NNI Executive Education for Tribal Leaders “The Legal Framework for Native Nation Building”

NNI Executive Education for Tribal Leaders “The Legal Framework for Native Nation Building”

Robert A. Williams, Jr.

E. Thomas Sullivan Professor of Law and Faculty Co-Chair Indigenous Peoples Law and Policy Program The University of Arizona Rogers College of Law Co-author: Getches, Wilkinson and Williams: Federal Indian Law: Cases and Materials (West, 6th ed. 2011)

The History of Federal Indian Law and Policy:Characteristics and Challenges

• Pre-Constitutional Era (1532-1789) Doctrine of Discovery/King’s Proclamation of 1763/Colonial treaty-making

• The Formative Years (1789-1871) Indian Commerce Clause/Non-Intercourse Act and Treaty-making/ Marshall Trilogy and

Removal/Beginnings of Reservation System/End of Treaty-Making

• Allotments and Assimilation (1871-1928)Dawes Act/Kagama and Lone Wolf /Courts of Indian Offenses/Boarding Schools

• Indian Reorganization (1928-1942)Merriam Report/Indian New Deal and the IRA/John Collier and Felix Cohen

• Termination (1943-1961)Ira Hayes and Civil Rights Movement/House Resolution 108 and Public Law 280/NCAI and Pan-Indian Movement /Indian Claims Commission/Tee-Hit-Ton

• The “Self-Determination” Era (1961-present)1968 ICRA/Nixon’s “638” Self-Determination legislation/1978 ICWA & AIRFA/1988 IGRA/1990 NAGPRA/ Landmark Indian rights cases—Mancari, “Boldt,” Martinez

“The Nation Building Era” (circa 1990-present)

Characteristics and Challenges

• Limits on Indian Self-Determination defined by Congress and courts, not tribes, e.g., IGRA, San Manuel v. NLRB

• Hostile Supreme Court, e.g. Nevada v. Hicks, Rice v. Cayetano, Sherrill

• Anti-Indian groups, anti-affirmative action mood, heightened news media scrutiny (Wall Street Journal/D.C. corruption scandals)

• Shrinking federal budgets, rising health costs, no-child left-behind, rising crime, unemployed youth, poor infrastructure

• Tribal enterprises are competing in a national/globalized hyper-competitive economic environment (no special “bennies”/immunities just because you are a tribal business)

1. Practical self-rule

2. Effective governing institutions

3. Cultural match

4. Strategic orientation

5. Leadership

6. Legal framework for Native Nation Building

The Nation Building Approach to Sustainable Development

The Legal Framework for Native Nation Building

Sources of Tribal Powers and Rights

• The Tribal Sovereignty Doctrine

• Tribal Constitutions and Tribal Law

• Treaties and Statutes (federal)

• Compacts, Agreements, MOU’s, etc. with other Native Nations, non-tribal governments (federal, state and subdivisions), and other legal entities (corporations, foundations, etc)

• International Human Rights Law (UN and OAS human rights system)


Sources of Limitations on Tribal Powers

• Congressional Plenary Power and the Trust Doctrine

• The Supreme Court’s “Implicit Divestiture” Doctrine

• Tribal custom and tradition• International Human Rights Law• Assertions of States’ Rights in Indian Country


Putting Tribal Sovereignty to Work• Tribal courts and dispute resolution systems• “Modern” tribal constitution• Updated election codes/staggered terms for elective offices• Revised citizenship and membership codes• Law enforcement and criminal procedure codes • Separation of politics from business management• Business codes/limited liability companies, limited waivers of

sovereign immunity/secured transactions codes • Administrative Procedure Act• Intergovernmental agreements

Key Assets for Native Nation Building:

Tribal Courts and Dispute Resolution Systems

1. Practical Self Rule

• “Modern” Constitution

• Tribal Law (customary, statutory, codes, reg’s, foreign)

• Independent judiciary interpreting and enforcing the Constitution and Tribal Law

AN EFFECTIVE TRIBAL COURT:

• maintains stability and law and order

• enforces separation of powers in the tribe, including separation of government and business functions of tribe

• provides transparent resolution of disputes through a strong, fair and independent judiciary

• gives the tribe ability to make binding decisions in a timely fashion

• a self-governance structure that gets things done for the tribe

2. Effective Governing Institutions


• Tribal courts must have legitimacy with the people to be effective.

• Effective tribal courts match indigenous ideas about how authority should be organized and exercised.

• Self-governance institutions that match contemporary indigenous cultures are more successful than those that don’t. (duh!)


