Current Legal Issues Oct. 2005

Transcription

INDIAN LAW SECTION
Current Legal Issues
STATE BAR OF NEW MEXICO
Indian Law Section
1
the
Muddy Waters
of Indian Country
Part 1, Criminal Jurisdiction
By Alexander Beattie
In January 2004, the New Mexico Court of Appeals disavowed an
earlier decision of the court which held that pueblos are indistinguishable from other Indian reservations for the purpose of criminal
jurisdiction.1 The case, State v. Del E. Romero,2 involves a member of
the Taos Pueblo arrested for an alleged assault of another Taos member on land that is within the boundaries of the original pueblo grant
but is now owned in fee by non-Indians. The New Mexico Supreme
Court granted certiorari to review the Court of Appeals’ decision.3
In finding that the Taos Pueblo should be treated differently from
other Indian reservations, the Romero court based its ruling on federal statute 18 U.S.C. §1151, which establishes the boundaries for
federal jurisdiction over crimes committed in Indian Country. Under New Mexico law, the state’s criminal jurisdiction is determined
by the federal statute4 which defines “Indian Country” as:
The federal Indian Country statute is not simple to interpret. Included in its legislative history are the notes from the Reviser’s Committee. These notes state that the statute was intended to “consolidate …
numerous conflicting and inconsistent provisions of law into a concise
statement of the applicable law.”10 The Reviser’s Notes explain that
the statute’s definition “is based on latest construction of the term by
the United States Supreme Court in U.S. v. McGowan, following U.S.
v. Sandoval” (internal cites omitted). Three other cases are included in
the Reviser’s Notes as being used to define different aspects of “Indian
Country.”11 As one legal scholar pointed out, “… the statute does not
define what constitutes a ‘dependent Indian community,’ and the surprisingly sparse case law lends only vague guidance as to the meaning
of the phrase.”12
The Backdrop of Federal Indian Policy
… (a) all land within the limits of any Indian reservation
under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all
dependent Indian communities within the borders of the
United States whether within the original or subsequently
acquired territory thereof, and whether within or without
the limits of a state, and (c) all Indian allotments, the Indian
titles to which have not been extinguished, including rightsof-way running through the same.5
From its first use, “Indian Country” has been a term of art, subject
to changing conditions, used to apportion federal, state and tribal jurisdiction. The first statutory definition was passed in the Trade and
Intercourse Act of 1834,13 two years after the Supreme Court ruled
that the state of Georgia lacked jurisdiction over a non-Indian within
the boundaries of the Cherokee Nation. The Act, as interpreted by
the Supreme Court in Bates v. Clark, defined “Indian Country” as:
The Romero court relied upon the United States Supreme Court’s
opinion in Alaska v. Native Village of Venetie6 to hold that pueblos are
dependent Indian communities, distinct from reservations, and that
the fee land in question is no longer Indian Country.7 Applying a twopart test from Venetie,8 Romero held that non-pueblo-owned land,
even within the pueblo’s exterior boundaries, was neither set aside
by the federal government nor under federal superintendence and is
therefore no longer Indian Country.9 According to Romero, fee land
and rights-of-way in the pueblos, as dependent Indian communities,
are not Indian Country under 18 U.S.C. §1151(b). Rather, under the
Court of Appeals’ analysis, “Indian Country” includes three different
types of land:
This definition fit with the removal policy, which aimed to solve
the “Indian problem” by moving tribes beyond the boundaries of
the new republic. The most prominent concern in passing the first
statutory definition was making clear that “Indian Country” did
not include land that was within the boundaries of any state’s sovereign jurisdiction.
1151(a)
Reservations
Including
Patents and
Rights-of-Way
1151(b)
Dependent
Indian
Communities
Not Including
Patents and
Rights-of-Way
Allotments
Including
1151(c)
2
Indian Law Section
Rights-of-Way
… all that part of the United States west of the
Mississippi,…and not within any state to which
the Indian title has not been extinguished,….14
It was soon apparent, however, the policy of removal of Indian tribes
couldn’t keep up with the nation’s westward expansion. As the country
expanded westward, the Supreme Court had to continually redevelop
its definition of “Indian Country.” The next major case to deal with the
ever-changing definition, and jurisdiction over it, was ex parte Crow
Dog. Here, the Supreme Court had to consider a charge of murder
committed by an Indian against another Indian on an Indian reservation within a territory. The Court stated that:
[Indians] were nevertheless to be subject to the laws of the
United States, not in the sense of citizens, but, as they had
always been, as wards subject to a guardian; not as individuals,…but as a dependent community... (emphasis added).15
The Crow Dog opinion coined the term “dependent community,”
which later evolved into “dependent Indian community.” It held
that Indian Country could exist within a state/territory because
the Indians were to be considered as a dependent community of the
United States, as wards to its guardian, “whether within or without the limits of an organized State or Territory.”16 The Crow Dog
doctrine was continued in U.S. v. Kagama, which held that Indian
tribes were wards of the nation and dependent communities, and
that the authority that Congress can exert arose from its duty of
protection, which necessarily included the power to carry it out.17
The ambiguity of “Indian Country” coexisted with the ambiguity of
who inhabited it. The Indian Depredation Act provided adjudication
and payment for claims of U.S. citizens whose property had been
“taken or destroyed by Indians belonging to any band, tribe or nation
in amity with the United States…” (emphasis added).18 In 1901 the Supreme Court, in deciding whether the plaintiff could recover under
this act, offered its first definition of an “Indian Trib” [sic] in Montoya
v. United States, as a “…body of Indians of the same or a similar race,
united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory. ...”19 Thus
a formal definition of those persons within the “dependent communities” who were “wards of the federal government” existed to gauge as
to when and where Congress could exercise its plenary power over
Indian affairs within a state/territory. These three cases—Crow Dog,
Kagama, and Montoya—established the criteria by which Congress
could exercise its plenary power of Indian affairs.
Redefining “Indian Country”
At the close of the 19th century, a change in federal Indian policy
emerged. Treaty-making with Indian tribes had ended. The federal
government began using reservations to prepare Indians for assimilation along with the policy of allotting Indian land in severalty to individual Indians. In conjunction with the new policy of assimilation
and as territories were admitted to the union, the doctrine of “equal
footing” was used by the states to argue for control over Indian lands.
Subsequent court decisions held that when a state was admitted “on
equal footing” with other states into the union, any aboriginal Indian
land that had not been exempted by treaty or congressional statute
lost its status as Indian Country. By 1912 with the admission of the
48th state into the union, Indian Country ceased to exist outside reservations and the various allotments established by treaty, statute or
executive order.20
The next change in Indian Country came with the creation of different types of Indian reservations, which led to continued disputes over
the extent of Indian Country. Congress’ ability to preempt state control
over Indian reservations, other than the traditional “treaty reservations,”
was determined by the Supreme Court in Minnesota v. Hitchcock.21 The
Court upheld the validity of the reservation even though there had been
no formal action taken creating it as a reservation. “The reservation thus
created stood precisely in the same category as other Indian reservations,
whether established for general or limited uses, and whether made by
the direct authority of Congress in the ratification of a treaty or indirectly through the medium of a duly authorized executive officer.”22
Construction of the
Modern Indian Country Statute
The Reviser’s Notes to the 1948 codification of the “Indian Country” definition cite five cases as providing the authority in the new
construction Indian Country.23 In 1912, executive order reservations were held to be Indian Country in U.S. v. Donnelly.24 In the
next two years, the Supreme Court held in U.S. v. Sandoval25 that
the pueblos in New Mexico were Indian Country, and in U.S. v. Pelican,26 individual Indian allotments still held in trust were as well.
In the last two cases cited in the Reviser’s Notes, U.S. v. McGowan27
and Kills Plenty v. U.S.,28 courts held that reservations, which were
not within aboriginal Indian lands and land within reservations,
regardless of ownership, were Indian Country. These cases have not
been overruled and continue to be good law.
In Romero, the Court of Appeals court relied on Venetie, which
stated that “Before §1151 was enacted, we held in three cases that
Indian lands that were not reservations could be Indian Country
… Sandoval; Pelican; McGowan.”(internal cites omitted).29 When
this phrase is quoted by itself, it appears that Venetie, a unanimous
decision, was declaring that the pueblos are not reservations and
therefore must be “dependent Indian communities.”30
The Reviser’s Notes, however, refute the notion that §1151(b) is
solely a codification of Sandoval. As Venetie’s next line notes, “[The]
Historical and Revision notes … state that § 1151’s definition of
Indian country is based on [the] latest construction of the term …
in U.S. v. McGowan ... following U.S. v. Sandoval.”31 According to
the Reviser’s Notes and even the Venetie court, the entire section of
1151, and not just subsection (b), was based on the term’s construction in McGowan, following Sandoval.
Dependent Indian Communities
Romero and Venetie reasoned that §1151(b) was a strict codification of U.S. v. Sandoval, an erroneous conclusion for several reasons. First, the language in Sandoval had appeared over 30 years
earlier in Ex Parte Crow Dog, a case dealing with a prototypical Indian reservation. Second, the Reviser’s Notes in the legislative history to the Indian Country statute state that the entire statute, and
not any particular subsection, was based on the latest construction
of Indian Country in U.S. v. McGowan, following its construction
in Sandoval. Third, as various courts have pointed out, the status of
the land will be dispositive to the finding of Indian Country, which
the respondents and amici in Venetie state creates an “informal reservation,” making dependent Indian communities as a distinct form
of Indian Country superfluous.32 This points to the foundation of
the Indian Country statute: federal Indian Country consists of
reservations, formal or informal, and of allotments. There are not
three distinct types of Indian lands with corresponding additions
or exclusions. Subsection (b) is not the next step in a list, but rather
a qualifying statement about the placement of reservations in relation to state sovereignty. To understand this more, one should
compare the Indian Removal Act33 and the Trade and Intercourse
Act with the holding in Crow Dog, Kagama and Sandoval. As such,
the Indian country statute would look like the following:
Nor can it be argued that the pueblos are the prototypical “dependent Indian communities” based on Sandoval alone. Sandoval’s
1151(a) Reservations:
whether formal
or informal
1151(b)
1151(c)
Including
Patents and
Rights-of-Way
This includes all (Indian reservations) within
the U.S. even if they are within a state/
territory or part of a territory subsequently
acquired by the U.S.
