of-way within the reservation that's on tribal
land when non-Indians were the parties.
Then we have Atkinson, the taxation of non-Indians on fee
land, and Hicks v. Nevada just last term, where State officers
enforcing a search warrant were held not to be subject to
regulation by the tribe, even when they're executing a warrant
against an Indian on Indian land, on Indian-owned land.
Well, the key case that the Supreme Court is using when
they invoke these doctrines now is Montana against United
States, which was decided in 1981. The Court now considers that
the fountainhead of its jurisprudence.
When Montana came down, most of us didn't get too excited.
It seemed to create a small exception to what we all assumed
was the power of the tribe to exercise regulatory jurisdiction
over its whole reservation, fee and non-fee, Indian and non-
indian. The exception? Well, when a rancher owned his own
ranch, he could go out and hunt birds or deer on that ranch,
and the tribe wouldn't be able to regulate it.
Well, that seemed like a small exception, and even that
exception had exceptions. If it affected the welfare of the
tribe, they talked about the internal relations, the self-
government, but also the health or welfare of the tribe. If the
non-Indian conduct, even on fee land, affected the welfare of
the tribe, then the tribe would be able to regulate. That's the
way Montana was read by most of us.
It also had language, however, which talked about the
tribal power really is over Indians and isn't really aimed at
non-Indians. But the holding was rather narrow. But as has
happened in almost every case since Montana, the most
pernicious language in the opinion becomes the deciding point
in the next case. Montana was an exception. We all saw it as an
exception.
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.
Well, Strate, for instance, admitted that those who drive
carelessly on a public highway running through the reservation
endanger all in the vicinity, and surely jeopardize the safety
of tribal members. But if Montana's second exception requires
no more, the exception would severely shrink the rule, and so
on. Well, of course, there is an effect on the tribe when
people race down the highway right through the reservation on
tribal land.
The last two cases, Atkinson and Nevada, make me wonder, as
I do in my written testimony, whether the Court fully
understands the impact of its decisions in Indian country. In
Atkinson the Navajo tribe, which provides services to the
trading post on fee land that is surrounded by an within the
reservation can't impose a hotel tax. Well, there are small
tribes, for instance, whose primary income, or a very
substantial part of it, comes from taxing railroad property
that goes through a right-of-way over Indian land. Has it lost
its primary tax base? Remember, Strate now says right-of-way is
just like fee land, and Atkinson says, well, you can't tax non-
Indian things on fee land.
Well, this is a very, very disruptive decision. It is a
judicial construct. It comes from nothing Congress has said. It
isn't consonant with Congress' view that tribes are self-
governing bodies with control over their territories.
The same with Nevada against Hicks, I wondered if the
Supreme Court, when it decided Nevada against Hicks, wondered
why when State officers went to a State court in Nevada and
asked for a search warrant to be executed against an Indian on
Indian land within a reservation, the State judge said, well, I
can give you a search warrant, but it's no good there; you will
have to go to tribal court. That State judge did what, to my
knowledge, every State judge that I know in the West would have
done, was to say, sure, I can give you a writ if you want, but
it doesn't run on the reservation against an Indian.
So the State officers did what is not at all unknown. They
went to the tribal court and they got a search warrant, which
isn't hard to do and it wasn't hard to do in Hicks. They then
went to execute it. Unfortunately, they allegedly exceeded the
scope of it and caused some damage to property, and so on.
But all of this, if you take the rationale of the Supreme
Court in deciding Hicks, that State judge was just engaged in a
nicety. There was no necessity for that. The tribal officers
could have walked right onto tribal land. They didn't have to
notify anybody. They could exercise their search warrant just
banging on the door, as they would off reservation, without
saying ``boo'' to anybody. That's the rationale of Hicks.
That's the law of Hicks.
Well, they even drop a footnote dealing with, in either
Atkinson or Hicks, I believe it was actually Atkinson, where
they drop a footnote saying that, well, we wouldn't want the
reservation to become a haven for criminals, and they refer to
an old 1970's case from the Ninth Circuit which deal with
extradition from the Navajo Reservation, and it didn't permit
extradition because the Navajos did not have an extradition
treaty with Oklahoma, as they did with Arizona, an extradition
agreement.
Well, several of the tribes, many of the tribes have
extradition agreements, either informal or formal, in my part
of the country. Those were worked out over a long period of
time. Under Hicks, it's so much waste paper and waste effort.
If the State of Arizona wants an Indian who has committed a
crime off reservation, under Hicks it can just go in and arrest
him, get an arrest warrant from a State court. They don't have
to ask a tribal court. They don't have to ask a tribal
government. They don't have to ask anybody. They can just go in
and make the arrest, if you follow Hicks.
Well, this has upset settled expectations in Indian country
in a way that I suspect even the members of the Supreme Court
may not fully understand; I don't know. But if you look at
Hicks and Atkinson, Atkinson particularly, which says that
certainly the Cameron Trading Post has an impact on the tribe--
I mean, it costs some fire and police protection, and so on--
but it doesn't threaten the very viability of the tribe. So it
doesn't interfere with tribal self-governance.
In Hicks, Justice Scalia has said, well, this doesn't fall
within the second Montana exception because, with the exception
that says that if it affects the health and welfare of the
tribe, then the tribe can regulate it, it doesn't fall within
that exception because the state's interest in enforcing the
law is very strong. Well, they're supposed to discuss the
tribal interests when you decide whether something affects the
health and welfare of the tribe, not just the state interest,
but the Supreme Court did not do that.
Indeed, if you look back at Williams v. Lee, suing an
individual Indian on a private contract in State court was
considered an impermissible interference with self-government.
Now we've moved to where you can have an impact on the fire
services, the police services, you can endanger the tribal
members on the highways, and none of that has an effect on the
tribe because it doesn't threaten the very existence of the
tribal government. That's just much too strong a test, and it's
an evolution of a test that the Supreme Court has used. It is
certainly not in--it does not come from anything Congress or
the Executive has ever done.
I know that we are getting pressed for time, and I will
only refer briefly to the rest of my testimony. That had to do
with when this committee and Congress corrected the result of
Duro v. Reina and referred to the inherent authority of tribes
to exercise criminal jurisdiction over non-member Indians.
The effect of that came to an en banc decision of my court
to consider just how that worked out. All 11 members of the
court said that, well, this was really an adjustment of the
Supreme Court's view of history or it was not necessary to
adjust it. Either way, the tribe was exercising its sovereign
power after this act, and so there was no double jeopardy
problem.
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.
So I believe that my view is much in accord with that of
the first two witnesses. The trend of Indian decisions in the
last 15, possibly to 20, years has been seriously out of
synchronization with that of the Congress and the executive
branch.
I thank the committee for permitting me to address them.
[Prepared statement of Judge Canby appears in appendix.]
The Chairman. I thank you very much for your learned and
scholarly explanation.
If I may, I would like to ask the same question I asked of
Professor Getches. You spoke of the principle that the Court,
the Rehnquist Court, has been applying, that tribal governments
have lost governmental powers because the exercise of these
powers would be ``inconsistent with their status as domestic
dependent sovereigns.''
Can Congress statutorily prevent the Court from applying
this principle in future cases?
Mr. Canby. Yes; I think it could. It is hard, I suppose, to
have legislation which simply says that there's some sort of a
principle that cannot be applied, but you can have legislation
that's clearly inconsistent with the principle and the Court
would be forced to follow it.
For instance, there could be legislation stating
specifically in some of the same areas that the Court has been
making decisions in, that the inherent power of the tribes
include, and then name things that the Court has said were
inconsistent. Congress can announce that they are, indeed,
consistent. That is much in the manner of what Congress did
after Duro v. Reina.
I don't see this, incidentally, as a battle between
Congress and the Court at all. The Court has never purported in
any of these decisions except the Smith religious decision to
be announcing constitutional policy. There are several points
in these decisions where they say, in the absence of acts of
Congress, and what they mean is a specific act of Congress on
this very point. In the absence of an act of Congress, then we
decide this. In the absence of an act of Congress, the tribes
cannot exercise jurisdiction, criminal jurisdiction over non-
member Indians. Well, then there was an act of Congress, and
the Court has yielded to it.
I think that if this body chooses to overrule decisions of
the Court, it's not something that the Court would view as an
interference with its business because it recognizes the
plenary power of Congress in this area.
The Chairman. Does the Constitution of the United States
explicitly grant or vest the Supreme Court with authority to
change the legal status of Indian tribes?
Mr. Canby. Well, no, it certainly doesn't explicitly vest
that authority in the Supreme Court. There has been a long
tradition, however, from Marshall of the Court's deciding what
the status of the tribe is when a decision requires it. In
other words, when there is a dispute before the Court that
turns on the capacity of the tribe, then the Court might have
to decide its view of the status or the capacity of the tribe,
but it would certainly be subject to any directions Congress
gave.
The Chairman. Judge, I thank you very much.
Mr. Vice Chairman.
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. They
might well go take the position that it's really up to Congress
to decide and we will exercise jurisdiction and we will
recognize tribal jurisdiction whenever the Congress pleases.
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?
Mr. Canby. I don't see why they couldn't. I haven't thought
about that, but we certainly would have, I would think in
reviewing a tribal court decision, as we now do in habeas
corpus under the Indian Civil Rights Act, we give the same kind
of deference, I believe, to a tribal court decision that we
would have to give to a State court decision, if we were
exercising habeas jurisdiction, which is a very deferential
standard of review. Findings of fact by that Court, for
instance, normally don't get re-examined.
Senator Campbell. Thank you, Mr. Chairman. No further
questions.
The Chairman. Thank you very much, Your Honor.
Mr. Canby. Thank you, Mr. Chairman. Thank you, members of
the committee.
The Chairman. Now may I call the chief justice of the
Navajo Nation Supreme Court, Robert Yazzie; the chief justice
of the Supreme Court of the Wind River Reservation of Wyoming,
John St. Clair, and the chairman of the Jamestown S'Klallam
Tribe of Washington, W. Ron Allen.
Now it's my great honor to call upon the chief justice of
the Navajo Nation Supreme Court.
STATEMENT OF ROBERT YAZZIE, CHIEF JUSTICE, NAVAJO NATION
SUPREME COURT, WINDOW ROCK, AZ
Mr. Yazzie. Chairman Inouye and Vice Chairman Campbell, and
the working staff of this committee, I appreciate the
opportunity to speak to this committee on the effect of recent
U.S. Supreme Court rulings on the Navajo Nation and its legal
system. A copy of my entire comments has already been submitted
for the record. So I will quickly give a summary of the Navajo
Nation's concern.
