July 8th, 2020
Tribal sovereignty means the rights of self-rule of the Native American tribes, which, according to Justice Marshall, are “domestic dependent nations” (Fletch 650). Despite the ratification of the Indian Reorganization Act and Indian Civil Rights Act, the U.S. federal government and the Supreme Court have been diminishing the historically inherent sovereign authority exercised by the Native American tribes (“Indian Reorganization Act.”) (“Indian Civil Rights Act.”) through the unrecognition of tribal jurisdiction over non-Indian petitioners that causes the formation of a jurisdictional void.
Historically, Indian tribes have had judicial power over all cases rise within their territories. However, since the Supreme Court ruled the first case over non-Indians in 1881, tribal sovereignty has been increasingly threatened by the Court’s opinions that were dominated by overriding national interests. According to Alexander Tallchief Skibine, a professor of law at the S.J. Quinney College of Law, the Supreme Court implicitly stated in 1978 that due to the positions of domestic dependent nations, the tribes hold no inherent powers to “civilly regulate” nor criminally prosecute non-members within Indian reservations with two exceptions: 1. Non-Indians were “in consensual relations with the tribal members or tribe itself” (1011). 2. The Non-Indians directly threats the “health and welfare of the tribe, its economic security, or its political integrity” (1011). However, these two exceptions that are established to ensure tribal powers have been gradually invalidated. In a paper researching legal and economic impacts of Indian self-rule, Joseph P. Kalt and Joseph William Singer point out that the Supreme Court ruled in 1990 that the tribes are not justified to impose zoning laws on no-Indian owners of land within the reservation (17). This court opinion directly bereaved the tribes’ authority to protect their economic interests and impacted later cases. In 1990, the Court asserted that tribes cannot apply their tort law on non-Indian car accidents that occur within the reservations, even though the tribe should protect its members who drive on the reservation by regulating the driveways (Kalt & Singer 17). This ruling impinged the social interests and security of the Indians. Furthermore, the Supreme Court ruled in 2001 that tribes cannot impose taxes on non-Indian owners of fee lands because the non-Indians’ status as “Indian trader[s]” licensed by the Indian Affairs Commissioner was insufficient to support the tax’s imposition (17). Thus, the first exception did not apply even the tribe has “[provided] significant services to the [petitioner]” (17). The Court further reasoned that the second exception was inapplicable because the “acreage of non-Indian fee land is minuscule in relation to the surrounding tribal land” (Atkinson Trading Co. v. Shirley, 2001). As thus, Native American tribes’ jurisdiction is diminished over non-Indians.
In response to the unfair rulings, Congress has made progress on reserving the powers of self-government of the Native tribes. However, without interpreting that tribal sovereignty gives Indian tribes complete authority over people and objects within their territory, most rulings have been and are going to maintain the current trend. In 1990, the Federal District Court granted the petitioner Duro’s writ in Duro v. Reina by stating that tribal jurisdiction of non-Indians “constitute discrimination based on race in violation of the equal protection guarantees of the Indian Civil Rights Act of 1968” (Duro v. Reina, 1990). In this case, the jurisdictional void was created. Duro, an enrolled member of a tribe murdered a member of a different tribe, was considered an Indian by the federal justice system. Consequently, the case applied to the Indian-against-Indian exception that eliminated federal courts’ jurisdiction over this case (Duro v. Reina, 1990). Meanwhile, the tribe that was left with the crime subject lacked the sovereign to impose a sentence. Thus, it was difficult to reach a judgment, which eventually resulted in Duro’s exemption. Although the case was reversed by Congress later, the Court concluded that the tribes were “implicitly divested” of exercising criminal jurisdiction over a nonmember in 1924 when Indians were granted U.S. citizenship and tribes signed the treaties because of their domestic dependent status (Duro v. Reina, 1990). According to Kathryn E. Fort, the Director of the Indian Law Clinic at the Michigan State University College of Law, the Court always rules “using radically charged decisions and statues for precedent” (306). This approach combined with the interpretation of tribes’ jurisdictions over non-members has compelled later cases to result in the disadvantage of Indian tribes. For instance, in 2008, the Court ruled that the tribe lacks the sovereign to regulate the non-Indian Petitioner’s sale of its fee land” (Plains Commerce Bank v. Long Family Land & Cattle Co., 2008). Moreover, when the tribes are eliminated of the power to try non-Indians, according to Duane Champagne, a Professor Emeritus of Sociology and American Indian Studies at UCLA and Professor of Law Emeritus at UCLA School of Law, their tribal members are liable in U.S. courts and to U.S. laws of crimes committed outside of reservations and have to be tried in U.S. courts (Champagne). This double standard conspicuously demonstrates the state’s discrimination, which is causing a jurisdictional void, which has been harming the Indian tribes, among non-Indians.
The jurisdictional void caused by continuous oblivion of the problem is severely undermining American Indians’ health, welfare, and economic security. For instance, since 2011, North Dakota has been having an influx of non-Indian oil workers rushing onto the reservations and exacerbated the problem. The lack of tribal jurisdiction in this situation was described by some tribal officers as encouraging “lawlessness”, which is corroborated by their anecdotes of being told by non-Indians that they have no authority to do anything to them under the current justice system (Crane-Murdoch). On the contrary, with efficient tribal authority, amelioration has been made. Joseph P. Kalt, a Ford Foundation Professor of International Political Economy, and Joseph William Singer, a Bussey Professor of Law, argue that through “tribal assumption of policing and law enforcement activities under contracting and compacting with the federal government” by “shifting the locus of control from Washington, D.C. to the local tribal headquarters ” has improved “objective performance of policing on reservations and the subjective attitudes of reservation citizens toward police activities” (31). They corroborate their claim using the Gila River Indian Community, which “has sharply … decreased crime (while the rates for similar crimes have risen in neighboring Phoenix”, where has performed no tribal assumption of enforcement) (Kalt & Singer 31).