Allotments
Including
Rights-of-Way
Indian Law Section
3
holding can be summed up in one sentence: all dependent Indian
communities (whether a treaty, statute or executive order reservation34) and the Indians within them (natives of the same race, united
under one government and inhabiting a particular territory, “tribal”
or “pueblo”) as “wards” are within the protection of the federal government, within or outside of a state/territory, and Congress alone
has the duty/power to protect them. The Sandoval decision was not
novel; this was the holding in Crow Dog, Kagama, and Montoya 30
years prior.35 In McGowan, the Court held that it was immaterial
whether the land in question was labeled a “colony” or a “reservation.” The determining criterion was whether the land had been set
aside and supervised by the federal government, a holding previously
stated in various other cases. The Venetie Court was not distinguishing between different types of Indian Country for the purpose of
criminal jurisdiction, but rather pointed out that the land/village in
question was no longer connected in any type of trust relationship
with the federal government, which is central to the designation of
“Indian Country.”
Conclusion
By 1912, Indian Country had ceased to be “land west of the Mississippi” and instead was limited to the various reservations created
by treaties, statutes and executive orders. All reservations (or as the
Supreme Court denominated them, “dependent Indian communities”) throughout the United States were protected by the federal
government, whether they were within or outside of a state/territory,
originally or subsequently acquired. The impetus of the designation
“Indian Country” hinged not on the name given to it, but on whether
it was land set aside and supervised by the federal government for the
benefit and protection of an Indian tribe.
When Congress acted in 1948, defining “Indian Country” to include every Indian community under its guardianship and therefore dependent upon it, it sought to afford the protection of federal prosecution, rather than state prosecution, for certain major
crimes. Interpreting the Indian Country statute as a “list of three
different types of Indian Country,” as the Court of Appeals does
in Romero, produces conflicting rather than remedial results. The
three different types and treatments do not reflect a consolidated
and concise statement of applicable law as noted by the revisers.
_______________________________
About the Author: Alexander Beattie is a third-year student at the University of New Mexico School of Law. He assisted in writing an amicus
brief on behalf of the American Indian Law Center, Inc. and the Native
American Law Students Association (UNM Chapter) supporting the appellant in State v. Romero, 2004 NMCA 12 (2004). Mr. Beattie would
like to express his appreciation to Professor Kip Bobroff, UNM School of
Law, for his assistance with this article. Mr. Beattie may be contacted at
[email protected]
Endnotes
State v. Romero, 2004 NMCA 12 (2004) (disavowing State v. Ortiz,
105 N.M. 308, 731 P.2d 1352 (Ct. App. 1986).
2
State v. Romero, 2004 NMCA 12.
3
The Supreme Court consolidated Romero with State v. M. Gutierrez, a
case involving a crime allegedly committed on fee land within Pojaque
Pueblo.
4
State v. Romero, 2004 NMCA 12, ¶ 8, 9.
5
18 U.S.C. §1151. Compare with N.M. Const. Art. 21, § 8: “and the
terms ‘Indian’ and ‘Indian Country’ shall include the Pueblo Indians
of New Mexico and the lands owned or occupied by them on the
twentieth day of June, nineteen hundred and ten, or which are occupied by them at the time of the admission of New Mexico as a state.”
1
4
Indian Law Section
See also State v. Ortiz, 105 N.M. 308, 731 P.2d 1352 (Ct.App.1986)
(issue is whether the situs of the offense, within the exterior boundaries of San Juan Pueblo, is “Indian Country” within § 1151, thus depriving the state of jurisdiction to prosecute defendant).
6
Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520
(1998).
7
Romero at ¶ 11.
8
Venetie at 530.
9
Romero at ¶ 26.
10
S.R. No. 303 and H. R. No. 352, see 1949 U.S. Code Cong. Service,
p. 1248, as published in the historical and Reviser’s Notes to 18 U.S.C.
§ 1151.
11
Id.
12
Hall, Gilbert L., An Introduction to Criminal Jurisdiction in Indian Country, American Indian Lawyer Training Program (Oakland
1981).
13
Trade and Intercourse Act, 4 Stat. 729 (1834).
14
Bates v. Clark, 95 U.S. 204, 205 (1877), quoting the Trade and Intercourse Act, 4 Stat. 729 (1834).
15
ex parte Crow Dog, 109 U.S. 556, 568-69 (1883).
16
Id. at 572, quoting U.S. v. Joseph, 94 U.S. 614, 617 (1876).
17
United States v. Kagama, 118 U.S. 375, 383-384 (1886).
18
Montoya v. United States, 180 U.S. 261, 264 (1901).
19
Id. at 266.
20
Marks v. U. S., 161 U.S. 297, 302 (1896); Ward v. Race Horse, 163
U.S. 504 (1896); Draper v. U.S., 164 U.S. 240 (1896); Minnesota v.
Hitchcock, 185 U.S. 373 (1902); see also The Kansas Indians, 5 Wall.
737.
21
Minnesota v. Hitchcock, 185 U.S. 373 (1902) (the land in question
was unceded aboriginal Indian land which was continually inhabited
by the tribe but never formally designated as a reservation or held in
trust by the federal government).
22
Id. at 390.
23
S.R. No. 303 and H. R. No. 352, see 1949 U.S. Code Cong. Service,
p. 1248, as published in the historical and Reviser’s Notes to 18 U.S.C.
§ 1151. The Reviser’s Notes have and continue to be used by a number
of courts as providing authoritative history to the Indian Country statute. See United States v. John, 437 U.S. 634, 648 (1978). “This language
first appeared in the Code in 1948 as a part of the general revision of
Title 18. The Reviser’s Notes indicate that this definition was based on
several decisions of this Court, interpreting the term as it was used in
various criminal statutes relating to Indians.”
24
U.S. v. Donnelly, 228 U.S. 243 (1912).
25
U.S. v. Sandoval, 231 U.S. 28 (1913).
26
U.S. v. Pelican, 232 U.S. 242 (1914).
27
U.S. v. McGowan, 302 U.S. 535 (1938).
28
Kills Plenty v. U.S., 133 F.2d 292 (8th Cir. 1943), cert. denied, 319
U.S. 759 (1943).
29
Venetie at 528, Venetie went on to explain that, “The entire text of §
1151(b), and not just the term ‘dependent Indian communities,’ is taken virtually verbatim from Sandoval, … later quoted in McGowan.”
30
Id.
31
Id.
32
Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, (1998);
1996 U.S. Briefs 1577. See, William C. Banby, American Indian Law
(4th ed. 2004) 131.
33
Act of May 28, 1830, 4 Stat. 411.
34
The defense in Sandoval argued that pueblo land is not held “in trust.”
The government countered by showing that the Mexican land grants
had to be confirmed by Congress, and the land was still protected
against alienation.
35
U.S. v. McGowan, 302 U.S. 535, 538-39 (1938).
State Taxation of Off-Reservation Products
Sold On-Reservation by Tribal Enterprises:
When is “Value Generated” on the Reservation?
By Karl E. Johnson, Esq.
The U.S. Supreme Court recently granted certiorari in a case that
appears certain to clarify the jurisprudence of state taxation affecting on-reservation tribal business enterprises. Wagnon v. Prairie
Band Potawatomi Nation, No. 04-631, petition for cert. granted, Feb.
28, 2005.
At issue is whether the state of Kansas may levy a motor fuel
tax upon the off-reservation receipt of fuel by a non-tribal distributor—who then sells the fuel, at a price including the tax, to
an on-reservation service station owned by the Potawatomi Nation—which then sells the fuel, at a price again including the tax,
to retail customers, most of whom are patrons and employees of
the Nation’s adjacent casino. The Tenth Circuit Court of Appeals
invalidated the tax, reversing a District Court summary judgment
for the state. Prairie Band Potawatomi Nation v. Richards, 379 F.3d
979 (10th Cir. 2004).
The Tenth Circuit applied the federal preemption test derived from White Mountain
Apache Tribe v. Bracker, 448 U.S. 136 (1980),
which weighed federal, state and tribal interests to invalidate a state motor carrier
license tax and a use fuel tax applied to
non-Indians doing business on-reservation with the tribe, in light of the
principles of Washington v. Confederated Tribes of Colville Reservation, 447
U.S. 134 (1980). In the latter case, the
Supreme Court struck the balance of
interests in favor of the state and upheld state taxes applied to on-reservation retail sales of cigarettes by tribal
smokeshops. The shops were marketing solely “an exemption from state
taxation to persons who would normally do their business elsewhere,” and
not “value...generated on the reservations by activities in which the Tribes
have a significant interest.” Id. at
155. By contrast, the Court suggested that the federal/tribal
interests could outweigh
the state interest
where a tribe’s
“interest in raising revenues for
essential government programs...is
strongest[:] when the
revenues are derived from value generated on the reservation by
activities involving the tribes and when the taxpayer is the recipient
of tribal services.” Id. at 156-57.
