"I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." - Thomas Jefferson (appears in the Jefferson Memorial)

Native jurisdiction (con’t)

Chris Carlson
Carlson Chronicles

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.”

Another attorney said the lack of an independent judiciary is “the” reason why reservations remain so poor with no investment coming from the outside world. “Without an independent judiciary an investor simply cannot protect his investment – so, he doesn’t invest,” the attorney said.

It is for this reason alone these attorneys think it is highly unlikely that Congress or the Supreme Court will ever grant full sovereignty to tribes to the extent of permitting the prosecution and trial of non-natives. I believe they are correct.

We all subscribe to the notion that no one wants to be judged by the whim of any political body. We all want to be judged, and should be judged, in a court of law following the rule of law.

Tribes are aware of the real issue, but tribal councils simply refuse in most instances to fix it. No tribal council wants to give up any power, so tribal governments will never be fully sovereign despite their rhetoric to the contrary, and the tribal membership they represent will pay the price of no outside investment other than that related to a gaming operation.

It is for these reasons some believe tribes would be better off if Congress nullified all treaties and replaced them with the successful economic model of a regional native corporation which has to operate transparently under the rule of law including corporate law.

This is what Congress in fact did when it addressed the land claims of Alaskan Natives in the 1970’s. It created a number of Native Regional corporations, granted them tracts of the federal domain they could claim, just as it did for the state, preserved their rights to subsistence hunting even in the new National Parks that would be created, and provided other aid for business development.

Critics of course claim this is the rebirth of the Eisenhower-era effort to extinguish any and all special rights for Native Americans covered by treaties. It’s not. The discussion, however, of full sovereign rights will never take place without first addressing the key underlying necessity of a truly independent tribal judiciary.

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