The rulings have caused many problems. Neither Indians or
non-Indians have a clear understanding of what happens when
someone commits an act or causes harm in Indian country, and
victims of crime are helpless because of the failure of Federal
prosecutors to prosecute. One of the problems from the rulings
is that the docket of the Navajo Nation Supreme Court is
crowded with jurisdictional challenges.
Another, businesses with right-of-ways or leases of Navajo
Nation land, such as utilities and pipeline, are now claiming
that the Navajo Nation has no authority to regulate or sue
them. Navajos are being denied the right to access to our
courts when they are involved in motor vehicle accidents or
incidents on highway rights-of-way across Navajo Nation land.
Even though Congress dealt with the issue of criminal
jurisdiction over non-member Indians, Russell Means continues
to challenge this congressional action and our authority to
deal with family violence by non-Navajos.
A non-Navajo sued the State of New Mexico and the Navajo
Nation over a civil traffic ticket for speeding and resisting
arrest by a Navajo Nation police officer cross-deputized as a
State law enforcement officer. Now even the BIA's putting
forward cross-Commission agreements with state law enforcement
agencies without our input.
Last November a member of the Hopi Nation was arrested for
possession of unlawful weapons and the possession and
distribution of liquor, but we have no jurisdiction because the
arrest was done on a highway right-of-way within the Navajo
Nation. The defendant is currently challenging Navajo
jurisdiction.
State police officers are entering the Navajo Nation and
engaging in misconduct or violations of the Treaty of 1868. One
situation involved a high-speed chase that resulted in a death.
County deputies are entering the Navajo Nation to siege license
plates without a hearing, and they are attempting to arrest
Navajos for crimes committed outside the Navajo Nation without
following Navajo extradition laws.
Navajo trial courts are being sidetracked from the nuts-
and-bolts of deciding cases because of the large number of
jurisdictional challenges. Creditors are now saying, ``We do
not need to follow Navajo Nation consumer protection laws.''
In sum, recent U.S. Supreme Court decisions have made it
impossible to maintain a functioning civil government in the
Navajo Nation to safeguard the public.
We are all concerned of the way things have changed after
September 11, 2001, but you may not be aware of the consequence
for Indian country. The U.S. Department of Justice has released
reports on the fact that crimes in Indian country are far
higher than other parts of the United States, and domestic
violence in Indian country is out of control.
Given decisions of the Federal Bureau of Investigations and
the U.S. Department of Justice to make the war on terrorism and
homeland defense priorities, I am concerned about our power to
punish and our power to prevent crime. The ability of Indian
nations to effectively exercise jurisdiction and to address
crime and social problems must be maintained.
There are also fears expressed by the U.S. Supreme Court
about whether tribal courts can and will protect individual
civil rights. Mr. Chairman, Mr. Vice Chairman, I give you my
assurance that the courts of the Navajo Nation can and do
provide individuals these protections.
One controversial issue is that tribal courts do not
appoint counsel for indigents. This is not true. We have a law
for appointing counsel that fully complies with the Federal
constitutional standard that an indigent must have counsel if
there is a likelihood of a jail sentence.
Non-Indians challenge the fairness of Indian customary law.
Non-Indians assume that traditional Indian law is some kind of
mystery, something to be feared. In our legal system decisions
are written in English, in plain words, the commonsense nature
of Navajo commonlaw. The Navajo Nation Bar Association has 400
members. They are required to learn Navajo common law. Many
nonIndian lawyers appear before the Navajo Nation courts and
administrative hearing officers, making arguments in Navajo,
using Navajo commonlaw.
The lack of jurisdiction to regulate activities and to hear
a case because one or both of the parties are non-Navajo or the
activity or event took place on lands that may or may not be
Indian country is a nightmare. The Navajo Nation legal system
is open, visible, and easy to understand. Under the Navajo
Nation Bill of Rights that predates the Indian Civil Rights
Act, all protections of the U.S. Constitution are available.
Recent rulings of the Supreme Court are not grounded in the
Constitution. In fact, the U.S. Supreme Court has openly
invited Congress to clarify these jurisdiction complexities. It
is time for Congress to act.
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. The Navajo Nation is committed to do just that.
Thank you.
[Prepared statement of Justice Yazzie appears in appendix.]
The Chairman. I thank you very much, Mr. Chief Justice. I
can assure you that the chairman and the vice chairman of this
committee will do everything possible to address the problems
that you have cited. However, I cannot speak for the Congress
of the United States, but we will do our best to convince them.
Now it is my privilege to call upon the chief justice of
the Supreme Court of the Wind River Reservation, Chief Justice
John St. Clair.
STATEMENT OF JOHN St. CLAIR, CHIEF JUSTICE, SUPREME COURT OF
THE WIND RIVER RESERVATION, FORT WASHAKIE, WY
Mr. St. Clair. Good afternoon, Chairman Inouye, Vice
Chairman Campbell, and distinguished members of the Senate
Committee on Indian Affairs.
Thank you for the invitation to come before you today to
talk about a topic that has a major impact upon Indian tribal
governments. My name is John St. Clair. I'm the chief judge and
chief justice of the Shoshone and Arapahoe Tribal Court located
in west central Wyoming. I'm an enrolled member of the Eastern
Shoshone Tribe. I'm also a licensed attorney. I have been in
that position since 1983. I'm also on the board of directors
for the National American Indian Court Judges Association.
The Wind River Indian Reservation is approximately 3,500
square miles in area, and it's inhabited by approximately
12,000 members of both tribes, plus other Indians living within
the exterior boundaries. In addition, there are about 25,000
non-Indians.
The Shoshone and Arapahoe Tribal Court, through a
comprehensive law and order code, extends jurisdiction over all
persons who have significant contacts with the reservation and
over all Indians who commit offenses that are prohibited in the
law and order code. It consists of a chief Judge who must be a
professional attorney and three Associate Judges. There is an
appeals court that consists of remaining judges who did not sit
as trial judge.
Jurisdiction is limited by applicable Federal law. Total
caseload for 2001 was approximately 3,500 cases.
The recent U.S. Supreme Court decisions have become a major
concern for the tribes due to their intensified passion to
limit the sovereignty of tribal governments. As stated before
by the other witnesses, tribes have lost, between 1990 and
2000, 23 out of 28 cases argued by the U.S. Supreme Court.
Beginning with Oliphant v. Suquamish Tribe in 1978, the
tribes held by implication for the first time, the Court held
that tribes are without inherent jurisdiction to try non-
Indians for crimes. From this case, a new doctrine has emerged
that tribes lack certain powers that are inconsistent with
their dependent status, even when Congress has not acted to
terminate those powers.
This new doctrine has been extended to the civil area, the
regulatory area in Montana v. United States and the
adjudicatory area in Strate v. A-1 Contractors; recently, in
Atkinson Trading Post v. Shirley to a hotel occupancy tax
imposed by the Navajo Nation. The most recent extension was
mentioned before, United States v. Hicks, where was held that
tribes lacked jurisdiction over civil suits against State
officials for violating the rights of Indians on Indian land
within a reservation.
The impact of Oliphant and its progeny on the powers and
authorities of Indian tribal governments is that it severely
restricts the ability to exercise basic regulatory and
adjudicatory functions when dealing with everyday activities on
reservations. 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 effect on tribes of not being able to regulate taxing,
hunting and fishing, the environment, zoning, and even traffic
places limitations on economic development and self-
sufficiency. Without the ability to generate revenues to fund
basic governmental functions, tribes become more and more
dependent upon Federal grants, contracts, and compacts as a
sole source of funding. This results in increased economic
burden that ultimately falls on the Federal Government.
Now tribal courts constitute one of the front-line
institutions that are involved in issues involving sovereignty.
While charged with providing reliable and equitable
adjudication of increased numbers of criminal cases by both
Indians and non-Indians and complex civil litigation, tribes
are increasingly underfunded.
Tribes and their courts also agonize over the same issues
that Federal and State courts do, such as violence against
women, sexual abuse of children, alcohol and substance abuse,
gang violence, child neglect, pollution of the air, the water,
and the earth. These are just some of the common, yet
complicated, problems that arise on Indian reservations.
These vast panorama of cases handled by the 500-plus
courts, Indian courts, would significantly increase the
caseloads of Federal district courts and also state courts, if
they chose to exercise this jurisdiction. This would not only
increase the caseloads, but increase the cost to Federal and
state courts and result in major budget shortfalls.
This recent trend of the U.S. Supreme Court toward judicial
termination poses the greatest threat to tribes since the
allotment era of the 19th century and congressional termination
of the mid-20th century, and it runs counter to the proclaimed
Federal policy of self-determination that has repudiated the
allotment and the termination policies.
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.
I want to also add that recent Supreme Court Justices have
invited Congress to rectify these decisions that diminish
tribal sovereignty through legislation. Just the other day,
Justice Breyer in a speech invited Congress to act.
A recent Supreme Court case that was requested to go to the
Supreme Court was denied certiorari, United States v. Enas.
This case affirmed the Duro fix legislation and let stand that
legislation. So today we ask that Congress go forward with this
legislation and take the same or similar approach that was done
in the Duro, the so-called Duro fix.
Again, I want to thank you for this opportunity that you
provided to my tribes and to all Indian tribes today together.
Thank you.
[Prepared statement of Mr. St. Clair appears in appendix.]
The Chairman. I thank you very much, Mr. Chief Justice.
May I now call upon Chairman Allen. It is always good to
have you here, sir.
STATEMENT OF W. RON ALLEN, CHAIRMAN, JAMESTOWN S'KLALLAM TRIBE,
SEQUIM, WA
Mr. Allen. Thank you, Mr. Chairman. It's always an honor to
be before this committee. It's disappointing that we have to be
here with regard to a matter that makes our hearts heavy.
For the record, I am Ron Allen, chairman for the Jamestown
S'Klallam Tribe, a signatory to the No-Point Treaty in
Washington State. I'm here as a former president and first vice
president of the National Congress of American Indians. In that
capacity, I am cochairing, along with the president of the
Navajo Nation, a National Tribal Task Force to propose some
options and approaches to deal with what we believe are clear
attacks of the Federal court and Supreme Court system on tribal
sovereignty and tribal jurisdiction.
Because of the Hicks and Atkinson case, the tribes
definitely came together to start deliberating on what is it we
can do. As a former NCA officer, I joined in this effort to
crisscross Indian country, because of the profound concerns of
the tribal leaders, our lawyers, our counsels, and our people
regarding the future of our governments, our reservations, and
the welfare of our communities.