In the Potawatomi case, the Tenth Circuit took the Supreme Court
up on its suggestion in Colville, holding that the state tax is preempted where: (1) the tribe taxes the product and thus sells it at
or near the price prevailing in the local market; (2) the tribe uses
the proceeds of the tax to maintain roads and bridges on the reservation, including the road from the closest major highway to the
casino, for which the state has no maintenance obligation; (3) 73
percent of product sales are to casino patrons and employees; and,
(4) the market for the product would not have existed in the rural
and isolated area but for the clientele attracted by the tribe’s development of the casino. The Tenth Circuit held that these factors,
combined with the strong federal and tribal interests in promoting tribal economic development, tribal self-sufficiency and strong
tribal governments, are sufficient to outweigh the state’s general
interest in raising revenue.
Of particular interest is the way the
Tenth Circuit handled the issue of
whether the sale of motor fuel, which
the tribal station received in “ready
to sell” condition, should be viewed
as merely importing a product for
resale (like the cigarettes in Colville)
or as “value generated” on the reservation (like the exception suggested
in Colville). It is the latter, the Court
reasoned, because one must look “beyond the physical fuel...and to view the
Nation’s fuel sales as an integral and
essential part of the Nation’s on-reservation gaming enterprise.” 379 F.3d
at 984. As authority for that proposition, the Court turned to California v.
Cabazon Band of Mission Indians, 480
U.S. 202 (1987), in which the Supreme Court balanced tribal and state
interests and distinguished Colville by
examining the tribe’s bingo enterprise
as including the facilities and ancillary
services offered to patrons: the tribes
“are not merely importing a product
onto the reservations for immediate
resale to non-Indians,” but have created an entertainment enterprise designed to attract non-Indian consumers
onto its reservation. Id. at 219 (prohibiting state regulation of
an on-reservation tribal bingo operation).
The Supreme Court granted certiorari in Potawatomi on three questions: (1) whether the White Mountain Apache interest-balancing
test should be used where the state tax is levied off-reservation;
(2) whether the interest-balancing test should be abandoned in
Indian Law Section 5
favor of a preemption analysis based on the principle that Indian
immunities are dependent upon Congressional intent; and, (3)
whether the Tenth Circuit incorrectly applied the interest-balancing test by holding that the market created by the casino qualified
the fuel sales as “value generated on the reservation.”
In its petition for certiorari, the state argues with respect to the first
question that White Mountain Apache dealt with state taxation of
on-reservation sales, and its interest-balancing test is inapplicable
where the incidence of the state tax occurs off-reservation (when
the distributor receives the motor fuel). Off-reservation, the state is
permitted to tax even tribal business activities unless Congress has
expressly forbidden it. Mescalero Apache Tribe v. Jones), 411 U.S.
145 (1973) (upholding a state gross receipts tax on the income of
an off-reservation tribal ski resort).
With respect to the second question, the state argues that if the
Court concludes that White Mountain Apache cannot be confined
to on-reservation activities, the interest-balancing test should be
abandoned altogether because of the unpredictability of its application and replaced by a straightforward examination of Congressional intent (the position advocated by Chief Justice William H.
Rehnquist in his concurring and dissenting opinion in Colville).
With respect to the third question, the state argues that the Tenth
Circuit’s expansive approach to the question of generation of value
on the reservation ignores the fact that the creation of the market,
for both the casino and the service station, would have been impossible but for the state’s maintenance of the highway leading to
the reservation, which it pays for with taxes like the one at issue
here. The issues are thus of critical importance to the future development of on-reservation businesses, their competitiveness in the
marketplace and the practical ability of Indian tribes to tax them.
The Supreme Court’s decision will be equally critical for all lawyers
called upon to advise their clients, whether tribal or not, about the
consequences of doing business in Indian Country.
Finally, on a related note, the same day the Supreme Court granted
certiorari in Potawatomi, it declined to re-examine the Ninth Circuit’s decision in Coeur D’Alene Tribe of Idaho v. Hammond, 384
F.3d 674 (9th Cir. 2004). Unlike the Kansas tax in Potawatomi, for
which the distributor is responsible, the incidence of the Idaho mo-
6 Indian Law Section
tor fuel tax falls on the retailer, and the distributor merely collects it
from the retailer and remits it to the state. Consequently, the Ninth
Circuit held, the tax on motor fuel delivered by non-tribal distributors to on-reservation tribally-owned gas stations violates the rule
of Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450,
458 (1995): a state may not tax the on-reservation income or property of Indian tribes or their members without clear Congressional
authorization (invalidating an Oklahoma motor fuel tax, which
placed the incidence of the tax on the on-reservation tribal retailer,
and rejecting a balancing of state, tribal and federal interests in favor of “a more categorical approach” when a state attempts to tax an
Indian tribe or its members inside Indian Country).
By denying the state’s petition for certiorari in Coeur D’Alene, the
Supreme Court also left standing the Ninth Circuit’s decision in
the case that the 1936 Hayden-Cartwright Act (4 U.S.C. § 104),
which permits imposition of state motor fuel taxes “on U.S. military
or other reservations,” is not a “clear Congressional authorization”
of such taxation with respect to Indian reservations. That issue has
been the subject of much recent litigation, which tribes have thus
far been winning, most recently in the North Dakota Supreme
Court, Mann v. N.D. Tax Commissioner, 692 N.W.2d 490 (N.D.
2005) (holding that the likelihood of error in the lower court’s ruling that the act did not authorize such taxation is “negligible” and
thus did not justify the exercise of the Supreme Court’s powers
of superintending control, based upon the results of every other
court that has considered the issue). The Ninth Circuit’s majority
opinion, however, drew a stinging dissent on the basis that the act
includes sales by “licensed traders,” a reference that could only mean
Indian traders, which indicates that Congress did intend it to apply
to Indian reservations. Given the importance of this issue to the
states, it is likely that we have not heard the last of it.
_______________________________
About the Author: Karl E. Johnson is a partner in the Albuquerque,
New Mexico law firm of Luebben, Johnson & Young, where his practice emphasizes Native American land, water, natural resources and
economic development issues, as well as general counsel representation
of Indian tribes in the western United States. He also represents nonnative clients in business and environmental matters. Mr. Johnson received the “Keep the Dream Alive” award in 1992 from the Dr. Martin Luther King, Jr. Multicultural Council, and in 1996 was honored
by the Albuquerque Bar Association as the city’s outstanding lawyer.
Cherokee v. Leavitt
543 U.S.___, 125 S. Ct. 1172, 2005 WL 464860
(decided March 1, 2005)
ANALYZED
By Michael P. Gross, Esq.
In a unanimous 8-0 ruling (with Chief Justice William H. Rehnquist
not participating), the U.S. Supreme Court declared that Indian
Self-Determination Act (ISDA) contracts must be interpreted and
enforced by ordinary rules of federal contract law. Cherokee Nation
v. Leavitt, 543 U.S. ____, 2005 WL 464860, March 1, 2005.
Since 1990, tribes and tribal organizations have been battling in
court over their contractual rights to full payment of
contract support costs under the ISDA. Contract
support costs are those additional amounts (often
called “overhead” or “administrative expenses”)
necessary for contractors to maintain program services at the same level the secretaries would under their own direct
operation. The Ramah Navajo Chapter in western New Mexico took
the lead by filing a class action in
October 1990 challenging the
indirect cost rate-making system
adopted by the Bureau of Indian
Affairs (BIA), which formed the
basis for calculating contract support costs.
After certification of the class and
reversal and remand of an adverse
lower court decision, Ramah Navajo
Chapter v. Lujan, 112 F.3d 1455 (10th Cir.
1997), the Ramah Navajo Chapter, later
joined by the Oglala Sioux Tribe and the Pueblo of Zuni for added claims, succeeded in achieving
two class settlements of approximately $80 million
and $29 million each reported at 50 F. Supp. 2d 1091
(DNM. 1999) and 250 F. Supp. 2d 1303 (DNM. 2002). Further
claims are pending.
The Ramah decisions, however, did not deal with a government
defense of unavailability of funds. Cherokee dealt with this defense
only for so-called lump sum years. BIA and Indian Health Service (IHS) are the two agencies charged with implementing ISDA.
Prior to 1994 for the BIA and prior to 1998 for the IHS, annual
appropriations were in lump sum form. That is, a general appropriation was enacted each year by Congress covering operations of
each agency including the duty added by amendments to ISDA in
1988 and 1994 to add the full amount of contract support costs to
each contractor’s annual funding agreement. Since 1994 for BIA
and 1998 for IHS, appropriations for contract support costs have
been capped. Out of the general appropriation, Congress has segregated a portion for contract support preceded by the words “not
to exceed.”
In the late 1990s the Cherokee Nation of Oklahoma and the
Shoshone-Paiute Tribes of the Duck Valley Reservation initiated
claims against IHS for contract support costs under the Contract
Disputes Act, 41 U.S.C.. §§ 601 et seq., which is incorporated into
ISDA by the 1988 amendments. After denials by their contracting
officers, the tribes filed two separate cases, one by the Cherokee
Nation and Shoshone-Paiute Tribes in the Federal District Court
for the Eastern District of Oklahoma for certain years, and the
other just for Cherokee in the Interior Board of Contract Appeals
(IBCA) for other years. The Oklahoma case involved both lump
sum years and capped years; the IBCA case only involved
lump sum years.
These two cases resulted in contradictory decisions. In the Oklahoma case, the Tenth
Circuit Court of Appeals upheld summary judgment for the government on
all claims based on the government’s
defense of unavailability of funding. In the IBCA case, the ruling
on lump sum years went in favor
of Cherokee and was upheld on appeal by the Court of Appeals for
the Federal Circuit. This inconsistency persuaded the U.S. Supreme
Court to grant certiorari in both
cases and consolidate the cases for
review.
