Tribal Justice in California

Winter 2003/2004

These articles originally appeared in the Groundhog Day column in News From Native California, Volume 17, Number 2.

California tribes have long struggled to exercise their rights and authority as sovereign nations -- and to overcome social, political, and economic barriers that undercut their ability to effectively protect the safety, health, and welfare of their communities. Today, California tribes are making important advances towards establishing comprehensive tribal justice systems that afford their members and communities access to fairness and justice. The growth and development of tribal justice systems throughout the California Indian community is only one example of the commitment and perseverance of California tribes, but it is a particularly significant one given the historical challenges to creating tribal justice systems here. 

Tribal Systems

While tribes can and do exercise their authority and jurisdiction through many different mechanisms, law enforcement and dispute resolution systems (such as tribal courts) for both civil and criminal matters are becoming more common in California. Today, tribal law enforcement systems throughout California take many forms: tribal police forces, fire code enforcement officers, environmental code enforcement officers, employee and patron grievance bodies, tribal TANF hearing officers, and other enforcement officials. Examples of tribal justice systems include: tribal courts such as the Cabazon Tribal Court and the Hoopa Tribal Court, among others; Indian dispute resolution and mediation services such as Indian Dispute Resolution Services; and regional court systems such as the Intertribal Court of California, which is housed under the Regional Tribal Justice Center serving tribes in Lake, Mendocino, and Sonoma Counties; other regional court systems are under development. 

Tribal Jurisdiction in California 

The development of tribal justice systems in California was slowed by a misunderstanding of tribal and state jurisdiction under Public Law 83-280 (P.L. 280). Under P.L. 280, the state governments of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin have concurrent criminal jurisdiction and limited civil jurisdiction within the exterior boundaries of Indian reservations. In the not-too-distant past, the BIA erroneously claimed that the passage of P.L. 280 in 1953 ended tribal criminal and civil jurisdiction on Indian reservations. As a result, they did not support the development of tribal justice systems in California. In important cases won by California Indian Legal Services (CILS) and opinions issued by the U.S. Department of Justice in the past few years, it has been affirmed that although states acquired some civil jurisdiction, tribes retain virtually all of their civil jurisdiction and that they have concurrent jurisdiction over certain crimes. Because the U.S. Supreme Court continues to examine and reshape - and, sometimes, limit -- tribal jurisdiction (in recent cases such as Nevada v. Hicks, Atkinson Trading Company v. Shirley and Bishop Paiute Tribe v. Inyo County), Congress should affirm the jurisdiction of tribal governments over their lands and the people and activities within them. 

Tribal Justice Systems Provide Certainty and Security 

Justice systems provide a community, and other people and institutions who interact with that community, with assurance that there is a forum for the fair hearing of any disputes that arise. As efforts to promote community and economic development on Indian reservations have blossomed, non-Indian people and institutions have become more knowledgeable about Indian Law and the sovereign immunity of Indian tribes. Often, as a condition of engaging in joint ventures with tribes, they seek broad waivers of tribal sovereign immunity-especially where there are no tribal dispute resolution systems in place. In order to facilitate community and economic development, tribes often execute limited waivers of tribal sovereign immunity that grant individuals and institutions the right to sue in tribal court. This development mirrors the historical evolution of both state and federal courts and governments: once court systems were developed, state and federal governments removed some of the limitations on citizens' right to seek redress against those governments in their court systems. 

Tribal Justice Systems Addressing Community Needs 

The development of tribal justice systems is not an all-or-nothing proposition. Many tribes and tribal consortia have identified their communities' most pressing tribal justice needs and have located resources available from both government and private organizations. Organizations involved in a specific issue may make funds available for the development of courts with limited subject matter jurisdiction: an organization promoting child welfare might fund a tribal court to hear Indian Child Welfare Act cases transferred out of state courts, or an organization prioritizing environmental protection might fund a system to enforce tribal environmental codes. Tribes may - and do -- establish traditional and alternative dispute resolution mechanisms to suit the specific needs and practices of their communities. Each of California's more than 100 Indian nations are evolving some form of dispute resolution that demonstrates their creative response to community needs and their sense of justice. 

Model Tribal Housing Court Project 

An example of how the development of tribal justice systems provides certainty and security while at the same time addressing community needs is well illustrated by the Model Tribal Housing Court Project. With the financial support of Fannie Mae, a consortium of tribes in the Eastern Sierras is working with CILS to develop model Indian housing codes and establish a tribal court to hear housing issues. As a result of this project, tribes and tribal members should gain greater access to conventional mortgages, favorable interest rates, and loan packages for new homes or home renovations where trust lands are involved. CILS and Fannie Mae hope that the project will serve as a model that can be replicated to increase opportunities for lending on other California Indian reservations. This is but one example of the many creative ways that California tribes with limited resources are collaborating with public and private sector partners to develop tribal justice infrastructure. 