The speakers before me have provided you a great deal of
details and examples of Indian law, the background of the
tendencies of the Supreme Court and Federal court system with
regard to Indian law. Suffice it to say that I and my
colleagues clearly believe that, as a basic principle, the
treaties, the Constitution, Federal Indian law has made it
quite clear: Indian governments are supposed to be provided the
authority, based on our sovereignty, to govern ourselves, to
provide for the needs of our people, and to protect our
cultures, our unique ways of life that are very unique to our
society.
There's over 560 American Indian and Alaska Native nations
across the United States, and our ways of life are very unique.
We believe that the fundamental rule of Indian law is that we
retain our inherent sovereignty and that we have that
authority.
So as we're moving forward and engaging in discussions with
this committee and the Congress, the question becomes: Where
are we going and what are the problems that we have to face? As
a tribal politician, I'm not a lawyer nor am I a justice.
That's not our duty. Our duty is to provide leadership for our
community. Our duty is to establish the laws for our
communities, so that we can have order over how our communities
are going to advance. Our duties are to be able to advance the
goals of our communities and to utilize the opportunities that
the Congress is making to help the tribes become more self-
sufficient and self-reliant, based on our own laws and our own
rules and our own value systems.
There are a lot of laws that have been passed over the last
number of years, and many of them have been constructive, but
many of them have been counterproductive with regard to
advancing those goals. When Public Law 280 was passed, many
people would argue that it had pluses and minuses with respect
to the various Indian communities.
But there's been a basic concept with regard to these laws
and the principles of the Congress, and that is that they
respected tribal sovereignty, that they respected the
responsibilities of the tribal governments, and that the tribes
have jurisdiction over our lands, unless Congress is attempting
to revise that authjority or modify that in any way.
The string of court cases that has emerged from the Supreme
Court, from back in the Oliphant case to the Montana case,
Atkinson case, and so on, certainly is providing us some great
concerns. The Atkinson case with regard to, can we tax? And
it's saying absolutely not, you cannot tax non-Indian
businesses on Indian lands. Where historically you looked at
what Congress has established through treaties with Indian
nations, provided a preservation of certain lands that the
tribes have reserved, and then the Congress created some
complications, the Dawes Act. Subsequently, the Dawes Act
created all kinds of new problems with the checkerboard
reservations, and so forth, and the slow erosion of those
reservations, but we believe that it didn't change our
authority over the activities within those reservations or the
right that we preserved in our treaties.
But these cases now are redefining that matter, and it is
also redefining the current objective of the Congress to
preserve the self-determination and self-sufficiency goals of
the tribes. If the Congress says, you need to become self-
sufficient but we can't tax, where does Congress think that
we're going to start getting revenues? If the Congress doesn't
believe that--or if the Court starts saying that we can't
provide order within our reservation borders, how are we going
to invite investors to come into our reservations and invest,
if they feel that they have no due recourse or they have no
confidence over the order that is supposed to be maintained
within the reservation borders?
Based on the way the Supreme Court decisions are heading,
we are supposed to govern our reservations, but we can't
prevent non-Indians from committing crimes; we can't regulate
matters that affect our communities, including zones. We can't
tax Indian businesses, and yet we're still providing road
maintenance and water services, law enforcement, that provide
some sort of order and other fundamental domestic services that
are made available to all members, Indian and non-Indian alike.
Yet we have no revenues for those fundamental services that we
are providing.
Now some attorneys might say that, well, these cases aren't
as bad as you think, that we still are preserving our
governmental authority. We believe that these cases are
creating a great deal of uncertainty. We believe that it is
clearly eroding the tribe's authority, and that it is
absolutely contrary to the treaty commitments and the current
modern laws and commitments of Indian nations to empower our
tribes to take care of our communities and move our agenda
forward.
We believe it is not taking into consideration the problems
that we have that this Congress and past administrations have
recognized that we have many problems. So if we have domestic
problems, as provided by the Supreme Justices, we have a
domestic violence problem with a non-Indian beating up an
Indian woman, which we know is a common problem that we have
throughout our communities, but we can't do anything about it.
So what are we to do? The courts come to us, our courts come to
us as politicians and say, ``What are we going to do about
this?'' So we have some serious problems.
Are the county governments or State governments going to
help out? No, they're not. They have other priorities. They
have no interest in spending their resources to deal with the
problems on Indian reservations, and the attitude has not been
very encouraging over the years, even though in some areas you
will see some constructive success that is going on.
The Hicks case makes it even worse. You know, obviously,
that creates even a greater concern to us over what the Hicks
case does. In our opinion, it creates a lot of chaos and a lot
of disorder in our communities.
We can give you example after example of where there are
State and county enforcement officers who would just love to
come on and just not even respect the tribal courts and
enforcement systems with regard to matters that they believe
that they have to enforce their laws on tribal lands.
So our concern is, what are we going to do? How are we
going to fix this? Now, you know, based on our simple little
knowledge of civics, understanding how this Government works,
our understanding is that Congress makes the laws, the
administration enforces, carries out the laws, and the courts
interpret whether or not anybody is complying with those laws
and those commitments, including the treaties, which we
understand is the supreme law of the land in this country with
regard to Indian affairs.
So if the Court is now interpreting these laws and they're
now interpreting in a way that is eroding the fundamental
historical, legal, and moral commitment to Indian nations, then
where do we go? We believe that it is the responsibility and
duty of the Congress as the ultimate trustee to assist the
tribes in reaffirming our sovereign authority. The lands that
we preserved is for our people and our cultures, and the laws
that we have been establishing, the ordinances for order in our
communities are for the purposes of the welfare of our future
children. We need to have order. We need to have respect for
those laws.
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.
[Prepared statement of Mr. Allen appears in appendix.]
The Chairman. Thank you very much, Mr. Chairman.
Chief Justice Yazzie, you have testified that, as a result
of the Supreme Court's decision in the Strate case, utility
companies are now challenging the Navajo Nation's jurisdiction
over the rights-of-way. Am I correct to assume that these
rights-of-way were granted to these utility companies by the
Navajo Nation?
Mr. Yazzie. Yes.
The Chairman. That you could have turned them down?
Mr. Yazzie. Well, at the time the Navajo Nation did not
foresee any problem as a result of granting these rights-of-
ways as they do today.
The Chairman. But if an application is made today by a
utility company, you can deny that application, can't you?
Mr. Yazzie. If that's the position the Navajo Nation wishes
to take, that is correct. There's a big concern about
jurisdictional challenges granting States rights-of-way,
affects the economic stability of the Navajo Nation. The
challenge jeopardizes the Nation's ability to tax, and taxing
is very crucial to providing essential governmental services.
The Chairman. Now you have indicated that the Navajo Nation
provides services to these utility companies, such as fire
protection, police protection, et cetera?
Mr. Yazzie. Yes; the Navajo Nation does provide emergency
services in case of accidents, services such as medical, fire
protection, and police services to both Indians and non-
Indians.
The Chairman. And they are refusing to pay for those
services through taxation?
Mr. Yazzie. To our knowledge, that's the case today.
The Chairman. Now you have also stated that county police
officers are now entering the Navajo Nation and confiscating
State license plates from vehicles owned by Navajos. Do county
police officers provide Navajo Nation with any notice before
they enter Navajo Nation or do they just drive in?
Mr. Yazzie. To my knowledge, if there is a notice to
confiscate a license plate, the notice would go to the
individual. As far as I know, if the license plate is taken
away, Navjos may not have the ability to challenge or even
appear in attempting to get their license plates back. Today we
have unemployment rate of 60 percent. Most Navajos have no
steady income. It takes money to hire an advocate to handle
these kinds of matters. An individual would have to go before
the State, and it takes money to do that. Most people do not
have the job and most people cannot afford legal services to do
just that.
The Chairman. So no notice is provided to you?
Mr. Yazzie. To my knowledge, I have not seen any cases, but
if there's ever to be one, that challenge will probably go to
the courts. More then likely, State courts.
The Chairman. Navajo Nation law enforcement officers,
police officers, are they subject to civil suits if they detain
a non-Indian or non-member in a domestic violence case or
alcohol or drug-related disturbance?
Mr. Yazzie. In the Navajo Nation, if officers cause an
injury, while acting under Navajo law, they would be subject to
the Navajo Nation jurisdiction; therefore, subject to suit. But
if the Navajo Nation police officer were acting under State
law, then the State would have to determine whether the Navajo
police officers acted under the color of State law.
There was such a case in 1998. A non-Indian was arrested
for civil traffic violation, and the non-Indian told the Navajo
police officer, ``You don't have jurisdiction over me,'' and he
resisted arrest. He was arrested and taken to State facilities.
The non-Indian challenged the jurisdiction of the Navajo
Nation, and the New Mexico court of appeals dismissed the
action, saying that there was no State action pursued by the
Navajo police officer, and also the Navajo Nation is also
immune from suit.
The Chairman. Thank you very much. If I may ask Chief
Justice St. Clair, we speak of tribal sovereignty at every
hearing, every meeting. Does the tribal judiciary or the system
of courts play an important role in sovereignty?
Mr. St. Clair. I believe it's one of the most important
roles of tribal government because it deals with the day-to-day
activities that occur within the reservation. The tribal court
interprets the tribal law and the tribal custom of the tribes.
The judiciary provides a forum for establishment of membership.
Paternities are brought into our court system, so that the
process of enrollment is enhanced or carried forward.
Should the court not exist, I believe it would be a case
where there would not be equal protection of the laws because,
if an incident occurred between an Indian and a non-Indian, an
accident or whatever, the Indian would have to sue in state
court. The State courts in Wyoming today, just the past month
or so, they're still trying to get more Indians for their
juries, and there's an issue of whether they have enough
Indians on the juries even for the cases that occur off the
reservation. So they're struggling with trying to provide equal
protection in their courts, and it would be even worse if they
had to hear the cases from the reservation or if they had to go
into the Federal courts.
But I believe the tribal courts are a front-line
institution that deals with these conflicts that occur between
individuals and between individuals and society, that arise on
a day-to-day basis, especially domestic violence, drug- and
alcohol-related incidents, which are on the rise. The recent
statistics indicate that Indian reservations are the one area
where crime has arisen within the past few years as compared to
the state and Federal areas.
The Chairman. In other words, you are stating that if your
governmental powers were taken away from you, self-
determination and self-governance would be just a sham and
worthless and meaningless?
Mr. St. Clair. Correct. Government without a judiciary
really wouldn't be a government at all. If you can't adjudicate
matters that occur within the area you live, you can't regulate
those, commercial dealings would be--there wouldn't be any
place for contracts that are made by the tribe and with
businesses that come on the reservation to be heard. They would
have to be taken into State court. Many times the tribes in the
State courts, they're reluctant to take their cases in there.