To understand the immediate holding
by the Supreme Court, some knowledge
of federal appropriations law is required. A
four-volume treatise of the General Accounting
Office contains much of this law, but for purposes
of this analysis the essential points are these:
When an appropriation exists sufficient in amount, scope,
purpose and time to liquidate a contract debt owed by the
United States, the so-called “lump sum” rule applies. Under cases such as Blackhawk Heating & Plumbing Co., 622
F.2d 539 (Ct. Cl. 1980), under a lump sum appropriation,
it does not matter whether the agency has expended the
money elsewhere. The funds to pay the contract are considered legally available because of the impossibility of the
contractor’s knowing that the agency has or might spend
the money elsewhere. In Cherokee, the Supreme Court
held that the appropriations were sufficient in amount to
cover all the contract debts under Cherokee’s and Shoshone-Paiute’s ISDA contracts and held that the tribes were
entitled to payment of their contract damages from the
Judgment Fund, 31 U.S.C.. § 1304.
Along the way the high court rejected each of the government’s defenses:
a) Money was alleged to be unavailable because of the agency’s need to use the appropriation to pay for its core costs called
inherent federal functions.
b) ISDA contracts are not real contracts because they are
“government-to-government” agreements under which tribes or
their organizations assume control of government programs and
thus take the place of the government, which under the Anti-Deficiency Act may not expend more money than is appropriated.
specifically read the clause saying ISDA contracts are not procurement contracts intended to relieve tribes of burdens they might
otherwise be subjected to by contracting officers, not to negate their
enforceability as contracts under ordinary federal rules of contract
interpretation.
c) ISDA contracts are not procurement contracts and thus
not governed by ordinary federal contracting law.
The Cherokee case dealt only with lump sum years. Still to be decided is the tribes’ contentions in pending class actions against both
agencies that even in capped years the obligation of the government
to pay full contract support costs remains. The argument emanates
from the precise wording of the proviso, which only limits “provision
of funds subject to availability of appropriations,” not the contract
obligation of the United States. “Provision” means “payment,” not
“contract price.” In Cherokee, the Supreme Court did not mention
the capped years. However, its decisive, unanimous conclusion that
ISDA contracts are subject to ordinary contract rules of interpretation bolsters the argument of the tribes enormously.
d) A clause in each appropriations act since 1999 bars damages by saying that all monies appropriated in prior years are the
only monies available to pay ISDA contracts, an attempt to skirt
the Contract Disputes Act (CDA), which in 41 U.S.C. 612 mandates that all breach of contract judgments of the United States
under the CDA are to be paid from the Permanent and Indefinite
Judgment fund, 31 U.S.C.. § 1304.
To dispose of all these defenses, the Court emphasized a single
proposition:
Among the building blocks of ordinary federal contract law are included the following:
. . . [T]he government in effect claims [on the basis of a
proviso in 25 U.S.C. 450j-1(b)]1 to have the legal right to
disregard its contractual promises if, for example, it reasonably finds other, more important, uses for an otherwise
adequate lump-sum appropriation.
In our view, however, the government must again shoulder
the burden of explaining why, in the context of government
contracts, we should not give this kind of statutory language its ordinary contract-related interpretation, at least
in the absence of a showing that Congress meant the contrary. We believe it important to provide a uniform interpretation of similar language used in comparable statutes
lest legal uncertainty undermine contractors’ confidence
that they will be paid, and, in turn, increase the cost to the
government of purchasing goods and services (citations
omitted). The government, in our view, has provided no
convincing argument for a special, rather than ordinary,
interpretation here.
This passage means that ISDA contracts are ordinary government
contracts subject to the whole body of federal contracting law. Indeed, Congress was warned before passage that this would be the
outcome if the bill were passed. None other than John R. Bolton,
then an assistant attorney general and currently the U. S. Representative to the United Nations, wrote a 1988 letter to Senator Daniel
K. Inouye, chair of the Senate Committee on Indian Affairs, in advance of passage of the ISDA later that year. Bolton argued for the
proposition that ordinary federal procurement law would become
the standard for review of disputes under ISDA:
Regardless that self-determination contracts may not otherwise be considered “procurement contracts,” unless this
body of existing law can be looked to for guidance, the
courts and boards will have no foundation upon which to
resolve disputes.2
Accepting that premise, Congress passed the self-determination
Act, reinforcing its intention that ISDA contracts be held to be
real contracts enforceable like contracts for fighter aircraft and paper clips. Now the Supreme Court has emphasized this point by
noting “[t]he Act, for example, uses the word ‘contract’ 426 times
to describe the nature of the government’s promise. ...” The Court
1. Ambiguities are resolved against the government as drafter of
government contracts.
2. Contract clauses as well as statutory clauses must all be given
effect if possible.
3. If the government does not ask for enough money from Congress to pay its contracts, it is liable unless it has inserted a
clause clearly shifting to the contractor the risk that the government might not ask for enough money. That risk falls on
the government.
About the Author: Michael P. Gross graduated from Brown University
and earned his L.L.B. at Yale Law School in 1968. He joined DNA
Legal Services, Navajo Nation, in 1968, helped found and became first
administrator of Ramah Navajo School Board in 1970, and served as
the NARF consulting attorney for Indian education. Gross helped found
Coalition of Indian Controlled School Boards, served as counsel and assisted several Indian communities in getting their own schools. He was
an assistant professor at Franklin Pierce Law Center, NH, and since
1977 has been in practice in Santa Fe with emphasis on Indian law.
Endnotes
“Not withstanding any other provision in this subchapter, the
provision of the funds under this subchapter is subject to the availability of appropriations and the secretary is not required to reduce
funding for programs, projects, or activities serving a tribe to make
funds available to another tribe or tribal organization under this
subchapter.” 25 U.S.C.. § 450j-1(b).”
2
The Bolton letter was before the Court in Cherokee in the form
of an attachment by the author of this analysis to an amicus brief
filed on behalf of Tunica-Biloxi Tribe of Louisiana, Ramah Navajo School Board, Inc., Ramah Navajo Chapter and Oglala Sioux
Tribe, who are the named class representatives for two class actions
seeking recovery of unpaid, indirect, contract support costs against
the IHS and BIA.
1
NLRB Asserts Jurisdiction in Indian Country
San Manuel Indian Bingo, 341 NLRB No. 138 (May 28, 2004)1
By Danny W. Jarrett and Jim Cook
8(a)(2) and (1)4 of the Act by assisting and supporting the ComIn a 3–to–1 May 28, 2004 decision, a four-member panel of the
munication
Workers of America (CWA) and by allowing CWA
National Labor Relations Board (NLRB or Board) overruled 28
agents access to the respondent’s casino for organizing purposes
years of NLRB precedent holding that the NLRB had discretionwhile denying access to agents of HERE.
ary jurisdiction over “commercial enterprises” owned and operated
by Indian tribes even when the commercial enterprise was located
The respondent filed an answer denying wrongdoing and asserted
on the tribes’ reservations. The Board’s ruling established a new
that the Board lacked jurisdiction over its operations as an affirmastandard for determining when the National Labor Relations Act2
tive defense. On Jan. 18, 2000, the respondent moved to dismiss
(NLRA or Act) applies to Indian tribes. Under the Board’s new
the complaint for lack of jurisdiction. On Jan. 27, 2000, the case
standard, the NLRA will apply to tribal employers, whether locatwas transferred to the Board,5 and a Notice to Show Cause why
ed physically on or off the reservation, unless: (1) the Act touches
the respondent’s motion should not be granted was issued. Twenty
exclusive rights of self-government in purely intramural matters, or
amicus briefs were filed in
application of the Act would
abrogate treaty rights; or (2)
The tribe operates a casino within the limits support of the motion. The
NLRB general counsel, the
policy considerations weigh
of its reservation through a tribal government union and the state of Conagainst the assertion of the
board’s discretionary jurisdiceconomic development project wholly owned necticut, intervenor, filed
briefs opposing the motion
tion.
and operated by the tribe.
and briefs in response to the
amicus briefs.
Under San Manuel, tribal
owned and operated businesses considered “commercial enterprisUnder existing precedent, the Board would have declined to exeres” by the NLRB will generally have to comply with the NLRA and
cise jurisdiction and dismiss the complaint because the San Manaccommodate union activity protected by the Act. The ruling will
uel Casino was located entirely on the reservation and operated by
force such commercial enterprises to comply with the Act vis-àthe tribe. This precedent was based on the Board’s holding in Fort
vis union organizing efforts, possibly negotiating and entering into
Apache, 226 NLRB 503 (1976), that “‘an Indian tribal governing
collective bargaining agreements with unions, allowing strikes and
council qua government, acting to direct the utilization of tribal
picketing and providing information requested by a union that is
resources through a tribal commercial enterprise on the tribe’s own
needed for the union to adequately represent its members. Followreservation,’ was not an employer within the meaning of Section
ing San Manuel, tribal employers and counsel representing them
2(2) of the Act.”6 The Board’s reasoning in Fort Apache was that a
must incorporate labor law considerations into their employment
tribal
council was a government and that commercial enterprises
and business strategy or risk having a union file an unfair labor
run by a tribal council were governmental entities analogous to
practice (ULP) charge, possibly followed by an NLRB complaint
political subdivisions of a state, which are excluded from coverage
and adjudication under NLRB rules and precedent.3
under Section 2(2)7 of the Act. In Southern Indian, 290 NLRB
436 (1988), the Board reached a similar conclusion concerning a
The San Manuel Band of Serrano Mission Indians is an Indian
tribal-operated nonprofit health care clinic located on a
tribe located on a reservation in San Bernardino County, Calif. The
reservation.
tribe operates a casino within the limits of its reservation through
a tribal government economic development project wholly owned
and operated by the tribe. The respondent employer is the tribal
government economic development project. The tribe operates
and regulates the casino pursuant to its own legislation and sets all
significant policies and working conditions including wage, salary
and benefit scales, vacation and leave policies and general working
conditions for employees. The tribe has a tribal labor relations ordinance regulating labor relations at the casino project. Members of
the tribe hold all key positions in the project, and tribal members
are involved in every facet of the project. However, not all employees are tribal members, and many of the casino’s patrons are nonmembers who come from outside the reservation.
