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 Volume 10, Fall 2002 |
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Protecting California CILS Partners on Tax Assistance Project Court Upholds CA Board Member Profile: Home Ownership: Indian Housing Law Practice at CILS CILS Fights to Preserve Indian Organizations Working for You: Indian Child and Family Services CILS Domestic Violence Initiative Tribal TANF Making Great Strides in CA |
CILS Participates in Efforts to Protect Tribal Sovereignty In its 2001 term, the Supreme Court issued two cases with potentially devastating impacts on tribal sovereignty, Atkinson Trading Company v. Shirley and Nevada v. Hicks. In the former case, the Court denied a tribe the ability to tax non-members on non-Indian fee land within a reservation. In the latter case, the Court rejected tribal court jurisdiction over a tribal member’s civil rights lawsuit against state officials for an incident that occurred in the tribal member’s home on tribal trust land. Together, these two cases indicate that the Supreme Court is ignoring centuries-old precedent that recognizes the inherent powers of Indian tribes to govern their people and lands, and instead choosing to continue further along its more recent path of whittling away at tribal sovereignty– limiting tribal governmental authority while expanding state jurisdiction within Indian country. CILS’ long-standing commitment to promoting tribal governmental authority has acquired new urgency in the wake of these Supreme Court decisions, and we are collaborating with other Indian advocates and organizations around the nation to develop effective strategies for protecting tribal sovereignty. NCAI’s Tribal Sovereignty Protection Initiative Recognizing the potentially disastrous impacts the Atkinson and Hicks cases could have in Indian Country, national Indian leaders and advocates from around the nation, including the National Congress of American Indians (NCAI), immediately began to organize and discuss legal and political strategies for protecting tribal sovereignty. Tribal leaders gathered in Washington, D.C. to discuss their options – unfortunately scheduling their initial meeting on September 11, 2001. Despite the horrible events of that day and the lingering effects in the following days, tribal leaders developed a six-part Tribal Sovereignty Protection Initiative (TSPI) plan that involved: (1) seeking Congressional legislation to reaffirm tribal sovereignty; (2) coordinating litigation before the Supreme Court in order to minimize the potential for further negative decisions; (3) involving tribes in the judicial nomination process; (4) strengthening tribal government infrastructures; (5) launching a public education and outreach campaign to teach the larger society about important tribal sovereignty issues; and (6) raising money to support the TSPI. Avoiding Further Adverse Court Decisions CILS has played an instrumental role in carrying out this multi-faceted pro-sovereignty plan. In April of 2002, CILS successfully pressed for increased national coordination on a potential Supreme Court case, preventing a potentially disastrous review of In re Santos Y., a California Appellate Court decision, by the Supreme Court . In 2001, the Santos court resurrected the “existing Indian family” exception: a court-created doctrine which limits application of the Indian Child Welfare Act (ICWA) to those cases involving Indian children who have “significant” political, social, or cultural ties to their tribe. This doctrine flies in the face of clear statutory language in ICWA: for ICWA to apply, it is only required that a child be either (1) a member of an Indian tribe, or (2) eligible for membership in the tribe and the biological child of a tribal member. In 1998, CILS and other Indian advocates in California successfully advocated for enactment of a California law that effectively overrode the existing Indian family exception by mandating ICWA application when the statutory definition of “Indian child” was met. Unfortunately, the Santos court found these 1998 statutes to be unconstitutional. Although CILS was not involved in the Santos case, we immediately responded in an effort to mitigate the effect of the Santos opinion, and to pro-actively address future attempts to limit the application of ICWA. Upon learning that the attorneys for the tribe involved in the Santos case were planning to seek Supreme Court review, CILS’ ICWA Practice Group strongly urged these attorneys to seek the advice of the newly-formed Supreme Court Project Working Group (SCPWG). In an effort to avoid more devastating decisions from the increasingly anti-Indian Supreme Court, tribal leaders and attorneys from across the country established the SCPWG to improve inter-tribal communication and litigation coordination, foster national discussions on cases that might be heard by the Supreme Court, and serve as a national advisory forum for tribes that had cases pending before the Court. Although the Santos opinion was undeniably unfortunate, CILS was quite concerned that the Supreme Court, continuing its trend of deciding cases against Indian rights, would seize the opportunity presented by the Santos case to declare ICWA unconstitutional and either invalidate ICWA entirely or make the “existing Indian family” doctrine applicable across the country. Even more worrisome, CILS feared that the Supreme Court might use the Santos case to overrule its decision in Morton v. Mancari, the most important Supreme Court case recognizing the constitutionality of Congressional laws that treat Indians differently. If the Supreme Court were to overrule Mancari, the constitutionality of many – if not all – Indian laws would be called into question. After CILS expressed these concerns to the tribal attorneys involved in Santos, the attorneys sought the advice of the SCPWG, thus initiating the Group’s first meeting and discussion, in which CILS and dozens of Indian law advocates and scholars shared their expertise and comments. This coordinated effort eventually avoided Supreme Court review of the Santos case. Undermining Tribal Jurisdiction CILS has also been involved