As I walked into my publisher’s office for our weekly discussion on issues, political and otherwise, he threw out this opening gambit: “You must still feel guilt from having had Chief Allen call you a racist?
Dan was referring to my column/review of Louise Erdrich’s National Book Award winning novel, The Round House. A richly textured and finely written book, it is full of ambiguity. At one level it is an eloquent plea for tribal courts to have jurisdiction especially in capital cases over non-natives if they commit a major crime on native land.
“As usual, you’re wrong,” I shot back at my good friend who loves to twist one’s tail and succeeds because he outrageously exaggerates where one may be on an issue. “I took no position on the issue but rather pointed out what an important matter it is for tribes and how central it is to understanding the novel’s plot.”
“So, given your raising this controversial topic why not inform your readers why Congress and the Courts have come up with this concept of “quasi-sovereignty” for reservations? Check with some of your lawyer friends,” Dan suggested.
So I did, all of whom benignly indulge my “practicing law without a license.” Ever since learning of the 1902 Winter’s Doctrine, and laws in which Congress reserved rights to tribes, it has intrigued me why tribes have been reluctant to fully exploit the obvious power contained therein.
While Walter Echo-hawk’s book, In the Court of the Conquerors, outlined the ten worst rulings by the Supreme Court denying basic constitutional rights to Native Americans, he failed to point out that there are laws and court rulings, such as the Winter’s Doctrine, which give Native Americans first in time water rights on all bodies of water arising on
or passing through their reservations. Some tribes are starting quantify their claims while others prefer to let things simmer longer as water becomes ever more valuable.
When asked the question as to what they considered the key obstacle standing in the way of tribes attaining the right to enforce their laws on both natives and non-natives, all said the real issue is whether Tribal Courts are truly an independent branch of government.
One attorney said that in his state “and I suspect everywhere else the real issue is the lack of independence from the Tribal Council. Tribal Councils control Tribal Courts so instead of the rule of law you essentially have the rule of the council. If the council doesn’t like the result in a particular court case, the council overrules it or perhaps fires the judge.” (more…)