Multiple unfair labor practice charges were filed with the NLRB
on Jan. 8, 1998 by the Hotel Employees and Restaurant Employees
International Union (HERE or the Union). An order consolidating multiple complaints was issued on Sept. 30, 1999. The consolidated complaint alleges that the respondent violated Section
The next case with a jurisdictional question concerning an Indian-owned enterprise was Sac & Fox, 307 NLRB 241 (1992). The
enterprise was a manufacturing corporation providing chemicalresistant suits under a Department of Defense contract located
off the reservation. The Board exercised jurisdiction in Sac & Fox,
based primarily on the fact that the enterprise was located off the
reservation. The Board further concluded that its prior precedent
only applied in cases where the tribal enterprise was located on the
reservation. Since the Board found that the Act did not expressly
exclude a tribal enterprise from its jurisdiction, the Board
found the Act to be a “statute of general applicability” and therefore applied to Indians under
Federal Power Commission v. Tuscarora
Indian Nation, 362 U.S. 99 (1960)
and Donovan v. Coeur d’Alene
Tribal Farm, 751 F.2d 1113
(9th Cir. 1985).
Finally, in Yukon Kuskokwim Health Corp.,
328 NLRB 761 (1999),
the facts were essentially
the same as Southern Indian except that the enterprise in question was
in Alaska, which has no
Indian reservations. For
that reason, the Board
asserted jurisdiction, rejecting the tribe’s argument that the nature of
the enterprise should be
considered, not just its
location. Thus, Board
precedent was firmly established that the location of the enterprise was
the determinative factor in
considering whether a tribal
enterprise was subject to jurisdiction under the Act.
Although the Board could have declined to
exercise jurisdiction in San Manuel, it decided to
address inadequacies in balancing the “competing goals of federal labor policy and the special status of Indian tribes in our society and legal culture.”8 First, the Board stated that “[t]he Supreme
Court ‘has consistently declared that in passing the National Labor
Relations Act, Congress intended to and did vest in the Board the
fullest jurisdictional breadth constitutionally permissible under the
Commerce Clause.’”9 Second, the Board looked at Section 2(2) of
the Act and concluded that Indian tribes were not expressly excluded
from the Act’s jurisdiction. Third, the Board concluded that Indian
tribes did not meet either of the two exemptions in Section 2(2)
since they were not federal government entities and did not “meet
the Board’s or reviewing courts’ traditional definition of a state or
political subdivision thereof.”10 Fourth, the Board concluded that
exemptions of Section 2(2) were to be narrowly construed. Finally,
the Board noted that Congress had expressly excluded Indian tribes
in other workplace statutes and concluded that “Congress purposely chose not to exclude Indian tribes from the Act’s jurisdiction.”11
Based on this reasoning, the Board held that there were no implicit
exemptions in the Act that precluded the Board from asserting ju-
risdiction over a tribal enterprise and expressly “overrule[d] prior
precedent to the extent that it holds otherwise.”12
Having concluded that the Act did not preclude the Board from
asserting jurisdiction over tribal enterprises, the Board then addressed the question of whether federal Indian policy required the
Board to decline jurisdiction. The Board concluded that federal
Indian policy did not preclude the Board from asserting jurisdiction primarily because the Act was a statute of general application
and “statutes of ‘general application’ apply to the conduct and
operations, not only of individual Indians, but also
of Indian tribes.”13
Next, the Board noted that the
Ninth Circuit had enumerated
several exceptions limiting
jurisdiction over Indian
tribes14 since the broad
principle in Tuscarora
would result in an “expansive application of jurisdiction”.15 Finally the
Board concluded that its
Tuscarora–Coeur d’Alene
analysis in Sac & Fox
was the correct analysis
to assess whether federal
Indian law and policy
precluded jurisdiction
and explicitly overruled
prior precedent that the
analysis was improper in
on-reservation cases.
The last stage in the
Board’s discussion was
to add an additional step
to the Tuscarora–Coeur
d’Alene analysis, specifically
“to determine whether policy
considerations militate in favor of
or against the assertion of the Board’s
discretionary jurisdiction.”16 Thus, the Board
will determine whether to assert jurisdiction on a
case-by-case basis by weighing a number of factors.
In San Manuel, the Board decided that application of the Act to
the casino would not “touch exclusive rights of self-governance in a
purely intramural matter,”17 and since the respondent did not allege
the existence of any treaties, application of the Act would not abrogate any treaty rights. Next, the Board looked at policy considerations favoring the assertion of jurisdiction. The Board found that
the casino was a commercial enterprise, employed non-Indians, catered to non-Indian customers, and concluded that “assertion of jurisdiction would not unduly interfere with the tribe’s autonomy.”18
The Board found that “the only factor weighing against assertion of
jurisdiction is that the casino is located on the tribe’s reservation,”19
noting that the location factor was not sufficient to outweigh the
others. The Board disagreed with respondent’s argument that its
casino, like a state lottery, was a governmental function, rejecting
the notion that gambling was a traditional government function.
The Board also rejected the argument that the Indian Gaming Regulatory Act (IGRA)20 conflicted with or preempted the NLRA.
The most common ULPs implicate protected, concerted activity
(also known as Section 721 rights). Since tribal entities have not
generally been subject to NLRB jurisdiction before, they generally
have little knowledge about these rights and the applicable NLRB
case law. Activities (such as picketing in support of discharged
workers or discussions between employees about wages or benefits
for the “mutual aid and protection of co-workers”) that tribes might
have dealt with previously without consideration of the NLRA
would, under San Manuel, draw an unfair labor practice charge. After an investigation, it is then likely that an NLRB complaint would
issue. The tribal entity will find itself defending a full-fledged lawsuit before a federal administrative agency and defending its actions
in front of an NLRB administrative law judge.
Unfair labor practices are also common where employers have
overly broad no-access or non-solicitation policies. The ability of
tribal entities to keep out both employee or non-employee union
supporters or discharging or refusing to hire union “salts”22 would
also most likely draw an unfair labor practice charge followed by an
NLRB complaint.
As a result of this decision, tribal commercial enterprises, particularly casinos, can expect increased activity by unions now that the
NLRB’s jurisdictional barrier concerning tribes has been removed.
___________________________
About the Author: Danny W. Jarrett is president and managing shareholder of Noeding & Jarrett, a Professional Corporation. He is a 1996
graduate of the University of New Mexico School of Law where he
served as a staff editor of The New Mexico Law Review. Mr. Jarrett’s
legal practice focuses on counseling and representing employers and government entities regarding labor and employment disputes. His experience involves Title VII and Title IX of the Civil Rights Act, The ADA,
the FLSA, the FMLA and Davis-Bacon Act wage issues. He has also
achieved success in representing clients before the NLRB, the EEOC,
and the WCA. He has negotiated both original and successor collective bargaining agreements with various unions and has represented
management’s interests in many union organizational campaigns. Mr.
Jarrett has analyzed unemployment compensation and workers’ compensation issues from the perspective of both litigator and employer. Mr.
Jarrett wishes to acknowledge and express his gratitude to the co-author
of this article, Jim Cook, currently a third-year law student at the University of New Mexico School of Law.
Endnotes
Full text of the San Manuel decision is available at:
http://www.nlrb.gov/nlrb/shared_files/decisions/341/341-138.
pdf.
2
29 U.S.C. §§ 151-169.
3
The San Manuel ruling will be binding precedent in all NLRB
cases nationwide. It is not known at this time whether the ruling
will be appealed through the courts or whether the tribes will propose legislation for Congress to consider.
4
29 U.S.C. § 158(a)(2) and (1).
5
The complaint was initially filed in NLRB Region 31 (Southern
California). Cases are heard by an administrative law judge in the
region where the complaint was filed. Cases can be transferred to
Washington, D.C., where they can be reviewed by either the full
five-member board or a panel of three members. The NLRB’s casehandling procedures are available at http://www.nlrb.gov/nlrb/legal/manuals/chm1.asp.
6
San Manuel Indian Bingo, 341 NLRB No. 138 at 2 (May 28,
2004).
7
29 U.S.C. § 152(2).
8
2004).
9
2004) (citing NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224,226
(1963).
10
2004).
11
Id.
12
Id. at 5.
13
Id. (citing Federal Power Commission v. Tuscarora Indian Nation,
362 U.S. 99, 116 (1960)).
14
Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir.
1985).
15
2004).
16
Id. at 8.
17
2004).
18
Id.
19
Id. at 10.
20
25 U.S.C. § 2701 et. seq.
21
29 U.S.C. § 157.
22
Union “salts,” often paid union organizers, seek employment with
a non-union employer for the purpose of organizing its employees
into a union.
1
TWO YEARS
in the Jurisdictional Life of the Navajo Nation Supreme Court
By Paul Spruhan
As the court of last resort for the largest Indian tribe in the United
States, the Navajo Nation Supreme Court hears constant challenges to the governmental authority of the Navajo Nation. Most
challenges come from non-Indian individuals, corporations or governmental entities operating within the Nation, though Navajo
members or entities also occasionally challenge the Nation’s jurisdiction. These parties allege that the sovereign authority of the Nation, as defined and limited by federal Indian law, cannot extend to
them. This article surveys Navajo Nation Supreme Court decisions
from 2003 and 2004 concerning jurisdiction as a window into the
complex issues the Navajo Nation courts face every day.
Background of Federal Indian Law
on Subject Matter Jurisdiction
To understand Navajo Nation jurisdiction, one has to understand
federal Indian law. According to the United States Supreme Court,
federal law determines the scope of tribal sovereignty. See National
Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 853 (1985).