in the TSPI’s efforts to develop federal legislation that would reaffirm tribal jurisdiction and address day-to-day tribal governance concerns raised by the Atkinson and Hicks decisions. Perhaps the most troubling aspect of these two decisions is the Supreme Court’s willingness to completely disregard tribal sovereignty, while increasing state jurisdiction in Indian Country. In Hicks, the Court practically ignored the distinction between Indian Country and the states, finding that “ordinarily,” Indian reservations are considered part of the state; state officials can enter reservations to enforce warrants related to off-reservation crimes; and tribal regulation of state officials while they are on reservations is not essential to tribal self-government. In Atkinson, the Court decided that the Navajo Nation did not have the authority to tax non-member guests of a hotel owned by non-members, but located within the Navajo reservation, even though the Navajo Nation provided police, fire, and emergency services to the hotel area, and – like any government – needed tax income to provide these essential services. The Atkinson decision raises immediate economic concerns for tribes, as it will likely render tribes unable to tax non-members who are within the reservation boundaries, even when tribes provide expensive governmental services to these non-members. Another practical concern involves the unanswered jurisdictional questions about which government exercises authority to regulate people and lands within Indian country, especially when Indian reservations contain a combination of tribal trust and non-Indian fee lands. In the Atkinson decision, the Court noted that although earlier cases had recognized tribes’ ability to tax non-members, the Atkinson case was different because the tax at issue was imposed on non-members while they were on non-Indian fee land. This tribal jurisdiction over non-Indian fee land was troubling to the Court. Within one month, however, the Court appeared to completely disregard the distinction between non-Indian fee land and tribally-owned trust land for purposes of tribal jurisdiction when, in the Hicks case, it found that the Fallon Tribal Court lacked jurisdiction to hear a tribal member’s trespass, abuse of process, and civil rights actions against Nevada game wardens whom he alleged had improperly searched his home and damaged his property, even though his home was located on tribally-owned lands. Whereas land status appeared to play an important role in the Atkinson case, in Hicks the same Court decided that tribal ownership of the land at issue was insufficient to support tribal jurisdiction. In the wake of these two opinions, jurisdictional issues become more complex and murky. This jurisdictional confusion may lead to inefficient or non-existent governmental services within Indian Country. In addition, outside developers and business enterprises may be reluctant to invest in tribal enterprises, if doing so raises unanswered questions about regulation, taxation, and the jurisdiction of courts. There is also a continuing lack of adequate criminal jurisdiction within Indian Country. Rates of violent crimes against Indian victims are twice as high as other national crime rates, and may continue to rise at an even greater rate as state and local governments continue to ignore Indian-victim crimes within Indian Country, and tribal criminal justice systems – already denied criminal jurisdiction over non-members – lose tax revenues needed to fund their own law enforcement services. Legislative Remedies At the request of Susan Masten, then-president of NCAI, CILS coordinated a meeting of California tribal leaders in November of 2001 to discuss legislative protections for tribal sovereignty, and we have continued our involvement with the TSPI legislative initiative since that time. In June of 2002, the TSPI Legislative Committee issued a concept paper on Tribal Governance and Economic Enhancement, which proposes a solution to problems posed for tribal governments by the incursions on sovereignty and the economic and practical effects of these decisions: pursue the passage of legislation that squarely recognizes Indian tribal governments as the primary sovereigns over all peoples and lands in Indian Country, with broad civil and criminal jurisdiction. The concept paper calls for federal legislation that affirms the inherent sovereign authority of tribes within Indian Country; provides for federal judicial review of tribal court decisions; gives tribes the right to opt in or out of the final legislation; grants tribes the option of opting out of Public Law 280; establishes a tribal government enhancement fund; compensates states for services provided to Indian reservations; and encourages negotiated inter-governmental agreements between tribal, state, local, and federal governments. CILS has been closely following the proposed TSPI process and reviewing the concept papers to ensure that California tribal concerns are addressed in any final legislative proposals. Mary Risling, Directing Attorney of the Eureka office, attended a July 2002 TSPI meeting in Portland, Oregon, at which she addressed some issues of practical and theoretical concern to California tribes. The next opportunity to engage in a nationwide discussion of the TSPI proposal will be at NCAI’s 59th Annual Session in San Diego, which will be held November 10-15, 2002. In the meantime, CILS encourages any tribes who are interested in learning more about the TSPI process, or organizing a California meeting, to contact their local CILS office. Even though California tribes may be experiencing political successes at the state and federal legislative and executive levels, their sovereignty is under attack by the United States Supreme Court. CILS will continue to actively monitor and participate in efforts to protect tribal sovereignty and Indian rights, and encourages California tribes to directly participate in such efforts in order to ensure meaningful consideration of the specific needs and special interests of California tribes . More information about the TSPI can be found on NCAI’s website at http://www.ncai.org. |