Training and Technical Assistance for California Tribes 

Many tribes have received planning and implementation grants from the U.S. Department of Justice through the Bureau of Justice Assistance (BJA) and get training and technical assistance in conjunction with these grants. In the past, much of the training and technical assistance has been provided by organizations from outside of California - but these organizations often are not familiar with California tribes and do not have a history of working with California tribes. Within California, support for the development of tribal justice systems comes from a range of organizations, including CILS, the National Indian Justice Center, the Regional Tribal Justice Center, the Tribal Law & Policy Institute (TLPI), the Southern California Tribal Chairmen's Association, and the Native Nations Law & Policy Center of the UCLA School of Law. In order to provide effective training and technical assistance from within the state, organizations such as TLPI, the Native Nations Law & Policy Center, and CILS are now pooling their collective resources, experience, and knowledge. More funding continues to be available through the BJA grants and tribes should take advantage of such funding since nearly every tribe that applied for fiscal year 2003 funding received a grant. 

The Road to Retrocession 

The development of tribal justice systems is a critical step in the journey that many California tribes are now beginning towards complete retrocession: when they and the state will be ready for the tribe to exercise exclusive jurisdiction over all matters arising within their jurisdictional territories. Some tribes may decide that the benefits of pooling their resources and efforts will better serve their communities, and elect to continue concurrent jurisdiction with county and local governments, developing cooperative and collaborative partnerships and entering into inter-governmental agreements. California tribes continue to overcome significant barriers and challenges in order to better serve their Indian communities and the communities that surround them. The federal and state governments must continue to recognize these efforts and work cooperatively with the tribes. In doing so, they too will realize the strengths and benefits of tribal sovereignty.

A note on the authors 

This article was jointly authored by CILS staff: Michael Pfeffer, Executive Director of CILS, started working at CILS in 1978. Over the years, he has had direct involvement in virtually every aspect of California Indian policy and law. Lisa Oshiro, a kanaka maoli (Native Hawaiian) from the island of O'ahu, is Directing Attorney of the Washington, D.C. office. She specializes in federal governmental relations matters. Kate Griffin, CILS' Publication Director, has worked at CILS for three years. She has a Ph.D. in American Studies, specializing in American Indian literature.

Middletown Rancheria Scores A Victory For Native American Cultural Rights

In a precedent-setting case, Middletown Rancheria settled a lawsuit this June against Snows Lake Vineyard and Lake County over the destruction of tribal burial sites and sensitive environmental areas. Represented by California Indian Legal Services (CILS), the Tribe filed the suit in the summer of 2002 under the California Environmental Quality Act (CEQA) and the Unfair Business Practices Act. The first of its kind settlement provides for an on-going tribal role in land management at the vineyard property, as well as permanent gathering rights for traditional tribal basket weavers.

Destruction of Resources 

Snows Lake Vineyard received a permit from Lake County in 1998 to grade 650 acres of land. In 2001, reports surfaced that the vineyard had actually cleared up to 200 additional acres of land -- including areas never previously used for agriculture. The overgrading and destruction of resources stirred up controversy in the county. In June 2001, amid growing protests from landowners and citizens' groups, the county ordered the vineyard to stop work and submit an application for a new grading permit. But the county later allowed the vineyard to resume grading operations without any environmental review and refused to conduct a review.

Before the lawsuit was filed, the Tribe's environmental director raised the Tribe's concerns with both the vineyard and the county, and expressed dissatisfaction over the destruction of archaeological sites known to have been hunting camps and believed to contain ancestral burial sites. A joint task force appointed to look into the grading violations had not reported back, and the legal deadline for filing an environmental lawsuit was about to expire.

Tribe Files Suit 

CILS Senior Attorney Jim Cohen, together with CILS Board Member and environmental law specialist Joseph Brecher, filed the lawsuit in July, 2002. The suit alleged the destruction of numerous significant natural and cultural resources, including recorded tribal archaeological sites, vernal pools and streams, and native oaks and other vegetation, as well as problems of pesticide drift, noise and air pollution, and conversion of virgin soil to agricultural use without the required review process.

When the suit was filed, Mr. Cohen charged, "Lake County has been allowing gross environmental destruction in the name of economic development at the expense of the tribe and the public for too long. With the county refusing to enforce environmental protection laws, there is no choice but for the tribe to initiate action to make sure the earth, water and air are protected."

CEQA, California's environmental law, is often used to delay projects may have a harmful impact on the environment. Invoking CEQA alone would probably result only in another review of the grading by the county. Given the county's lack of action over the previous year, this did not promise much in the way of relief for the Tribe. So the lawyers relied on the Unfair Business Practices Act -- also known as Section 17200 -- to provide additional legal strength for their arguments.