For the court to interpret these, I believe that the tribe and
the business, if the court was fully funded and a stable
institution, it would provide a forum and a stable forum for
those business contracts or incidents that occur as a result of
business activity to be heard right there on the reservation.
The Chairman. You have indicated in your testimony that
non-Indians on your reservation consider themselves to be above
the law. Are you suggesting that, as a result of these Supreme
Court decisions, the level of criminal activities among non-
Indians has gone up?
Mr. St. Clair. Yes; I think just crime in general, whether
it's Indians or non-Indians, has arisen on reservations. When
an incident does occur, even if there is an extradition
procedure or agreement or a law enforcement assistance
agreement between the tribes and the county or the State
government, that just deals with how to handle the incident on
the scene. It doesn't deal with adjudication. Most of the time,
once that is completed, the non-Indian is not prosecuted. So
the result is that only the Indian people are prosecuted.
In the civil area, without having jurisdiction over or
being limited to the Montana test, to exert jurisdiction as it
now is, the non-Indian is at an advantage because he could take
the Indian into either the tribal court or the State court,
whereas the Indian can only take the non-Indian into the State
court, but not into the tribal court. So there's two choices
for him or her.
The Chairman. Thank you very much, Chief Justice.
Chairman Allen, you have been long involved in the matter
of Indian affairs. You have served as president of the National
Congress of American Indians and have been involved in not just
governing your Nation, but in representing this Nation's
tribes, 566 of them. Would you suggest or consider that the
Supreme Court decisions are at times violating treaties or
amending treaties that were entered into by Indian nations and
our Nation?
Mr. Allen. Yes, Mr. Chairman; I believe they are. I believe
that the Supreme Court is taking great liberty in their
discretion on the judicial review, and in that process, through
these decisions, are reinterpreting the commitment that this
Nation made to the Indian nations through those treaty
agreements.
The Chairman. All three of you have testified that, as a
result of the Nevada v. Hicks case, more and more State and
local police departments are coming into reservations. Are you
documenting these instances, so we can use it as evidence in
our reports?
Yes, Chief Justice?
Mr. Yazzie. Mr. Chairman, it would be nice to document,
give you numbers, but we do not have the ability to do that. We
just don't have the resources to maintain, to get statistics.
It takes money to buy computers and to develop the data
necessary to tell us something.
The Chairman. But would you say that these incidents are
commonplace?
Mr. Yazzie. Yes.
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. Yazzie. We had two U.S. Supreme Court Justices visit
the Navajo Nation in July 2001. The visit was very beneficial.
This is the first time that the U.S. Supreme Court was exposed
to how tribal courts work. They were very clear as to the
attitude of non-Indians, toward tribal justice that no matter
how well we're educated in the law, how experienced we are in
the law, how well we run the system, it's still not good
enough. There's constant challenges about our ability to
exercise jurisdiction over non-Indians. We are forever telling
the American public, our court system is very competent--I can
show you the flowchart there.
Justice Breyer looked at it and said, ``This is a very
complex and sophisticated system,'' and Justice O'Connor said,
``This is a demonstration to show that the Navajo Nation has a
competent system.'' You can tell that to the non-Indian they
still will not believe it.
Non-Indians do not understand how our legal systems work.
Today we are making the effort to let the world know. The
Navajo Nation courts, we go to law schools; we hold our oral
argument, to let the American public know, the lawyers, the
legal community, to say this is how we work; this is our law,
and it's a fair system.
I think there is an effort now to develop polls among the
American public. I think if the American public were educated
to know something about tribal courts, they would know that the
Indian courts are very human, that they care about getting to
the bottom of the problem, and that's exactly what we do as a
Navajo legal system.
We don't believe in win/lose-type adjudication. It doesn't
work. It takes a lot of money to win a lawsuit. Better yet, get
the people who are involved in the lawsuit, get them to solve
the problem, and that's exactly what we're doing with
peacemaking. We let the people, the people who are related,
solve their own problem, and it means more to them when they do
that. They are more satisfied with the outcome than they are
with the outcome of court orders.
We have to prove to the American public that our court
system is just as good as State and Federal courts, and we have
shown that, and we have gone beyond that. We have shown that
the Navajo Nation has traditional justice methods that work,
and we have been traveling to other countries, Norway,
Australia, Canada, they know about our system. We go over
there; they come to us.
Now the State courts are looking at us and ask: How do you
Navajos work your justice system? We tell them this is how we
work it. Our system is very simple. Rather than treating
somebody impersonal, you treat the parties with respect. You
treat the parties like human beings. I'll tell you, we have
done a lot in solving disputes using the Navajo mind as to how
disputes are solved.
The Chairman. Chairman Allen, what do you think?
Mr. Allen. Mr. Chairman, my answer is yes. I think that one
of the root problems that we have with this society and its
political and judicial system is it still cannot cope with the
sophistication and the ability to administer quality justice in
tribal systems. I think Chief Justice Yazzie is talking about
the educational campaign that we have to engage in. There's no
question that we have to do that here in Congress as well as in
the general public, but, yes, that is clearly a huge hurdle
that we have to overcome.
The Chairman. After two centuries, Americans are not
convinced you're equal?
Mr. Allen. That's correct.
The Chairman. Justice St. Clair?
Mr. St. Clair. Chairman Inouye, I do believe there's a
feeling that Indians are inferior within these Supreme Court
decisions. Like Justice Yazzie says, they've shown time and
time again that their system is probably the most sophisticated
of all the Indian tribes; yet, it still doesn't seem to be
sufficient.
I believe there is a fear of Indian people in general in
the Supreme Court, so that they want to do away with Indian
tribes. This judicial termination that's coming about is just
another attempt to get rid of Indian people, which has been
attempted in various ways and various methods, beginning with
extermination originally and change in vacillating between
extermination, self-determination, and allotment, assimilation,
and the policies have gone back and forth, and we're just in an
era here that happens to be within the Supreme Court another
era of termination.
However, I believe that the American public itself, and
especially when I see non-Indians come into our court system to
use the system, are very satisfied with the speed of the cases
that are processed, the fairness exhibited by the judges, the
efficiency of the clerks, and all this being done on a very,
very limited budget.
One of the questions I think that was posed to me was, what
would be the average cost of one of the cases, of our cases
that we have? It looks like the cost is somewhere around $1,200
a year. That's ideally, if we were funded fully. We're doing
that on about a third of what we asked for in our budget. So we
have to cut costs here and there. We don't have a prosecutor,
although we apply for--I mean a defender, sorry. We apply for a
defender every year. The only defense counsel that we have
available is Legal Services, which the party must be indigent
to qualify. So that leaves a vast area of people who are not
represented in tribal court. It's sort of an imbalance.
So we have some deficiencies, but 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, but the American public itself I don't believe
feels that way. I think if there was more education and more
contact and tribal courts were funded better, we could
demonstrate that we have a fair system; we have judges that
care; we have people in our system who are willing to put forth
extra effort, work long hours, to deal with our increased
caseloads, even though our taxing ability and regulatory
ability is being diminished. We have less ways to obtain
resources. Funding is tight, and we're still trying to face
these increased caseloads that we have.
The Chairman. On behalf of the committee, I would like to
thank all of the witnesses for sharing their wisdom and their
expertise with the committee.
I must apologize to all of you that the attendance has been
poor, but hope you will understand that at this moment there
are about 12 committees meeting, and this is just one of them.
So in every committee you will have situations such as this.
But I can assure you that the staff people who are sitting here
represent the members of this committee, and they will advise
their Senators as to what transpired. I will also recommend
that they read the transcript.
This has been a good day, and I can assure you that this
committee will act on this matter.
With that, the hearing is adjourned.
[Whereupon, at 4:40 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
Thank you, Mr. Chairman, for the opportunity to learn from the
testimony of legal scholars regarding recent Supreme Court rulings that
have worked to curtail tribal sovereignty. I would also like to thank
Professor Robert Anderson and the Honorable Ron Allen for making the
trip from Washington State to be with us today.
The testimony from these experts, and others here today, is
critical to our ability to help clarify the authority of tribal
governments.
United States policy toward Native Americans has certainly been
marked with inconsistencies, dramatic shifts, and reversals. In the
19th century, Native Americans were pushed onto reservations, and then
saw the reservations broken up to force assimilation. The 20th century
saw a repeat of this cycle, with the Government recreating reservations
and then later trying to terminate the Federal relationship with
tribes.
But in 1970, President Nixon announced a commitment to a new
Federal policy of tribal self-governance and self-determination. Since
then, Presidential administrations and Congress have affirmed self-
governance and self-determination in their policymaking.
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.
I am concerned that these Court rulings undermining tribal
sovereignty are making for, once again, an inconsistent Federal
relationship with tribes.
Tribal governments are responsible for providing the same services
to their communities as local, county, and State governments. It is
imperative that tribal governments be empowered with the authority and
resources to serve the people in their jurisdiction. 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. This is obviously a very complex issue, but we must ensure
that tribal governments can provide critical services to the people in
their jurisdictions, such as law enforcement.
Again, I am pleased that the committee is hearing from the scholars
and experts appearing today, and thank you all for sharing your
insights with us.
______
Prepared Statement of Robert T. Anderson, Assistant Professor of Law,
Director, Native American Law Center, University of Washington School
of Law, Seattle, WA
Good afternoon Mr. Chairman and members of the committee. Thank you
for the opportunity to present my views on the U.S. Supreme Court's
recent Indian law decisions. I teach Indian law at the University of
Washington School of Law in Seattle and I also am the director of the
Law School's Native American Law Center. Prior to joining the faculty,
I was counselor to Secretary of the Interior, Bruce Babbitt and held
the position of Associate Solicitor for Indian Affairs within the
Interior Department. I also worked as a senior staff attorney for 12
years with the Native American Rights Fund.
I was asked to address the effect of the Supreme Court's recent
decisions on the exercise of tribal authority over their territory.
Professor Getches' testimony illustrated the dramatic break the Supreme
Court has made from tradition in recent cases such as Nevada v. Hicks,
533 U.S. 353 (2001) and Atkinson Trading Company v. Shirley, 121 S.Ct.
1825 (2001). In contrast to prevailing rules, Hicks and Atkinson permit
State authority and limit tribal authority in an unprecedented fashion.
