Currently in Washington, DC, the Senate Select Committee on Indian Affairs is drafting legislation to deal with tribal sovereign immunity. We do not yet know what the final version of a Senate bill will look like, but we do know that two very large issues will remain. The first is a clear definition of "tribal sovereignty," and the second is the role of "tribal courts."
Back in April, hearings were held on Senator Gorton's Senate Bill S.1691 "The American Equal Justice Act" which was dealing with sovereign immunity before the Select Committee. MN Senator Paul Wellstone, who hadn't been present to hear any of the testimony, came into the meeting room and asked to make a statement for the record. His statement was that tribal courts are underfunded and we should be spending more money on them. He then left without hearing any more testimony.
Numerous problems exist for tribal courts. First, tribal courts are not established under Article III, Section 1 of the United States Constitution, and tribal governments claim to be exempt from many of the amendments to the United States Constitution. For example, there is no guaranty to a right of jury trial under the 7th Amendment. The 10th Amendment reserves power to the people and states, not to tribes. Under the 14th Amendment, all persons born in the United States are citizens of the United States and the state wherein they reside. This is the amendment that guarantees the state cannot deny due process or equal protection. Tribes argue that they are not states, and thus not bound by the 14th Amendment. The 15th Amendment provides that the right to vote shall not be denied on account of race, but of course that does not apply to tribal government.
The United States Supreme Court has again tried to limit the power of tribes and tribal courts. First, the Court has held that while the bands have a limited form of inherent sovereignty, as a "domestic dependent nation" a tribe lacks external powers and hence has inherent authority only in dealing with internal matters. Only two exceptions exist to the general rule that tribal courts do not have jurisdiction over non-members. The first exception is where the individual enters into consensual commercial dealings with the tribe. The second is where the action by the individual, if occurring on a reservation, interferes with tribal self-government or its ability to control internal relations.
Nevertheless, tribes continue to try to bring non-members into tribal court under the "exhaustion" doctrine, which holds that tribal courts should first be able to decide whether or not they have the authority to hear a case. Although the Supreme Court has recently acted to limit the exhaustion doctrine, non-members still face the prospect of having to go through tribal court, and any appeals in tribal court, before they can go to federal court to have that decision reviewed. All too often, exhaustion refers less to the exhaustion of tribal court remedies and more to the exhaustion of a non-member dragged through a second court process.
So what's wrong with tribal court? First, some tribal courts are not established by tribal constitutions. Either they are established out of thin air, by inherent authority, or they are created despite the fact that the tribe's constitution has no provision for a court. For example, the Minnesota Chippewa Tribe constitution says nothing about creating a court- unlike the state and federal constitutions that provide for the creation of an independent judiciary. If the tribal executive committee or reservation business committee establishes the court, these political bodies set the rules and appoint the judges. In the case of the Minnesota Chippewa Tribe, the tribal executive committee even retains the ability to change court decisions on the tribal constitution it doesn't like. The point is tribal courts are not independent and are subject to political control. The Department of Interior for fourteen years told the Minnesota Chippewa Tribe they needed to amend their constitution to establish a tribal court. Nevertheless, in 1993, after the tribe expressed a desire to "pursue this matter at a high level within the Department of the Interior", the Department of Interior changed its mind and allowed the tribe to establish a judicial system. The attorney for the Minnesota Chippewa Tribe, in a letter to its Executive Director, revealed the lobbying behind this change by the Department of Interior:
"The Department of the Interior finally sent to the Tribe the long awaited letter about tribal court jurisdiction...
The letter accomplishes what we want. It overturns the old Solicitor's letters which said that no courts could be set up without a change in the tribal constitution. The letter is short - as we had asked - so there won't be lots of legal analysis to debate."
Why the change of position by the DOI? The only thing that had changed was the lobbying effort by the Minnesota Chippewa Tribe to the Department of Interior. The same concerns, including political control of the judiciary, remain unresolved. Although the Department of Interior said that the tribe could change its political system if it did not like the tribal court established, that is difficult for Indians and impossible for non-Indians.
All too often tribal courts are not independent, and non-Indians face a tribal system which is neither objective nor unbiased. The fact remains that there is no reason why matters involving non-Indians should not, and could not, be heard in state or federal courts where neither party has an unfair advantage.
Printed with the permission of CERA.