Section 17200 allows courts to fashion creative remedies, or to adopt creative remedies proposed by plaintiffs. In this case, the parties did not go to trial or even engage in traditional legal discovery - depositions, written interrogatories, and the like. Section 17200 has been the center of much attention and controversy in the past year, as business interests throughout California have attempted to gut or repeal the law in the State Capitol. The law essentially allows any person or organization to sue a business entity for any illegal actions it has taken in the course of its business activities. Well-publicized misuse of the law by a minority of Southern California plaintiffs' lawyers has added momentum to the campaign against this law. However, the Middletown Rancheria case demonstrates that the law has tremendous power and value when used in an ethical and at the same time aggressive manner, providing monetary and other forms of damages where other laws have less power. While settlement negotiations took nearly a year, in the Middletown case, the very threat of a trial under Section 17200 seems to have prompted unprecedented cooperation on the part of the landowner.

Settlement Protects Native American Sites 

Under the settlement's terms, before they can convert any additional acreage to grape cultivation, Snows Lake Vineyard must preserve remaining known Native American archaeological sites and have professional archaeological surveys conducted to locate undiscovered sites for preservation. Tribal monitors, paid by the vineyard, will be invited to observe all future ground-disturbing activities and ensure that no other archaeological sites are disturbed by the agricultural work.

Simultaneously with the tribe's settlement, Snows Lake Vineyard announced a settlement with state and local government agencies on issues related to the environmental damage. Many of the remedies sought by these agencies dovetail with goals that the tribe obtained in its settlement. For example, the agencies demanded the restoration of 2.2 acres of vernal pools - seasonal swampland where protected plant and animal species thrive - that were destroyed in the original grading. The agencies demanded the right to observe the restoration for five years in order to make sure that native species are introduced and protected, and to make sure that the vineyard follows acceptable land management policies to maximize the chances of success.

On top of what the agencies got, Middletown Rancheria provided a list of priority native plant species which SLV has committed to introducing in the restored area. In addition, the tribe will have the right to observe the restoration for eight years - three more than the state agencies - to ensure the plants' success and to teach traditional California Indian land management techniques to the vineyard operators.

Rights for Traditional Basket Weavers 

But perhaps the most significant and unprecedented achievement of the lawsuit is that the vineyard owners have agreed to set aside a never-planted area of their land where tribal members will be able to gather native plant species used in traditional Pomo Indian basketry. Tribal environmental director Chris Casey said, "This settlement will guarantee tribal basket weavers access to raw materials that have not been tainted by chemicals. It's a great gain for tribal culture because there aren't many places left where these plants can be gathered safely and legally." Attorney Jim Cohen added, "Snows Lake Vineyard is the first land owner we know of to grant ongoing access for basketry material gathering. It will be a huge help in revitalizing a nearly lost tribal art, and we hope other growers will follow their example."

During settlement negotiations, Tribal experts visited the vineyard site on several occasions and selected an area where herbicides and pesticides have never been applied, where sedge and other native basketry species are thriving, and which are easy to access - an important consideration for basket weavers, many of whom are elderly and would not be able to hike on rugged terrain to reach the plant species.

Protection of the gathering area from chemical overspray was another major consideration, since in traditional Pomo basketry, the gatherers split the plant roots in their mouths. Contaminated plant areas would pose an enormous health risk. Middletown Rancheria has an active basketry program, and is working to interest more tribal members in learning the ancient art, which had nearly died out during the Termination Era.

Additional Protection for Cultural Resources 

The settlement agreement also calls for return to the Tribe of any Native American artifacts or remains found on the property, permits the Tribe to conduct traditional ceremonies at the archaeological sites, and commits the vineyard operators to cooperating in proposed tribal studies on the effects of herbicides and pesticides used in grape growing. Tribal Chairman Jose Simon, III, agreed, "We look forward to working together to implement the progressive measures of the agreement and to sharing tribal land stewardship principles with them." Middletown Rancheria's settlement is an important victory in the on-going struggle to protect California Indian cultural and environmental resources.

About News From Native California

News from Native California is a quarterly magazine devoted to California Indian culture. They have been publishing for fifteen years and currently have a circulation of about 5,000 copies per issue. With its calendar of events, news roundup, feature articles, and regular columns on art, language, traditional skills, grants, and legal concerns, News has kept people informed and at times even inspired. They also sponsor performances, workshops, and other events, as well as several benefits for the Indian community each year, and serve informally as a center for information and connection. To get more information, request a free sample copy of the magazine, or subscribe, please call our offices at (510) 549-2802, email margaret@heydaybooks.com, or visit their website at  http://www.heydaybooks.com/news (opens new window).

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