Therefore, the exertion of tribal power over any individual or entity
can be challenged in federal court, and the court may enjoin the
tribe from exerting its authority based on federal Indian law. See
id.
Federal Indian law restricts the authority of tribal governments,
including tribal courts, in two separate ways. First, a tribe’s governmental authority generally applies only on land considered “Indian
Country” under a criminal statute known as the “Indian Country”
statute. 18 U.S.C. § 1151. That statute defines “Indian Country”
as three types of land: (1) reservations, (2) dependent Indian communities, and (3) allotments. The Navajo Nation’s “Indian Country” is unclear in a large area of northwestern New Mexico. Federal
land policy created the “checkerboard” area on the Navajo Nation’s
eastern side, stretching from the Arizona border near Gallup all the
way to U.S. 550 between Farmington and Albuquerque. That area
includes separate parcels owned by the United States in trust for
the Navajo Nation (reservations) and for individual tribal members
(allotments). It also includes parcels owned by the Navajo Nation
or its members in “fee,” by the state of New Mexico, by the United
States and by private landowners. Questions concerning tribal, federal or state authority over this area are common in Navajo, federal
and New Mexico state courts, particularly whether certain parcels
are “dependent Indian communities.”1
The second and more significant restriction limits tribal authority over non-Indians within territory considered Navajo Indian
Country. In the criminal context, according to the United States
Supreme Court, tribes have no criminal jurisdiction over non-Indians. Oliphant v. Suquamish, 435 U.S. 191 (1978). In Montana v.
United States, 450 U.S. 544 (1981), the Court held that tribes lack
civil jurisdiction over non-Indians unless one of two exceptions exists: (1) the non-Indian has a consensual relationship with the tribe
or a tribal member; or (2) the non-Indian’s conduct threatens or
has some direct effect on the political integrity, economic security
12
Indian Law Section
or health and welfare of the tribe. While Montana itself restricted
this rule to parcels within Indian Country that are owned by nonIndians (“non-Indian fee land”), the last jurisdiction case before the
Court, Nevada v. Hicks, 533 U.S. 353 (2001), appeared to extend
the rule to all land within Indian Country. Hicks concerned a tribal
court’s jurisdiction over state law enforcement officers searching
for evidence within Indian Country of an alleged crime occurring
outside Indian Country. The Court applied Montana and held that
neither exception was met, even though the search occurred on a
trust allotment within the Fallon Paiute Reservation.
The Navajo Nation Supreme Court must decide the scope of the
Nation’s authority based on these decisions. As U.S. Supreme
Court decisions primarily cover only broad principles, the Navajo
Nation Supreme Court must develop its own approach within this
federal Indian law framework.
As U.S. Supreme Court decisions
primarily cover only broad principles,
the Navajo Nation Supreme Court
is required to develop its own
approach within this federal Indian
law framework.
Navajo Nation Supreme Court Jurisdiction
Cases:Territorial Jurisdiction
The Navajo Nation Supreme Court decided two challenges to the
Nation’s territorial jurisdiction in 2004. The Court did not apply
the Indian Country statute in either case, but instead applied other
rules to uphold jurisdiction.
In the first case, a non-profit Navajo corporation alleged the Navajo Nation Labor Commission could not hear a claim under the
Navajo Preference in Employment Act (NPEA),2 15 N.N.C. §§
601 et seq. (1995), arising at a facility located on land owned by the
Navajo Nation but outside the Navajo Reservation.3 See Cabinets
Southwest, Inc. v. Navajo Nation Labor Commission, No. SC-CV46-03 (Nav. Sup. Ct. February 10, 2004). The Court noted that the
United States Supreme Court recognizes congressional authority
over American corporations outside the territorial jurisdiction of
the United States in certain circumstances and held that the Navajo Nation possesses a similar power over corporations formed under Navajo law, regardless of whether the activity is within Indian
Country. As the Navajo Nation Council extended the reach of the
NPEA not only to employers within Navajo Indian Country, but
also to employers who have contracts with the Navajo Nation, 15
N.N.C. § 604(A) (1995), the Labor Commission had jurisdiction.
Another NPEA case concerned the Labor Commission’s authority
over employment at a mine operated by BHP Minerals. See Jackson v. BHP Minerals, No. SC-CV-36-00 (Nav. Sup. Ct. October 7,
2004). BHP operates two mines in the Shiprock/ Farmington area,
one on-reservation and one off-reservation. BHP hired Jackson at
the on-reservation mine, trained him there and kept its employment records for the off-reservation mine at the human resources
office there. However, Jackson actually worked at the off-reservation mine. After his termination, Jackson filed a claim for a violation
of the NPEA. The Supreme Court ruled that the activities at the
on-reservation mine concerning Jackson’s employment meant that
the employment relationship, and consequently the claim, arose on
the Navajo Reservation, triggering Labor Commission jurisdiction
over Jackson’s case.4
Jurisdiction over NonIndians within Navajo
Indian Country
In a series of other cases the Court
rejected a broad reading of Nevada
v. Hicks and upheld jurisdiction
over tribal land without requiring
fulfillment of the Montana exceptions.
Utah
Navajo
In Manygoats v. Atkinson Trading
Co., No. SC-CV-62-00 (Nav. Sup.
Ct. August 12, 2003), the Court
Arizona
held jurisdiction was appropriate
over a non-Indian business located
on fee land within the Arizona portion of the Navajo Reservation.
The Cameron Trading Post sells
Navajo arts and crafts primarily to non-Indian tourists.5 The land
on which it sits is completely surrounded by the Navajo Reservation. Manygoats filed a claim under the NPEA alleging the trading
post fired her without just cause. The Supreme Court recognized
a “consensual relationship” with the Navajo Nation and an impact
of Cameron’s employment practices on the economic security of
tribal members. Therefore, the Labor Commission had jurisdiction
to hear Manygoats’ NPEA claims.6
In a subsequent case, Nelson v. Pfizer, No. SC-CV-01-02 (Nav.
Sup. Ct. November 17, 2003), concerning subject matter jurisdiction, the plaintiffs had taken Rezulin®, a diabetes drug. They alleged
injuries resulting from the drug and sued Pfizer.7 The Supreme
Court, upholding Navajo Court jurisdiction, ruled that Montana
did not apply to the case because the plaintiffs had received their
prescriptions and the drug and/or ingested the drug on tribal land8
within the Navajo Reservation.9
The Court extended the Pfizer rule in Pacificorp v. Mobil Oil, No.
SC-CV-27-01 (Nav. Sup. Ct. November 24, 2003), which concerned two non-Indian corporations and whether one corporation
had to reimburse the other for payment of the Navajo Business
Activity Tax (BAT). The Supreme Court ruled that in cases where
contracts include both on-reservation and off-reservation activities, Navajo Nation courts have jurisdiction if there is a “sufficient
nexus to activity on tribal land.” As Pacificorp performed its part of
the contract at the Mobil facility on-reservation, jurisdiction over
the contract dispute was appropriate.10 The Court addressed Hicks
directly in two cases concerning Navajo Nation jurisdiction over
state officials.
In Dale Nicholson Trust v. Chavez, No. SC-CV-69-00 (Nav. Sup.
Ct. January 6, 2004), the plaintiff sought an injunction from the
Window Rock District Court against officials from the New
Mexico Taxation and Revenue Department. According to the complaint, those officials sought to seize property owned by the Trust
on land “within the territorial jurisdiction of the Navajo Nation”
for allegedly unpaid state taxes. The Window Rock District Court
dismissed the case for lack of subject matter jurisdiction, ruling
that it lacked authority over state officials conducting official state
business initiated outside the Navajo Reservation. The Supreme
Court reversed, ruling that since the seizure action itself was on
tribal land within the Navajo “Indian Country,” the Navajo Nation
had jurisdiction over the state officials, regardless of their status as
state officials. Based on its reading
of the Treaty between the Navajo
Colorado
Tribe of Indians and the United
States, June 1, 1868, art. 2, 15 Stat.
667, the Court held that Hicks did
not restrict the treaty power of the
Nation to exclude non-members
and, therefore, require conformance
with tribal laws on tribal land. As
Nation
a result, Montana did not apply on
tribal land within Navajo Indian
Country, even when state officials
were involved.11
New Mexico
Building on Dale Nicholson Trust,
the Court ruled that the Navajo
Preference in Employment Act applied to a state school district on the
reservation. Office of Navajo Labor Relations ex rel. Bailon v. Central
Consolidated School District No. 22, No. SC-CV-37-00 (Nav. Sup.
Ct. June 23, 2004). In this case, the Central Consolidated School
District entered into a lease with the Navajo Nation to operate a
school on tribal land in Shiprock. A Navajo tribal member alleged
she had been denied employment by the school in violation of the
preference section of the NPEA. The Supreme Court ruled that
under Dale Nicholson Trust, the Labor Commission had jurisdiction regardless of whether the school was a state entity, as the school
is located on tribal land. The Court also interpreted the contract as
showing the specific consent of the school to the application of the
NPEA. There was no waiver of the Nation’s jurisdiction.
Conclusion
These cases are a sample of the great variety of situations where jurisdictional challenges arise in the Navajo Nation courts. The large
size of Navajo Indian Country, its growing population and the increasing social and commercial contact between Navajos and nonIndians mean that the Navajo Nation Supreme Court will be called
on more often to decide jurisdictional issues. With these cases, the
Navajo Nation has developed its own precedents on federal Indian
law to be applied in its courts, which guide those who engage in
activity within the Nation or with the Nation and its members.
About the Author: Paul Spruhan graduated from the University of
Chicago in 1995 and earned his J.D. from the University of New
Mexico in 2000. He is presently serving as a law clerk for the Navajo
Nation Supreme Court. The comments in this article reflect those of the
author and are not an official statement of the Navajo Nation Supreme
Court.