It is difficult to overstate the change in the law that has
occurred regarding tribal jurisdiction over non-Indians during the past
25 years. 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. The Court's recent presumption
against tribal authority over non-Indians on fee lands stands in stark
opposition to foundational principles of Indian law, and the actions of
Congress and the executive branch in the modern era. I begin with some
general observations on the development of Indian law and then contrast
recent trends in the Supreme Court with the actions of Congress and the
executive branch.
I. The Court's Traditional Respect for Tribal Self-Government and the
Role of Congress.
Many have questioned the moral basis for the very notion that
``discovering'' European nations were entitled to usurp the rights of
Indian tribes to deal with their own property or engage in foreign
relations.\1\ The law recognized by the Marshall Court, Cherokee Nation
v. Georgia, 30 U.S. (5 Pet.) 1 (1831); and Worcester v. Georgia, 31
U.S. (6 Pet.) 515 (1832), nevertheless provided a sound basis for legal
insulation of Indian tribes from the authority of the States. The Court
soundly rejected Georgia's attempt to assert jurisdiction over Indian
country and recognized tribes as domestic dependent Nations. 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.
---------------------------------------------------------------------------
\1\For criticism of the foundations of Indian law in the United
States, see Williams, The Algebra of Federal Indian Law: The Hard Trail
of Decolonizing and Americanizing the White Man's Indian Jurisprudence,
1986 Wisc. L. Rev. 219.
---------------------------------------------------------------------------
The independence of tribes was even recognized to some degree in
relation to the Federal Government. In Ex Parte Crow Dog, 109 U.S. 556
(1883) the Court followed the basic principles of the Marshall Court
and ruled that the murder of one Indian by another within Indian
country was not a criminal offense punishable by the United States.
This was not because the United States lacked power over Indian
country, but because Congress had not expressly legislated in the area.
In short, Indian tribes and their territory were free of regulations by
other sovereigns absent explicit direction from Congress.
Cases that followed, such as United States v. Kagama, 118 U.S. 375
(1886) (upholding the power of Congress to adopt the Major Crimes Act)
and the infamous case of Lone Wolf v. Hitchcock, 187 U.S. 553 (1903),
cemented the central role of Congress in Indian affairs as provided in
the Indian Commerce Clause. In Delaware Tribal Business Committee v.
Weeks, 430 U.S. 73 (1977) and United States v. Sioux Nation, 448 U.S.
371 (1980) the Court made clear that there were some limits to
Congress' plenary power over Indian affairs. Congressional action had
to be tied rationally to fulfillment of Congress' unique obligation
toward the Indians\2\ and congressional acts allegedly taking Indian
property would be thoroughly reviewed for consistency with the United
States' role as trustee.
---------------------------------------------------------------------------
\2\ Morton v. Mancari, 417 U.S. 535 (1974).
---------------------------------------------------------------------------
The development of the Court's general doctrine up to the Oliphant
decision in 1978 reveals considerable deference to congressional action
and continuation of rules that insulated Indian tribes from state
authority. In the case Williams v. Lee, 358 U.S. 217 (1959) the Court
ruled that disputes over debts incurred on an Indian reservation must
be heard in tribal court because allowing State court jurisdiction
infringed on the right of tribal self-government. Similarly, in Fisher
v. District Court, 424 U.S. 382 (1976) state court jurisdiction was
denied over an adoption proceeding involving tribal members. The Court
reasoned that denying State court access furthered the congressional
policy of tribal self-government. 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 approach, however, took note of the fact that Congress
regularly legislated in the area of Indian affairs and made adjustments
to the doctrine rooted in the decisions of the Marshall Court. For
example, in response to the ruling in Ex Parte Crow Dog, Congress
adopted the Major Crimes Act, 18 U.S.C. Sec. 1153, and thus provided
for Federal jurisdiction over certain criminal acts. Likewise, in
Public Law 280, Congress provided for State court jurisdiction to hear
civil causes of action and enforce State criminal law within Indian
country. See Bryan v. Itasca County, 426 U.S. 373 (1976). The Court
thus adhered to the general rule that State regulatory or judicial
jurisdiction within tribal authority is prohibited unless Congress sees
fit to alter the status quo.
The same rule applied to Federal court incursions on tribal
authority and thus buttressed the notion of tribal independence. In
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) the Court refused to
allow Federal courts to hear alleged violations of the Indian Civil
Rights Act (ICRA). The Court rested on the bedrock principles that
tribes are autonomous, absent governing acts of Congress. The Court
also took notice of the fact that Congress had expressly provided for
Federal court review in habeas corpus actions. It was accordingly
appropriate for the Court to leave it to, Congress to determine whether
to further intrude on tribal self-government by providing for Federal
court review of alleged violations of ICRA.
While the Court's decision in Santa Clara Pueblo remains
controversial, Congress has not chosen to alter the law. There have,
however, been several oversight hearings dealing with the issue of
enforcement of the Indian Civil Rights Act over the past several years.
As an Administration witness in two of those hearings, I can attest to
the value of direct dialog between Congress, Indian leaders and the
executive branch on the important policy issues. Through such a process
adjustments that are found to be necessary may be made Congress, not
the courts and only after a dialog with the tribes.
It is thus evident that the course followed by the Supreme Court
from the Marshall Court up to the Oliphant decision was marked by
judicial restraint with respect to tribal powers. Through the varying
policy eras employed by Congress and through the beginning of the self-
determination era, on thing remained clear--it was Congress not the
Supreme Court that decided policy in the Indian law area. Congress thus
legislated against a static judicial backdrop that recognized tribal
autonomy unless clearly altered by Congress. The current Supreme Court
has turned this principle on its head, thus prompting the need for
congressional action. As detailed below, the Court's current approach
is completely at odds with modern congressional and executive branch
policies.
II. Modern Congressional Acts Support the Role of Tribes as Governments
with Comprehensive Authori1y Over Their Territory.
The vacillation in congressional policy with respect to the role of
Indian tribes in the United States is well-known. The formative years
of Indian policy saw the development of the guardian-ward relationship
as evidenced in the Trade and Intercourse Acts beginning in 1790. This
protective assertion of a monopoly over land transactions with Indian
tribes soon gave way to the removal statutes and the forced relocation
of Indian tribes from the East to the Oklahoma Territory and other
parts of the West. Soon thereafter, in the treaty era, the President's
agents negotiated treaties with western tribes to obtain peace and
cessions of vast areas of land. In exchange, the United States promised
permanent homelands, obtained peace and often guaranteed certain off-
reservation rights. See Washington v. Passenger Fishing Vessel Ass'n.,
443 U.S. 658 (1979). The treaty era was supplanted by the allotment
policy and the attempt to assimilate Indians into mainstream American
society in the fashion of yeoman farmers.
The failure of that policy demonstrated the need for major change.
The Indian land base had been reduced by nearly two-thirds and it was
clear that assimilation of Indian people was not going to occur. All of
this prompted passage of the Indian Reorganization Act of 1934 [IRA],
which provided substantial support for tribal governments and was
geared toward protecting the remaining Indian land base.
Not long after passage of the IRA, Congress again shifted its
approach and called for the termination of a number of tribes in the
United States. This ``termination'' of the Federal-tribal relationship
for some Indian tribes was accompanied by the adoption of Public Law
280, which authorized (and in some instances required) States to extend
their jurisdictional reach into Indian country. This termination period
galvanized Indian tribes to fight for their political existence and
prompted the congressional termination experiment to fizzle out by the
early 1960's. See Stephen Cornell, The Return of the Native 123-124
(1988).
The Indian Civil Rights Act of 1968 marked another turning point
for congressional policy. While the act's application of certain
provisions of the Bill of Rights to Indian tribes can be seen as a
further diminishment of tribal autonomy, it is equally plain that the
act contemplated the continued existence of Indian tribes as vibrant
governments exercising governmental power over their territory and the
people present therein. President Nixon's message to Congress in 1970
announced the policy of ``self-determination without termination.''
H.R. Doc. No. 91-363, 91st Cong., 2d Sess. (July 8, 1970). That marked
the course that Congress and the Executive have followed to this day
and stands in stark contrast to decisions such as Strate, Atkinson and
Hicks.
There is likely no statute that surpasses the Indian Self-
Determination and Education Assistance Act of 1975, 25 U.S.C. Sec.
450, et seq., in importance and effectiveness. The act allows tribes to
operate dozens, if not hundreds, of programs previously carried out by
Federal agencies like the Bureau of Indian Affairs and the Indian
Health Service. Congress has amended the statute on a number of
occasions to spur the executive branch to contract more and more
programs out for tribal administration and with increased flexibility
for the tribes. See 25 U.S.C. Sec. Sec. 458aa, et seq. The Self-
Determination Act and Self-Governance Act have assisted in building
tribal governmental infrastructure, while maintaining the Federal-
tribal trust relationship. Other statutes provide directly for the
exercise of tribal or delegated Federal authority of tribal territory
and all those within it. Examples include the Indian liquor laws, 18
U.S.C. Sec. 1152,\3\ and a number of environmental statutes. The Clean
Air Act, 42 U.S.C. Sec. Sec. 7401-7642 directs the Administrator of
the EPA to treat Indian tribes as States under the act. Tribes exercise
delegated Federal authority over members and non-members within Indian
country. Similarly, the Clean Water Act, 33 U.S.C. Sec. Sec. 1251-
1377, provides that tribes may be treated as States and exercise either
inherent, or delegated authority over members and non-members within
Indian country. See city of Albuquerque v. Browner, 97 F.3d 4l5 (10th
Cir. 1996); and Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998). See
also, Safe Drinking Water Act, 42 U.S.C. Sec. 300j-f; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sec. Sec. 9601-9657; Surface Mining Reclamation Act, 30 U.S.C.
Sec. Sec. 1201-1328; and Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. Sec. Sec. 136-136y (all providing for some
measure of tribal authority over land for both members and non-
members).\4\
---------------------------------------------------------------------------
\3\ See United States v. Mazurie, 419 U.S. 544 (1975).
\4\ Compare Backcountry Against Dumps v. Environmental Protection
Agency, 100 F.3d 147 (D.C. Cir. 1996) (setting aside EPA's treatment of
tribe as a State under the Resource Conservation and Recovery Act, 42
U.S.C. Sec. Sec. 6901, et seq. as not authorized by statute).
---------------------------------------------------------------------------
Even a cursory review of the United States Code reveals the broad
scope and support of Congress for the welfare of tribes and their
members, as well as their ability to govern their reservations. See,
e.g., 25 U.S.C. Sec. 4301, et seq. (Native American Business
Development Act of 2000); 25 U.S.C. Sec. 4101, et seq. (Native
American Housing Assistance Act of 1996); 25 U.S.C. Sec. 3601, et seq.