3. Cultural Match

Na-Dene Language Map

Dine Bi Beehaz’aanii Navajo Nation Common Law

• dine’e –Navajo/people

• ke’e – kinship

• ak’ei – grandparents

• adoone’e – clan

• hozho – harmony

• naat’aanii – leader/peacemaker

• hozhooji naat’aanii – peacemaking

• nalyeeh – restitution/restoration/make whole

• hozhoojigo – “talking things out” in order to

return to a state of harmony

Dinetah – Navajo Nation

• Proactive thinking (not just responding to crisis but trying to gain some control over the future – the role of precedent and tribal common law and how practices can “crystallize” into rights )

• Long-term, systemic thinking (seven generations from now, what kind of society do you want? – the role of tribal courts in your vision of the society you’re trying to build )

• Broader focus on the community (fixing not just problems but societies according to Native knowledge, custom, tradition and law)

4. Strategic Orientation


“Individuals or groups who are willing to break with standard ways of doing things, who can articulate a new vision of the nation’s future, and who understand and can promote the foundational changes such visions require.”

5. Leadership


The Leadership Challenge: Why Don’t We Ever Waive Our Sovereign

Immunity in Our Own Tribal Courts

“The King Can Do No Wrong”

King James I (1566-1625)

KIOWA TRIBE OF OKLAHOMA v. MANUFACTURING TECHNOLOGIES, INC. (1998)

“There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.

“These considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule. Respondent does not ask us to repudiate the principle outright, but suggests instead that we confine it to reservations or to noncommercial activities. We decline to draw this distinction in this case, as we defer to the role Congress may wish to exercise in this important judgment.”

Thinking about Tribal Sovereign Immunity

“Sovereign immunity is the power of a government to define the forum, procedure and limits respecting suits against itself.”

MANY TRIBES HAVE, TO VARYING DEGREES, HAVE WAIVED IMMUNITY FROM SUIT ON CIVIL RIGHTS CLAIMS

COLVILLE TRIBAL LAW & ORDER CODE § 1-5-8 (providing that to the extent that a claim in tribal court under tribal civil rights provisions is covered by the tribe's liability insurance, "suit may be brought for damages up to the full available amount of the coverage provided in the insurance policy")

1 MASHANTUCKET PEQUOT TRIBAL LAWS tit. 1, ch. 3, § 11 (waiving sovereign immunity with respect to claims asserting ICRA violations by tribal police on tribal lands, but capping damages at $500,000 per incident, barring punitive damages, and limiting pain and suffering damages to 50 percent of economic damages)

TRIBAL SOVEREIGN IMMUNITY AND INDIVIDUAL RIGHTS• Tribal courts have held that the Indian Civil Rights Act creates a

cause of action in tribal court.

Palencia v. Pojoaque Gaming, Inc., (Pueblo of Pojoaque Tribal Ct. 2001)

• Many tribal statutory or constitutional provisions have incorporated the ICRA provisions.

CONST. AND BY-LAWS OF THE CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON, art. III, § 3(k) ("The Tribe shall provide to all persons within its jurisdiction the rights guaranteed by the Indian Civil Rights Act of 1968.")

• Other tribes have created a cause of action for ICRA violations or provided “bill of rights” type protections similar to the ICRA in their constitutions or statutory law.

• Many tribes have authorized suit against tribal officials for declaratory and injunctive relief with respect to claims under civil rights laws or the tribal constitution.

• CONST. OF THE HO-CHUNK NATION, art. XII, § 2. ("Officials and employees of the Ho-Chunk Nation who act beyond the scope of their duties or authority shall be subject to suit in equity only for declaratory and non-monetary injunctive relief in Tribal Court ... for purposes of enforcing ... this constitution or other applicable laws.")

• Some tribal courts enforce injunctive relief by means of monetary contempt sanctions against tribal governmental defendants. A plaintiff might also sue a tribal official for damages in his or her individual capacity.

Smith v. Beard (Ho-Chunk Nation Trial Ct. 2000) (awarding the plaintiff some $16,000, and explaining that the court's order to place plaintiff on administrative leave with pay was an "ongoing contempt sanction to the Nation for not obeying the order to reinstate" the plaintiff) (Ho-Chunk Nation Supreme Ct. 2001)

Tribal approaches to tort, employment-related and contract claims

• Many tribes obtain liability insurance, with the result that a plaintiff may recover damages up to the amount of the liability coverage.

1 MASHANTUCKET PEQUOT TRIBAL LAWS tit. 4, ch. 1, §§ 4, 5, 9 (waiving tribal gaming enterprise's immunity from suit, up to the limits of the applicable liability insurance)

• A number of tribes have established administrative processes for the resolution of employment-related claims. Judicial review of administrative determinations of such claims is often available. Relief may include reinstatement and, sometimes, the award of back pay. Contract claims against tribes may be subject to varying modes of dispute resolution.

• A tribe may waive its immunity by contract, and may permit suit in

tribal or non-tribal courts. The Mashantucket Pequot Tribe, for example, has waived its immunity from suit in tribal court on all claims concerning contracts duly executed by the Tribe, unless the contract expressly states otherwise.

1. Practical self-rule

2. Effective governing institutions

3. Cultural match

4. Strategic orientation

5. Leadership

6. Legal framework for Native Nation Building

The Nation Building Approach to Sustainable Development