Indian Law Section
13
Endnotes:
See, e.g., HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2001) (Navajo environmental regulatory jurisdiction over various checkerboard parcels); U.S. v. M.C., 311 F.Supp.2d 1281 (D.N.M. 2004)
(federal criminal jurisdiction over crime by Indian juvenile at Fort
Wingate Indian school); Cabinets Southwest, Inc. v. Navajo Nation
Labor Commission, No. SC-CV-46-03 (Nav. Sup. Ct. February 10,
2004) (Navajo employment regulation over fee parcel owned by
Nation) (see text at page 1); Tempest Recovery Services, Inc. v. Belone, 2002-NMSC-019 (2003) (Navajo repossession regulation on
allotment); State v. Frank, 2002-NMSC-026 (2002) (state criminal jurisdiction over crime by Navajo tribal member on state road
passing through federal BLM parcel).
2
The NPEA is a comprehensive labor statute that requires, among
other things, that employers only terminate employees for “just
cause.” 15 N.N.C. § 604(B)(8) (1995). Cabinets Southwest, Inc. v.
Navajo Nation Labor Commission, No. SC-CV-46-03 (Nav. Sup.
Ct. February 10, 2004).
3
The parcel at issue is adjacent to the Churchrock Navajo community outside of Gallup but is held in fee by the Navajo Nation.
Navajo Housing Authority formed Cabinets Southwest as a subsidiary under the Navajo Nation Corporation Code to manufacture cabinets for NHA homes. Cabinets Southwest’s articles of
incorporation include a specific consent to Navajo Nation law. Further, the lease for the parcel also includes a consent clause. Cabinets
Southwest sought a writ of prohibition against the Navajo Nation
Labor Commission, the administrative tribunal that has jurisdiction over NPEA claims. Cabinets Southwest argued the NPEA
did not apply because the parcel allegedly was not Navajo “Indian
Country” under federal Indian law and, therefore, any consent to
Navajo law was invalid. The Navajo Nation Supreme Court ruled
that the status of the parcel was irrelevant, as the formation of
Cabinets Southwest under the Navajo Nation Corporation Code
and the lease with the Navajo Nation meant that the Nation could
regulate employment there.
4
The Court ultimately upheld Jackson’s termination on the merits.
5
The same trading post had previously challenged the authority
of the Navajo Nation to tax its hotel. In Atkinson Trading Post v.
Shirley, 532 U.S. 645 (2001), the U.S. Supreme Court held that
the Navajo Nation failed to fulfill either Montana exception and.
therefore. could not tax Cameron.
6
The Court also upheld the decision of the commission on the merits. Cameron subsequently filed an action in the Federal District
1
14
Indian Law Section
Court for the District of Arizona. That court ruled that the Nation did not have jurisdiction, as it could not fulfill either Montana
exception. Based on that ruling, the decision of the Navajo Nation
Labor Commission became null and void. The case is currently on
appeal to the Ninth Circuit.
7
The Window Rock District Court dismissed the case for lack of
subject matter jurisdiction, ruling that the plaintiffs had failed to
fulfill either of the Montana exceptions to establish jurisdiction.
On appeal, Pfizer argued that Hicks required fulfillment of one of
the two Montana exceptions, regardless of whether the cause of action arose on tribal land.
8
In this and subsequent cases the Court defined “tribal land” as
land within the exterior boundaries of the Navajo Nation’s “Indian
Country” held in trust for the Navajo Nation or its members or
land held in fee by the Nation or its members. Essentially, “tribal
land” includes all land that is not non-Indian owned fee land or
federal or state government land.
9
The Federal District Court for the District of Arizona subsequently issued a preliminary injunction barring the Window Rock
District Court from moving forward on the case, disagreeing with
the Court’s analysis that Montana did not apply based on a subsequent Ninth Circuit case, Smith v. Salish Kootenai College, 378
F.3d 1048 (9th Cir. 2004). The Pfizer parties have since settled, but
the Smith case has had a significant impact. In Smith, the Ninth
Circuit ruled that Hicks required fulfillment of the Montana exceptions even on trust land within a reservation. The case is currently
awaiting en banc review. The Ninth Circuit followed that rule in a
subsequent case concerning Navajo jurisdiction in Ford Motor Co.
v. Todecheene, 394 F.3d 1170 (2005). Ford went straight to the federal district court after a ruling by the Kayenta District Court that
it had jurisdiction over a products liability case arising out of an accident on tribal land involving a tribal police vehicle manufactured
by Ford. The Ninth Circuit ruled the Navajo Nation courts had
no jurisdiction, concluding neither Montana exception was met. A
request for en banc review is pending.
10
The Court also affirmed the Shiprock District Court’s abstention
to a pending case before the Federal District Court for the District
of Utah. The merits of the case are now before that court.
11
As the plaintiff in the case had not specified whether the land
where its business was located was tribal land or non-Indian owned
fee land, the Court remanded the case for further fact finding in a
case pending.
NAVAJO NATION
Arbitration Act
By Lawrence A. Ruzow, Esq.
On July 20, 2004 the Navajo Nation Council passed the Navajo
Nation Arbitration Act (NNAA). It was signed into law by Navajo
Nation President Joe Shirley, Jr. on Aug. 2, 2004.
The NNAA was sponsored by Navajo Nation Council Delegate
Lorenzo Bates who, prior to his election to the Navajo Nation
Council, was general manager of the Navajo Agricultural Products
Industry, a Navajo Nation enterprise that runs the business aspects
of the Navajo Indian Irrigation Project on lands near Farmington.
(Bates’ sister, Claudeen Bates Arthur, Esq., was a member of the
State Bar of New Mexico and at the time of her death was chief
justice of the Navajo Nation.)
A related provision calls for the Navajo Nation Supreme Court to
set fees for arbitrators by regulation. (§ 13 [1]). I do not believe
the Navajo Nation Supreme Court has yet done this. It is unclear
whether fees provided for in the agreement, or arbitrate, or a schedule of fees of an organization designated as arbitrator in the agreement (such as the American Arbitration Association) would apply.
It is also not clear whether or not an award may include attorneys’
fees and costs. The NNAA states, “The arbitrator’s expenses, fees
and other costs, not including counsel fees, incurred in the arbitration shall be paid as provided in the award, unless otherwise provided in the arbitration agreement.” (§ 13 [2]). Whether this provision limits an award of attorneys’ fees, or deals only with payment
of such fees, is not known.
The NNAA is designed to provide for an additional method of
“alternative dispute resolution”1 in addition to the Navajo Peacemaking program, a Navajo court-sponsored mediation program
in which attorneys are not permitted to participate. The NNAA
permits representation by members in good standing of the Navajo
Nation Bar Association. (NNAA § 9).
The NNAA contains basic due process provisions for hearings. (§
8). It also makes provision for attendance of witnesses and production of documents. (§ 10).
Presumably, an unstated purpose of the NNAA is to deal with the
reluctance of some parties to agree to use the courts of the Navajo
Nation for resolution of disputes. Such parties often complain that
they would not get a fair hearing from a Navajo judge who is not
a law school graduate and State Bar member;2 nor, they complain,
would they get a fair hearing if their dispute were with the Navajo
Nation Government, a Navajo Nation member or a Navajo Nation-controlled entity.
An award that is confirmed, modified or corrected by a court can be
enforced “as any other judgment.” (§ 17).
The NNAA is a relatively standard arbitration act. It makes agreements to arbitrate valid and enforceable. (NNAA §§2 and 3).
Equally important, given that current Navajo Law generally prohibits interlocutory appeals, the NNAA permits an immediate appeal of an order denying an application to compel arbitration. (§
19 [1]).
The NNAA provides that a procedure for selection of arbitrators
in an agreement to arbitrate shall be followed but grants the trial
court authority to appoint arbitrators if for any reason that procedure cannot be followed or if no specific procedure is set forth in
the agreement. (§ 5).
The NNAA is ambiguous on the question of qualifications of arbitrators. As § 6 states, “The qualification of a person allowed to
serve as an arbitrator under this Act shall be set by the Navajo Nation judicial branch.” It is not clear whether this section applies only
to court-appointed arbitrators or whether it applies to all persons
serving as arbitrators under the NNAA. Thus persons named in
an agreement to arbitrate (or selected by the parties pursuant to
the procedure set forth in the agreement) do not need to meet these
qualifications. It is my understanding that the Navajo Nation judicial branch has not yet adopted any qualifications for arbitrators.
The NNAA makes provision for confirmation, modification and
vacation of awards. (§§ 12, 14, 15 and 16).
A largely unanswered question is whether an agreement to arbitrate
entered into by the Navajo Nation3 in and of itself4 constitutes a
waiver of sovereign immunity such that: a) the Navajo Nation may
be compelled to honor the agreement to arbitrate; and b) even if it
can be so compelled, whether an award can be enforced against the
Navajo Nation. The only provision of the NNAA that speaks at all
to this question states, “An award against the Navajo Nation shall
be limited to the amount of the underlying contract.” (§ 11 [3]).
________________________
About the Author: Lawrence A. Ruzow is a practicing attorney, author, teacher/trainer and consultant specializing in the affairs of the
Navajo Nation. He provides pro bono services to the Arizona Court
Forum and serves as a hearing officer and judge pro-tem for the Colorado River Indian Tribe. Mr. Ruzow has been honored numerous times
by the Navajo Nation for outstanding service.
Endnotes
Retired Navajo Supreme Court Associate Justice Raymond D.
Austin frowns on calling Navajo Peacemaking “alternative dispute
resolution,” taking the position that since Navajo Peacemaking has
its origins in Navajo practice pre-contact, it should be called “original dispute resolution.”
2
No Navajo trial judge is a State Bar member.