(Indian Tribal Justice Act of 1993); 25 U.S.C. Sec. 3201, et seq.
(Indian Child Protection and Family Violence Act of 1990); 25 U.S.C.
Sec. 2701, et seq. (Indian Gaming Regulatory Act of 1988); and 25
U.S.C. Sec. 1901, et seq., (Indian Child Welfare Act of 1978). The
point here is that Congress has unequivocally acted to support Indian
tribes and has even delegated Federal authority to tribes in many
circumstances.
By way of contrast, since the passage of the Self-Determination
Act, the Supreme Court has gone out of its way to implement long-
abandoned policies that increase state authority and reduce the power
of tribes. For example, in County of Yakima v. Yakima Indian Nation,
502 U.S. 251 (1992), the Court stretched to implement policies embodied
in an obscure proviso the repealed allotment act in order to uphold
county real estate taxes on tribal property. The Court appears
oblivious to the past 35 years of congressional policy even as it
abandons the previous 140 years of Supreme Court doctrine.\5\ It bears
emphasizing that even as Congress implemented failed policies such as
allotment, assimilation and termination, the Supreme Court during that
time adhered to the basic policy enunciated by the Marshall Court.
Thus, in 1883 which was the heart of the assimilation era, the Court
secured tribal Indians from Federal prosecutions in recognition of
their status as separate sovereigns. Likewise, during the termination
era of the 1950's the Court upheld the right of ``Indians to make their
own laws and be ruled by them.'' The Court thus adhered to the Marshall
Court's rule that Indian tribal powers and immunities continue until
Congress acts clearly to diminish those powers, or authorizes state
incursions into Indian country.
---------------------------------------------------------------------------
\5\ The Honorable Judge Canby's testimony eloquently reveals the
Supreme Court's doctrinal evolution.
---------------------------------------------------------------------------
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.
III. Executive Branch Policies Similarly Support Indian Tribe
Jurisdiction.
Although Congress has paramount authority in the field of Indian
affairs, the actions of the executive branch are also worthy of
consideration. Beginning with President Nixon's announcement of the
self-determination policy, every Administration has supported the role
of tribes as sovereign governments within the United States. Most
recently, President Clinton issued an Executive order calling on all
Federal agencies to engage in ``Consultation and Coordination with
Indian Tribal Government.'' E.O. No. 13175, 65 Fed. Reg. 67249 (Nov. 6,
2000); see also, Memoranda of the President, 59 Fed. Reg. 22951 (April
29, 1994), Government to Government Relations with Native American
Tribal Governments. Similarly, the Secretaries of the Interior and
Commerce have issued orders calling on their subordinate agencies to
consult with Indian tribes in the implementation of the Endangered
Species Act. Secretarial Order Nos. 3206 and 3225 (Orders applicable to
Indian tribes in the lower 48 States and Alaska respectively).
The executive branch, through the Justice Department, has supported
Indian tribes in the recent cases before the Court (Strate, Atkinson
and Hicks) and has actively supported Indian treaty rights in cases
such as United States v. Washington and United States v. Michigan. The
Justice Department also supported the tribes in the Indian gaming
case--Florida v. Seminole Tribe of Indians. When the Supreme Court
ruled in favor of the State by upholding Florida's sovereign immunity,
the Department of the Interior exercised its authority to fill the gap
caused by the ruling and promulgated a rule in support of Indian
gaming. Administrative agencies, however, are limited in terms of their
authority and only Congress can right the wrongs committed by the
Supreme Court.
Conclusion
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. I commend the
Chairman and members of the committee for holding this hearing.
Thank you very much. I would be pleased to answer any questions.
______
Prepared Statement of John St. Clair, Chief Judge, Shoshone and
Arapahoe Tribal Court, Wind River Indian Reservation, Wyoming
Good afternoon Chairman Inouye and distinguished members of the
Senate Committee on Indian Affairs. Thank you for the invitation to
come before you today to testify about a topic that has had a major
impact upon the powers and authorities of Indian tribal governments.
My name is John St. Clair. I am an enrolled member of the Eastern
Shoshone Tribe of the Wind River Indian Reservation located in west
central Wyoming. I am an attorney licensed in Wyoming and have been
sitting as chief Judge of the Shoshone and Arapahoe Tribal Court since
1983. I am president of Wyoming Legal Services, president of Montana-
Wyoming Tribal Judges Association and a member of the board of
directors of the National American Indian Court Judges Association
[NAICJA].
The Wind River Indian Reservation is jointly owned by the Eastern
Shoshone and Northern Arapahoe Tribes [the tribes]. It is approximately
3,500 square miles in area inhabited by about 12,000 members of both
tribes and other tribes, along with about 25,000 non-Indians.
The Shoshone and Arapahoe Tribal Court through a comprehensive Law
and Order Code extends jurisdiction over all Indians who commit
offenses prohibited in the Code and over all persons who have
significant contacts with the reservation. The Court consists of a
chief judge who must be a professional attorney and three associate
judges. There is a Court of Appeals comprised of the remaining three
judges who did not hear the case. Jurisdiction is limited by applicable
Federal law. Total case load for 2001 was approximately 3,500.
IMPACT OF RECENT SUPREME COURT DECISIONS
Recent U.S. Supreme Court decisions have become a major concern to
the tribes due to their intensified passion to limit the sovereignty of
Indian tribes. In particular, within the past 10 years tribes have lost
23 of 28 cases argued before the Court. Since the case of Oliphant v.
Suquamish Tribe, 435 U.S. 191 (1978), where the Court held by
implication that tribes are without inherent jurisdiction to try non-
Indians for crimes, a new doctrine has emerged that tribes lack certain
powers that are inconsistent with their dependent status even, when
Congress has not acted to curtail those powers. This new doctrine has
been extended to the civil regulatory area by Montana v. United States
450 U.S. 544 (1981), the adjudicatory area by States v. A-1
Contractors, 520 U.S. 438 (1997) and in 2001, in Atkinson Trading Post
v. Shirley, 531 U.S. 1009 (2001) to a hotel occupancy tax imposed by
the Navajo Nation. The most recent extension of the doctrine is Nevada
v. Hicks, 121 S. Ct. 2304 (2001) where it was held that tribes lack
jurisdiction over civil suits against State officials for violating the
rights of Indians on Indian land within a reservation.
The impact of Oliphant and its progeny on the powers and
authorities of Indian tribal governments is that it severely restricts
the ability to exercise basic regulatory and adjudicatory functions
when dealing with everyday activities on reservations. When both
Indians and non-Indians are involved in domestic violence, alcohol and/
or drug related disturbances or a other criminal activity, tribes can
adjudicate only Indians while non-Indians, even when detained and
turned over to State authorities, go unpunished. This double standard
of justice creates resentment and projects an image that non-Indians
are above the law in the area where they choose to reside or enter
into.
The affect on tribes of not being able to regulate taxing, hunting
and fishing, the environment, zoning, traffic, et cetera placed
limitations on economic development and self-sufficiency. Without the
ability to generate revenues to fund basic governmental functions,
tribes become more and more dependent on Federal grants, contracts and
compacts, as a sole source of funding, This results in an increased
economic burden that ultimately falls on the Federal Government.
Tribal courts constitute one of the frontline institutions
confronted with the issues involving sovereignty, while charged with
providing reliable and equitable adjudication of increased numbers of
criminal matters and complex civil litigation. Tribes and their court
agonize over the same issues State and Federal courts confront. Child
sexual abuse, alcohol and substance abuse, gang Violence, violence
against women, child neglect, pollution of the air, water, and earth,
are just some of these common yet complicated problems that arise on
Indian reservations. The vast panorama of cases handled by the 500 plus
tribes in their courts would significantly increase the caseloads of
Federal District Courts and also local State courts, if tribal courts
no longer existed. The increased cost to Federal and State courts would
also result in major budget short falls.
CONCLUSION
The recent trend of the U.S. Supreme Court toward judicial
termination poses the greatest threat to tribes since the allotment era
of the 19th Century and Congressional termination of the mid-20th
Century. This trend runs counter to the proclaimed Federal policy of
self-determination that has repudiated the allotment and termination
policies.
America's Third Sovereign, the Indian tribes, occupying Indian
country come before this distinguished body to ask that you utilize the
plenary power of Congress in Indian affairs conferred upon you by the
Indian Commence Clause, article 1, section 8, clause 3, of the U.S.
Constitution. We request that you restore and reaffirm the inherent
regulatory and adjudicatory authority of tribes over all persons and
all land within Indian country as defined in 18 U.S.C. Sec. 1151. This
approach would place the exercise of jurisdiction in the hands of the
tribes and the extent of it within their organic documents and case law
making it a question of tribal law.
Again I want to thank you for this unique opportunity that you have
provided on behalf of my tribes and all the Indian tribes.
______
Prepared Statement of William C. Canby, Jr. Judge, U.S. Court of
Appeals for the Ninth Circuit
Good morning Mr. Chairman and members, of the committee. I appear
here as a former professor of Indian Law who has worked on technical
assistance programs with tribal courts over the years. For the past 21
years I have been a judge of the U.S. Court of Appeals for the Ninth
Circuit, and am chair of the Ninth Circuit Council Committee on Tribal
Courts. I preface all of my remarks with the disclaimer that the views
I express are my own; I cannot and do not speak for my court or the
Federal judiciary in general.
I have been asked to elaborate on recent trends in the Indian Law
decisions of the Supreme Court during the past several years
particularly with reference to a divergence between the trend of those
decisions and the Indian Law policies of Congress and the executive
branch.
Others will describe for the committee the general historical
overview of Indian Law, in terms of judicial decisions, legislation,
and actions of the executive branch. I wish to focus on a few recurring
themes in the line of Supreme Court decisions in the past 30 years, to
emphasize the development of certain doctrines that have, in my view,
led to decisional law that has significantly changed the legal status
of Indian tribes in ways that differ from earlier decisional law and
from the patterns set by Congress and the executive branch. The
doctrines of the Supreme Court that I will discuss involve: (1)
preemption analysis when State interests conflict with tribal
interests; (2) the discovery of new limitations on tribal power because
of the tribes' status as domestic dependent nations; and (3) the
diminishing role of territoriality in the concept of tribal power. I
will then discuss one example of congressional overruling of a Supreme
Court decision and some of the questions that arose in its aftermath.
The basic judicial concepts of Indian Law were, of course,
established by Chief Justice John Marshall in the Cherokee cases. He
recognized tribes as self-governing bodies that he termed ``domestic
dependent nations'' in Cherokee Nation v. Georgia, 30 U.S. 1 (1831),
and then held that the Cherokee Nation governed a distinct territory
``in which the laws of Georgia can have no force.'' Worcester v.