According to Goldberg Carole E., who was appointed by Barack Obama to the Indian Law and Order Commission to investigate issues of safety and justice in tribal communities, one possible solution to ensure tribal jurisdiction over non-Indians is to limit state jurisdiction (118). Nevertheless, it would take “a long process and, under current law, completely dependent on state consent” (Goldberg-Ambrose 1138). So even if the tribes speak up to the state, the federal government is unlikely to consent because they are “insensitive to tribal concerns and eager for any excuse to expand its authority at the tribe’s expense” (1138). A more feasible alternative solution is to interpret tribal jurisdiction in the context of complete sovereignty, which means “supreme authority within a territory” according to Stanford Encyclopedia of Philosophy (Philpott). The effect of this resolution has shown in Washington v. Cougar Den, which was largely impacted by Justice Gorsuch’s different interpretation of tribal sovereignty (Vock). According to Daniel C. Vock, a reporter for the Chicago Daily Law Bulletin, instead of seeing the Indian tribes as lacking jurisprudence, Justice Gorsuch decided that state’s fuel taxes violated the 1855 treaty that “guarantees the right to travel freely on public freeways” and was an act of insatiability of the state on its pre-made promises of tribal sovereignty (Vock). This ruling of admitting Indian tribes’ authority actuates later rulings to consider the undeprivable jurisdiction that the tribes have with granted sovereignty. However, one Supreme Court judge has limited influence: while Justice Gorsuch was assuring tribal jurisdiction, Chief Justice John Roberts has “ruled against tribes in disputes over treaties and land claims” and discouraged tribes to appeal to the higher court in fear of getting adverse rulings (Vock). Nevertheless, the impact of righteous interpretation has shown; thus, redefining tribal sovereignty is a protentional solution that is worth a try.
Champagne, Duane. “Non-Indians and Tribal Criminal Jurisdiction.” IndianCountryToday, 23 Dec. 2012, newsmaven.io/indiancountrytoday/archive/non-indians-and-tribal-criminal-jurisdiction-psdSZ3LqSkqFaiugTponyg/.
Crane-Murdoch, Sierra. “On Indian Land, Criminals Can Get Away with Almost Anything.” The Atlantic, 22 Feb. 2013, www.theatlantic.com/national/archive/2013/02/on-indian-land-criminals-can-get-away-with-almost-anything/273391/.
Fletcher, Matthew L.M. “The Iron Cold of the Marshall Trilogy.” SSRN,vol. 82, no. 627, 25 Aug. 2016, pp. 650. Michigan State University Legal Studies, ssrn.com/abstract=924547.
Fort, Kathryn E. “The Vanishing Indian Returns; Tribes, Popular Organism, and the Supreme Court.” SSRN, vol. 47, no. 297, 2013, pp. 300-310. St. Louis University Law Journal, ssrn.com/abstract=1752430.
Goldberg-Ambrose, Carole. “Of Native Americans and Tribal Members: The Impact of Law on Indian Group Life.” JSTOR, vol. 28, no. 5, 1994, pp. 1123–1148. Law & Society Review, doi:10.2307/3054025.
“Indian Civil Rights Act.” Tribal Court Clearinghouse, www.tribal-institute.org/lists/icra.htm.
“Indian Reorganization Act.” Encyclopedia Britannica, 10 Oct. 2016, www.britannica.com/topic/Indian-Reorganization-Act.
Kalt, Joseph P. and Singer, Joseph W. “Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule” SSRN, No. RWP04-16, 18 Mar. 2004, pp. 16-31. KSG Working Paper, ssrn.com/abstract=529084.
Philpott, Daniel, “Sovereignty”, The Stanford Encyclopedia of Philosophy, Edward N. Zalt ed., 25 Mar. 2016, Metaphysics Research Lab, Stanford University, plato.stanford.edu/archives/sum2016/entries/sovereignty/.
Tallchief Skibine, Alexander. “Tribal Sovereign Beyond the Reservation Borders.” SSRN, vol. 12, no. 4, 13 Jul. 2010, pp. 1010-1013. Lewis & Clark Law Review, ssrn.com/abstract=529084.
Atkinson Trading Co. v. Shirley. 532 U.S. 645. Supreme Court of the United States. 2001. Justia Law, supreme.justia.com/cases/federal/us/532/645/.
Duro v. Reina. 495 U.S. 676. Supreme Court of the United States. 1990. Justia Law, https://supreme.justia.com/cases/federal/us/495/676/.
Plains Commerce Bank v. Long Family Land & Cattle Co. 554 U.S. 316. Supreme Court of the United States. 2008, Justia Law, supreme.justia.com/cases/federal/us/554/316/.
Vock, Daniel C. “In Tribe v. State Cases, Supreme Court Shifts Support to Native Americans.” Public Safety & Justice, Governing, 28 May 2019, www.governing.com/topics/public-justice-safety/gov-tribal-rights-supreme-court-ruling-native-americans.html.