FROM THE ARCHIVE
Tribes seek to overturn Supreme Court
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WEDNESDAY, FEBRUARY 27, 2002

Tribal leaders and their advocates have drafted an ambitious and far-reaching legislative proposal aimed at restoring full criminal and civil jurisdiction over Indian lands in response to Supreme Court decisions that have slowly chipped away at treaties and sovereignty.

Although they point out the bill is emerging from an early development stage, they made clear this week its intent is to reverse rulings dating back to the 1970s. From high court actions that prevent tribes from asserting criminal authority over non-Indians to ensuring cooperation between sovereign governments, tribal leaders and attorneys said the goal is simple, if controversial, comprehensive and difficult to achieve.

"In the end, we will prevail," said attorney Susan Williams, "to restore tribes to the status of full sovereigns that pre-existed the United States Constitution and the formation of the United States."

At the very basic level, the bill seeks to reaffirm tribal sovereignty. Some provisions, such as expanding law enforcement contracting, are short term while others -- including what tribal leaders are calling the "Hicks fix" in response to a decision made last summer -- involve complex jurisdictional questions.

At the National Congress of American Indians this week in Washington, D.C., the Nevada v. Hicks decision and others have been at the top of the priority list. Yesterday, tribes laid out a strategy they hope will combat the rulings.

Tribes plan on proceeding on a number of fronts in order to get the bill on the table in 2003. Education of Congress, outreach to the public and looking at ways to resolve disputes at the local level are part of the effort.

But before that happens, tribal leaders said much work has to be done to streamline the bill to make it the most effective. When the measure is finally proposed, they acknowledged some members of Congress might try to do just the opposite of what is intended, they said.

"We'll have to make some tough decisions," said Ron Allen, chairman of the Jamestown S'Klallam Tribe of Washington and member of a task force seeking to whittle down the bill. "It has a lot of Christmas tree stuff."

Tribal leaders also said Indian Country has to look within to resolve its own problems. "It means we have to look at some of the dirty laundry," said a participant in the discussions.

Already, tribes have received encouragement from some members of Congress. The Senate Indian Affairs Committee is holding a hearing today to address recent rulings, an event Sen. Daniel Inouye (R-Hawaii), who heads the panel, has called historic.

They also got advice from the man who often sides with tribes when Indian cases reach the Supreme Court. In a first ever appearance for a member of the Court, Justice Steven Breyer said legislation was one way to go.

"There is room to get Congress into this act," he told the gathering yesterday.

Breyer also said there were other ways to strengthen sovereignty. Along with Justice Sandra Day O'Connor, whose recent support of tribes is encoded in blistering critiques of her colleagues, Breyer last year visited the court systems of the Navajo Nation and the Spokane Tribe of Washington.

Funding the courts, he said, was crucial to success of the justice systems. And along the lines of the approach tribal leaders are advocating, getting the word out is necessary.

"Other places have something to learn from this," he said, praising the two tribes for their sophisticated systems.

But in response to Navajo Supreme Court Justice Robert Yazzie, who said "We're always on the losing side," Breyer acknowledged there are difficult issues facing the high court. The Justices often decide Indian cases against a "background" of statutes rather than a specific law, he said.

"My job is not who's the best lawyer," he summed up. "My job is to find out an answer to this case."

The Court this term has not accepted any tribal cases although it has been asked to do so. If anything, that means tribes won't risk losing, said John Echohawk, director of the Native American Rights Fund, which has often been on the short end of the stick.

"It's been difficult to win in recent years," he lamented.

Ed. Note: Today's Senate hearing will be broadcast live on the Internet. See http://www.indianz.com/SmokeSignals/
Headlines/showfull.asp?ID=pol02/02272002-1a
for links.

Relevant Links:
National Congress of American Indians - http://www.ncai.org
The Supreme Court - http://www.supremecourtus.gov

Only on Indianz.Com:
Supreme Court docket shaping up (2/19)
Supreme Court Roundup: The 2000-2001 Term (6/19)
Supreme Court: The 2000-2001 Term (3/6)

Related Stories:
Inouye: 'This Is Your Day' (2/26)
Supreme Court bars state officials from tribal suit (6/26)
O'Connor defends tribes amidst squabbling (6/26)
Supreme Court strikes down Navajo tax (5/30)

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