Georgia, 31 U.S. 515 (1832). In holding that the tribes enjoyed a
special relationship with the United States, and that the States did
not exercise power over the tribes or their territories, Marshall was
acting entirely consistently with the series of Trade and Intercourse
Acts that had been passed by Congress, beginning with the first
Congress in 1790. 1 Stat. 137 (1790).
Over the ensuing years there were major movements in Indian law
initiated by Congress or the executive branch, including the removal of
tribes to the west and, in the 1880's, a policy of allotment designed
to break up the tribal landholdings into small individual farms. Many
years later, Congress acknowledged that the allotment policy had been a
disaster and enacted the Indian Reorganization Act of 1934, which was
based on the proposition that the tribes were here to stay as self-
governing bodies with power over their territories. There was an
interruption in this view during the 1950's, when congressional acts
were passed to terminate the special relationship between specified
tribes and the Federal Government. At the same time, Public Law 280
extended the civil and criminal jurisdiction of certain named States
into Indian country, and permitted other States to elect to do the same
without tribal consent. This period of ``termination'' came to an end
with the passage of the Indian Civil Rights Act of 1968 and the
President's statement on Indian affairs in 1970. Since that time, such
measures as the Indian Self-Determination and Education Assistance Act
of 1975 and the Indian Tribal Government Tax Status Act of 1982, have
clearly signaled a congressional policy of encouraging tribal self-
government.
Tribal self-government was also supported by the Supreme Court in
the 1959 case of Williams v. Lee, 358 U.S. 217. In holding that a non-
Indian was required to go to tribal court to sue an Indian over a debt
incurred in a transaction on the reservation, the Supreme Court stated
that its ruling was necessary to preserve ``the right of reservation
Indians to make, their own laws and be ruled by them.'' Id. at 220.
Notably, this right of self-government was protected by requiring a
non-Indian to come to tribal court. Williams v. Lee was an important
modern foundation of decisional Indian law, and under its regime all
three branches of the Federal Government by 1970 were united in a
strong view of tribal self-government over tribal territories.
The 1970's marked the beginning of a shift in the Supreme Court
away from a view of the tribes as entities with full governmental power
over their territories. The first doctrinal step occurred in a case
generally regarded as a victory for the tribes--McClanahan v. Arizona
Tax Commission, 411 U.S. 164 (1973). That case held that Arizona could
not tax the income of an Indian earned on a reservation, but the
analysis contained the seeds of a diminution of tribal power.
McClanahan considered tribal sovereignty to be a mere ``backdrop'' for
the determination of whether States could exercise their power over
subjects in Indian country. If Federal laws and treaties, read against
the backdrop of sovereignty, preempted State power, then the State was
excluded. This analysis reversed a previous presumption: that States
had no power in Indian country unless some positive reason (or
legislation) existed to extend it there. Under the McClanahan approach,
State power extended into Indian country unless a positive Federal law
or policy excluded it. Thus preemption doctrine, as it has been
formulated since McClanahan favors the extension of State power into
Indian country. An example is Cotton Petroleum Corp. v. New Mexico, 490
U.S. 163 (1989), which permitted a State to impose a severance tax on
non-Indian oil and gas lessees on a reservation, even though the tribe
also imposed a tax.
A far greater doctrinal limitation on Indian tribal power was
employed in Oliphant v. Suquamish Indian Tribe, 435 U.S. 1911 (1978),
which held that tribes had no criminal jurisdiction over non-Indians
who committed crimes on their reservations. The Court held that
exercise of criminal jurisdiction over non-Indians would be
inconsistent with the status of the tribes as domestic dependent
nations. Chief Justice Marshall, who had characterized tribes as
domestic delineated only two limitations dependent nations in Cherokee
Nation v. Georgia, delineated only two limitations on full sovereignty
that attended the tribes' status as domestic dependent nations: (1)
they could not alienate their land other than to, or with the consent
of, the Federal Government, and (2) they could not enter treaties or
other agreements with foreign nations. For 150 years these limitations
we're generally assumed to be the only two that flowed from the tribes'
status. Oliphant came up with a new limitation, and since that time,
other Supreme Court decisions have proliferated the limitations that
are deemed to arise from the tribes' domestic dependent status. Thus,
in Montana v. United States, 450 U.S. 544 (1981), a tribe's regulation
of non-Indian hunting on non-Indian land within the reservation was
held to be inconsistent with the tribe's domestic dependent status. One
case went so far as to state that a tribe's domestic dependent status
prevented it from adopting preemptive regulation of liquor sales on its
reservation. Rice v. Rehner, 463 U.S. 713, 726 (1983). Tribes were held
to lack criminal jurisdiction over non-member Indians because of their
domestic dependent status. Duro v. Reina, 495 U.S. 676 (1990). And,
under the refinement introduced by Montana v. United States, which I
will discuss in a moment, tribes have been held to lack inherent
authority to adjudicate civil disputes between non-members arising out
of activities on a highway right-of-way within the reservation. Strate
v. A-I Contractors, 520 U.S. 438 (1997). Most recently, tribes have
been held to be precluded by their domestic dependent status from
collecting a hotel room rental tax from a non-Indian hotel on non-
Indian fee land within a reservation. Atkinson Trading Co. v. Shirley,
532 U.S. 645 (2001), and from regulating the activities of State law
enforcement officers executing a search warrant of an Indian dwelling
on Indian land within the reservation, when the investigation concerns
a crime allegedly committed off-reservation. Hicks v. Nevada 121 S.Ct.
2304 (2001).
These recently announced additional limitations on the powers of
tribes because of the tribes' domestic dependent status create numbers
of questions for lower courts. It is easy for historical reasons to
understand why tribes could not alienate their land except to, or with
the consent of the Federal Government, and it is easy for reasons of
international law to understand why tribes are not allowed to enter
treaties with foreign nations. Both of these limitations are
explainable as inherent in the status of the tribes as internal nations
owed a duty of protection by the Federal Government. But the new
limitations On tribal sovereignty do not seem to have such compelling
necessity behind them. Tribes could exercise criminal and civil
jurisdiction over persons within their territory without torturing
their status as domestic dependent nations. So it is difficult to
predict when a challenged exercise of tribal power is to be upheld on
the ground that the power is inconsistent with the tribe's domestic
dependent status. One way of drawing a bright line, and that indeed
seems the direction in which things are going, is to say that a tribe
has no power over non-members at all. Such a rule provides certainty,
but leaves the tribe with almost no governmental power at all, greatly
reducing tribal authority below the level it enjoyed under Williams v.
Lee and below the level that is contemplated by existing legislation
Congress and policies of the executive branch. Short of that drastic
formulation, it is difficult under the current trend of Supreme Court
decisions to draw a predictable line defining what tribes may do or not
do as domestic dependent nations.
Perhaps the watershed case of recent times, although did not appear
to foreshadow such immense changes when it was announced, is Montana v.
United States, 450 U.S. 544 (1981). That decision held that a tribe, as
a domestic dependent nation, had no power to regulate hunting and
fishing by non-Indians on non-Indian fee land within a reservation. At
the time this ruling did not appear to be a large exception to the
general proposition that tribes could regulate non-Indian activity
within their reservation; Montana freely acknowledged that tribes could
regulate or prohibit hunting or fishing on Indian lands within the
reservation. Moreover, there were two acknowledged exceptions that
permitted tribes to regulate non-Indian activity even on non-Indian fee
land: (1) the tribe could regulate activities of non-members who
entered consensual relationships with the tribe or its members, such as
leases or licenses; and (2) the tribe could regulate activities of non-
members on fee land that, ``threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of
the tribe.'' Id. at 566. This latter exception, with its language
reflecting the traditional view of a State's police power, suggested
that a tribe could regulate non-Indians whenever its reasonable
interests supported such regulation.
Montana contained some expansive language, however, describing
tribal sovereignty in terms of power over members, implying the absence
of power over others. In later years, the Supreme Court has emphasized
this aspect of the Montana opinion. The fact that Montana was an
exception to the general rule that tribes could regulate non-member
activity, within their borders seems to have disappeared from sight. In
later cases, the Montana exception has become the Montana ``rule'' that
tribes have no power over nonmembers. In Strate v. A-1 Contractors, 520
U.S. 438 (1997), for example, the Supreme Court held that a tribe had
no regulatory authority over nonmember activities on a State highway
right-of-way through the reservation; even though the highway was on
tribal land, not fee land, the tribe had given up the right to exclude
and therefore the Court treated it as if it were fee land. The Court
also concluded that a tribe's adjudicatory jurisdiction (by civil suit
in tribal court) could not exceed its regulatory jurisdiction. It is
difficult to see where this limitation came from. Most courts, of
course, are not so restricted; an Arizona court can entertain a case
arising from an automobile accident in New York even though Arizona
would have no authority to regulate the conduct of the parties in New
York.
Most egregiously, Strate held that a highway accident within the
reservation did not affect the welfare of the tribe, so as to fall
within the second exception prescribed by Montana. Strate stated:
``Undoubtedly, those who drive carelessly on a public highway
running through the reservation endanger all in the vicinity, and
surely jeopardize the safety of tribal members. But if Montana's second
exception requires no more, the exception would severely shrink the
rule.''
520 U.S. at 457-58. But this formulation ignores the fact that the
Montana rule was itself an exception. If, as a general proposition, it
is improper to permit exceptions to swallow rules, then Montana itself
should be narrowly construed, so that it does not erode the general
rule that tribes have regulatory jurisdiction over activities on their
reservations. Accordingly, Montana's exceptions, being exceptions to an
exception, must be construed broadly.
The Montana rule continued to be broadened, and its exceptions
narrowed, to the detriment of tribal power in two decisions of last
term, Atkinson Trading Co. v. Shirley 532 U.S. 645 (2001), and Nevada
v. Hicks, 121 S.Ct. 2304 (2001).
Atkinson held that the Navajo Nation could not tax room rentals in
a trading post hotel on fee land within the reservation, even though
the trading post benefited from various tribal services. The Supreme
Court applied Montana and, again, read the exceptions narrowly. License
as a trading post was not closely enough related to operation of a
hotel to fall within the ``consensual'' exception, and the second
exception to Montana did not apply because ``[w]hatever effect
petitioner's operation of the Cameron Trading Post might have upon
surrounding Navajo land, it does not endanger the Navajo Nation's
political integrity.'' 532 U.S. at 659. Perhaps most interesting of
all, Justice Souter (joined by Justices Kennedy and Thomas) entered a
concurring opinion stating that ``[i]f we are to see coherence in the
various manifestations of the general law of tribal Jurisdiction over
non-Indians, the source of doctrine must be Montana v. United States.''
And, he continued, Montana's principle that tribal authority does not
extend to non-members should apply ``whether the land at issue is fee
land, or land owned by or held in trust for an Indian tribe.'' Id. at
659-60. Under this apparently developing view, tribes lose the power to
regulate non-members on trust land, a power that was accepted as a
given in Montana.
Hicks took the last step, in holding that tribes had no power to
regulate the activities of State law enforcement officers executing a
search warrant against an Indian on tribal land within a reservation.
The Supreme Court's opinion states that the Montana ``rule'' that
tribes have no inherent power to regulate nonmember activity applies on
tribal as well as fee lands! Once that proposition is established, then
under Strate a tribal court could not entertain civil suit against the
officers for exceeding the scope of the warrant because a tribe's
adjudicatory jurisdiction cannot exceed its regulatory jurisdiction.
The expansive rationale of Hicks represents an astonishing
diminution in the control that tribes may exercise over their own
reservations. Montana assumed that tribes could control non-Indians,
but carved out an exception for non-Indian hunting and fishing on
Indian land if it was not consensual with the tribe and did not affect
the welfare of the tribe. In Hicks, Montana is invoked as support for
the proposition that the tribe cannot regulate non-members even on
tribal land, unless the activity falls within two exceptions that are
being ever-more-narrowly construed. It is clear that, between the dates
of Montana and Hicks, a major shift has occurred in the Supreme Court's
view of tribal authority.
One characteristic of the considerable shift in the Supreme Court's
recent Indian Law cases is the movement away from a territorial view of
tribal power. To John Marshall in the Cherokee cases, tribal power was
clearly territorial; the 12 tribes exercised power over their
reservations and the laws of Georgia could not, intrude. Later in the
19th century, State law was permitted to govern the activities of non-
Indians on reservations, so long as the activity did not involve
Indians or have an effect on Indians. There was no reason to doubt,
however, that enough of John Marshall's original concept remained so
that tribes could govern their territories largely in the way that any
other sovereign did. If the tribes' power over non-Indians was rarely
exercised, it had not been negated. And as tribal governments were
buttressed by the Indian Reorganization Act of 1934, it was natural to
assume and expect an increasing exercise of tribal powers over the
reservation.
The Oliphant decision put a stop to this trend by holding that
tribes had no criminal jurisdiction over non-Indians. At about the same
time, the Supreme Court decided United States v. Wheeler, 435 U.S. 313
(1978), which for the first time made the jurisdictional distinction
not between Indians and non-Indians, but between tribal members and
non-members. Thus began a shift in emphasis from tribal power as
governmental power over a territory to tribal power as a function of
membership. Without a territorial concept, any analysis of challenged
governmental power is likely to be very restrictive. It is very
difficult to conceive of a government that wields power other than over
a territory; we do not regard governments-in-exile, for example, as
real governments--they are potential governments that presume to become
governments over a territory. When tribal power is viewed only through
a membership lens, then tribal power is automatically restricted to
power over members, leaving tribes with no more governmental power than
a club or a union or a church may exercise over its members.
Until recently, the courts in deciding jurisdictional questions in
Indian law looked to Congress's definition of Indian country for
criminal-law purposes, which included all land within the exterior
boundaries of a reservation whether owned in fee by non-Indians or not.
See 18 U.S.C. Sec. 1151. Montana, however, introduced a new
distinction between tribally owned land and fee land within a
reservation. Later another wholly new, but less frequently used,
distinction was introduced between ``open'' and ``closed'' portions of
a reservation for purposes of tribal zoning. Brendale v. Confederated
Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989). The
tribe was permitted to exercise zoning authority over all lands in the
closed portion.
Almost every move away from a purely geographical delineation of
tribal power has resulted in a diminution of that power. In 1982, when
a more expansive view of tribal power still obtained in some fields,
the Supreme Court upheld a tribal tax on non-Indian mineral lessees of
tribal property and in doing so the Court was careful to assert that
the power to tax did not depend only on the tribe's power to exclude
persons from its reservation: ``it derives from the tribe's general
authority, as sovereign, to control economic activity within its
jurisdiction.'' Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).
By the time of Atkinson last year, however, Montana controlled and a
tribe could not tax non-Indian activity on fee land (with three
justices asserting that it made no difference whether fee land or
tribal land was involved).
Another facet of a non-geographical approach to tribal power is
illustrated by Strate v. A-1 Contractors, which held that tribes could
not regulate non-Indian activity on a highway located on Indian land
within a reservation because the right-of-way deprived the tribe of the
power to exclude. Under Merrion's more expansive view of tribal power,
jurisdiction to regulate would not have depended on a right to exclude.
The trend, therefore, away from a territorial-geographical view of
tribal governmental power is one more facet of the general shift in
Supreme Court jurisprudence toward a highly restrictive view of tribal
authority.
All of these doctrinal trends of the Supreme Court cases, which
have led to a far more restrictive view of tribal power than existed in
the 1960's, were judicial constructs. The Supreme Court did not take
its lead in these matters from congressional or executive policies.
Indeed, as I observed earlier, Congress in 1934, and again consistently
since 1968, has placed its emphasis on the strengthening of tribal
self-government. The executive branch has done the same since 1970. It
is hard to see where the new direction in restricting power comes from,
other than from the Supreme Court.
In fairness, the Supreme Court has acknowledged that its actions
dealing with tribal authority were taken in the absence of controlling
statutes, and have recognized the appropriateness of Congress
delineating the extent of tribal authority. See, e.g. Oliphant, 435
U.S. at 212. It is also possible that at least some of the Justices
have not understood what an enormous change their recent jurisprudence
represents in Indian country. In Hicks for example, the State judge had
done what virtually any State judge in the West would have done in the
last 50 years; he told the State officers that his writ was of no
effect against an Indian on the reservation and that any search warrant
he issued would have to be approved by the tribal court before it could
be executed on the reservation. Under the rationale of the Supreme
Court in Hicks, however, the State judge was just engaging in an
unnecessary nicety; the tribe had no authority at all over the State
officers on the reservation. Similarly, the extradition arrangements
that many tribes have worked out with the States over the past decades
are just so much waste paper; no extradition is necessary under the
rationale of Hicks. Hicks thus upsets settled expectations in Indian
country to a degree that may not have been apparent to all of the
Justices (or many others). Just how disruptive Hicks will be may depend
on the local relationship between particular tribes and the State and
local governments; some may continue to function cooperatively as
before. As a matter of doctrine, however, Hicks does not encourage such
cooperation, and removes its necessity.
There was an instance about a decade ago when Congress promptly
overruled a decision of the Supreme Court dealing with tribal power. In
Duro, v. Reina, 495 U.S. 676 (1990), the Supreme Court ruled that it
was inconsistent with the domestic dependent status of tribes to
exercise criminal jurisdiction over non-member Indians who commit
crimes in Indian country. Congress, first temporarily and then
permanently, overruled this decision by enacting the following
provision:
(1) ``Indian tribe'' means any tribe, band, or other group of
Indians subject to the jurisdiction of the United States and recognized
as possessing powers of self-government.
(2) ``Powers of self-government'' means and includes all
governmental powers possessed by an Indian tribe, executive,
legislative, and judicial,..; and means the inherent power of Indian
tribes, hereby recognized and affirmed, to exercise criminal
jurisdiction over all Indians.
25 U.S.C. Sec. 1301(2) (emphasis added to new language).
The effect of this provision was recently the subject of an en banc
decision of my court (I was not a member of the en banc panel) in
United States v. Enas, 255 F.3d 662 (9th Cir. 2001) (en banc), cert.
denied, 122 S.Ct. 925 (2002). The question was whether, after the above
amendment was enacted, a non-member Indian could be tried both by a
tribal court and a Federal court for the same offense without violating
the double jeopardy clause of the Constitution. In the ordinary case,
there is no problem with such double prosecutions because each
sovereign, the tribe and the Federal Government, acts on its own
authority. United States v. Wheeler, 435 U.S. 313 (1978). The question
posed by Enas was whether the tribal authority recognized by the
statutory amendment of 25 U.S.C. Sec. 1301(2) was a form of inherent
tribal authority or was a grant of delegated Federal authority. If it
was delegated, then the tribe in prosecuting was exercising a form of
Federal authority and the Federal Government could not then conduct a
second prosecution. The en banc court in Enas unanimously held that the
tribe was exercising its own sovereign authority in prosecution Enas,
so the double jeopardy clause was not violated by a later Federal
prosecution. Six judges I ruled that Congress was correcting the
history discussed by the Supreme Court when it decided Duro.
Because this history was a matter of Federal commonlaw, not
constitutional law, Congress had the power to revise it. With the
history corrected, it was clear to the six-judge majority that the
tribal power was historical and inherent.
A five-judge concurring opinion took a more direct view stating
that when Congress authorized a tribe to prosecute, it was simply
enabling the tribe to exercise an independent sovereign power which did
not necessarily depend on history.
Under both views expressed in Enas, there is no question of
Congress' power to modify the boundaries of tribal power as? delineated
by the Supreme Court. Under the six-judge majority view, the
recognition by Congress of a new, non-historical tribal power would be
a Federal delegation of power, the exercise of which by the tribe would
be subject to the double jeopardy clause and many additional
constitutional restraints. By the five-judge concurring view, any
congressional recognition of governmental power by tribes would result
in the tribes' exercising their own sovereign power, subject of course
to the restraints of the Indian Civil Rights Act but not the Federal
Constitution. I must say that I am a partisan of the five-judge
concurring view. The most important point, however, is that the entire
en banc panel saw no difficulty in recognizing the effectiveness of the
congressional overruling of Duro; the only discussion was over the
collateral effects of such overruling.
In summary, the recent decades have seen a significant change in
the Supreme Court's view of the inherent power of Indian tribes. Many
decisions, culminating in last term's Atkinson and Hicks, have
substantially changed what has long been assumed to be the boundaries
of tribal and State power in Indian country. The new restrictions on
tribal power represent a judicial trend only; they have not been
paralleled by any changes in congressional or executive policies
concerning Indian affairs. None of the changes in the boundaries of
tribal and State power effected by Supreme Court decisions are based on
the Constitution; they accordingly are subject to modification at the
will of Congress in the exercise of its power over Indian affairs.
That concludes my testimony. Mr. Chairman and members of the
committee, I thank you for giving me this opportunity to express my
views to you.
______
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