3
The term Navajo Nation is a defined term under the Navajo Nation Sovereign Immunity Act and generally includes “enterprises”
of the Navajo Nation and political subdivisions of the Navajo Nation.
4
That is, without Navajo Nation Council action to generally or
specifically authorize such a waiver of sovereign immunity.
1
Indian Law Section
15
Native American
Women’s Voices
The following interviews are part of a compilation of excerpts from a series of interviews of Native American women lawyers
and judges that were first published in the Winter 2002 Edition of the New Mexico Bar Journal. The interviews were conducted
by P. M. Dubhaigh-Ingrassia, April Land, Melanie Patten and Robert Cruz.
Judge Irene Toledo
Judge Irene Toledo is a district court judge of the
Navajo Nation. She started her legal education
in the American Indian Lawyer Training Program, and she is a member of the Navajo Nation Bar. She served as a tribal court advocate
working with DNA* Legal Services and the
Navajo Nation Department of Justice before her
appointment as a judge in 1989.
Q
: What did you do before and what influenced you to be a
judge?
Back in the 1970s, Native American lawyers felt there was a need
for training for native people to address their own situations in
tribal courts. A group of young lawyers across the United States
recognized that so they formed various programs and organizations. There was one in particular called the American Indian Lawyer Training Program. That is where I got started. I was going to
school in Lawrence, Kansas to be a surgical nurse. I came home one
summer and I was looking for a job when I found out about DNA
Legal Services. The program advertised to hire a tribal court advocate. Advocates were needed to talk for people and present their
cases to the court. I knew I could do that for the summer. I applied,
got hired, and from there I got interested in law. That group was
very “gung ho” and young. They had ideals and visions of what it
was they wanted to do to help make changes in Navajo culture and
society. Even though we were still traditional, there was also a need
to provide education and awareness to the people about western
concepts of law. DNA sent me to training sessions put on by the
American Indian Lawyer Training Program and that is how I got
grounding in those ideas. I thought, “I really like this. I really want
to do this.” I stayed with DNA and took the Navajo Nation Bar
examination. I did pretty well on my first one in 1979 but didn’t
pass. I took it again in 1980. I passed that time.
I did a lot of family law, guardianships, adoptions, divorces and
custody cases at DNA. I got very interested in family law. I saw
for myself how physical and sexual abuse have lasting effects and
can sometimes cause permanent damage to children because their
concerns weren’t being effectively addressed. We were only dealing
with the parents and either punishing them or removing their children. One of the things I found by handling those kinds of cases
and seeing the perspective of a child was that while a child may be
“DNA” is a Navajo language acronym for “Dinebeiina Nahiilna Be Agaditahe,”
which means “lawyers for the Navajo People.” A longer translation is, “the life
of the People (to it) belongs those people who can never lose an argument.”
“Agha’diit’aahee (another spelling) is translated, “someone who pushes out with
words.”
*
abused, long-time separation from parents and not trying to rehabilitate the parent really affects children. At the time, the thinking
of social services programs and the legal system was, “The parents
are bad so take the kids away.” I was aware of the Navajo concept
that it’s not the parents being bad people—it’s their behavior; and
that’s something you can change in a person.
Q
: How did you become a judge?
Chief Justice Tom Tso told us he was looking for people who could
help him make the judicial branch strong. He wanted some young,
healthy people who were ready to take on what was needed. Judge
Loretta Morris and I applied. We were confirmed in 1989 and appointed to the court at Window Rock, Arizona by the Navajo Nation
Tribal Council. Our lives changed overnight. After the swearing-in,
we were outside laughing with some people when Associate Justice Homer Bluehouse walked up to us and said, “Ladies, you don’t
laugh out loud, and you don’t be the way you are now. That’s not the
demeanor of a judge.” We had to change.
Q
: What do the Navajo traditions bring to the modern,
dominant culture?
When you work with people across the Navajo Reservation and
Navajo Indian Country, it’s amazing how the language, customs
and some of the behaviors vary. (When I say “Navajo Indian Country,” I’m including people that own their own land in an Indian allotment. There is a difference between trust reservation status and
allotments.) The Crownpoint Judicial District covers 31 chapters.
A lot of people who have never worked with the Navajo People
don’t know that. It would not be right to say that we’re all the same
just because we’re Navajos. You can tell by a person’s name where he
or she comes from, and that person’s community can be unique. As
a judge, I had to reeducate myself and my understandings of concepts of tradition because, although I became a judge after training
in western law, you’ve still got to speak Navajo fluently and know
the customs and traditions of Navajos.
Q
: Do custom and tradition influence the way you might look at
a young couple that wants to get a divorce?
Yes and no. It depends on how they were brought up and their
family background. It’s hard to describe traditional influences. It’s
everyday practices, and they are done unconsciously without really
thinking about it. It’s like breathing; you do it without thought. I
would not call the traditional concepts that were used to resolve
disputes “peacemaking.” But in order for people to have an idea
of what we’re discussing here, “peacemaking” is a good choice of
words. Traditionally, Navajos did not have courts. Whenever there
was a family dispute, families would get together from both sides.
Everybody would have a chance to talk about the given problem
and then do some counseling. That was done in a hogan, sitting
outside under a tree or at some neutral location. Families had an
opportunity to speak about the problem, have input to say what
they thought might be a way to resolve it or counsel their family
members about the right things to do.
Today as a Navajo judge, you may have an older couple come into
court when their kids or grandkids are in trouble. They don’t necessarily want you to punish them. They will tell you, in Navajo,
“Speak to him; speak to her for me—she’s not listening to me.
That’s why I have come to you for help.” They don’t say, “Throw him
in jail…” or “He’s violating the laws…” or “I want this. …” It’s not
like that. It’s a totally different approach. You see people coming in
fighting about land, their kid’s behavior, livestock and many other
things. There is no way they are going to resolve their dispute in
the way they are trying to approach it. Then you look at the way
an elderly couple approaches a problem— traditionally—and that
is where peacemaking comes in. Sometimes, when those kinds of
cases come in, the court will strongly suggest to parties, “The court’s
going to give you an opportunity to settle this in a non-adversarial
setting, to talk things out and see what you can do to try to resolve
your own problem. And if you can’t resolve it there, you can always
come back to the court, and at that time, yes, we’ll use the law.”
We don’t pick the peacemakers. The chapters, communities and
local governments pick their own peacemakers and submit their
names to the court. Peacemakers have their own association where
they do in-house training and planning. The McKinley County
state courts use our Crownpoint Peacemakers in some cases. There
is a good rapport between the state and tribal judges when they
cooperate while working on cases. Many Navajos migrate to Gallup and end up in state courts. Given language, cultural barriers
and other factors, sometimes state judges rely on our peacemakers
for help.
From my perspective, looking at people as individuals and seeing
that something is going on with them when they’ve done something
wrong, the question then is, “How are we going to help them? How
much are you going to be involved with them?” You know the people, especially if you’re from the community. You live among them,
and sometimes you see them when you go down to the store.
How do you treat them? How much are you going to be involved
in their case? When you take a child out of the home, do you continue to see if the family is doing anything? Or if you send someone to treatment, are you checking with the probation officer? That
may be a lot of work for a judge. But I find that when you take
a hands-on approach, showing people you care about them to let
them know they are valuable—that they are someone—then, you
can make changes and see positive results.
“DNA” is a Navajo language acronym for “Dinebeiina Nahiilna Be
Agaditahe,” which means “lawyers for the Navajo People.” A longer
translation is, “the life of the People (to it) belongs those people
who can never lose an argument.”“Agha’diit’aahee (another spelling)
is translated, “someone who pushes out with words.”
*
Professor Christine Zuni-Cruz
Professor Christine Zuni Cruz is a tenured member of the University of New Mexico School of
Law faculty. In 1993 she established the Southwest Indian Law Clinic, which provides students
with a hands-on opportunity to practice Indian
Law. In her research and teaching, Zuni Cruz,
a member of Isleta Pueblo, explores law and culture, including the impact of law on Indian families, the practice of Indian Law and lawyering
for native communities and the internal traditional and modern law
of indigenous peoples domestically and internationally. She currently
serves as an associate justice on the Isleta Appellate Court. Previously,
she was a tribal court judge with the Pueblo of Laguna, the Pueblo of
Taos. She also was presiding judge with the Isleta Court of Tax Appeals
and an appellate judge with the Southwest Intertribal Court of Appeals.
Zuni Cruz, the first pueblo woman to earn tenure as a law professor, is
editor-in-chief of the Tribal Law Journal, an on-line law journal dedicated to the internal law of indigenous peoples.
Q
: What influenced you to choose law education as your
career?
I did not plan on going to law school when I graduated from college. I was hoping to get a job in filmmaking, but I didn’t find too
many opportunities in Albuquerque. I started working on a uranium mine project out of Native American Studies at the University
of New Mexico. We were studying the effects of uranium mining
on Indian people. I saw that tribes had somehow gotten into leases
without prior knowledge of the detrimental impact of uranium
mining to their land and to the health of their people. I thought
they could benefit from having the legal expertise themselves when
they were considering such plans. I began to think that if Indians
were lawyers, maybe they could protect themselves better.
Q
: Are your students entering the profession with the same
objectives you had: environmental justice or promoting the
need to express the indigenous perspective on law? Have any
of your former students approached the legal profession the
way you have?
People go to law school for different reasons. So, no, not everybody
is interested in restricting their practice to the internal tribal community. Of course, the work that is available for young lawyers is
sometimes more readily available in the external community than
it is in the internal communities. There are students who are very
interested in the study of internal law, particularly in the development of internal law, so we have students who seek to get into
that area. As a practice, those students who become tribal judges
will be the ones who deal most directly with internal law. We have
students who end up representing tribes; therefore, they will have
some impact on the development of tribal law, if that is the work
that the tribe requests that they do. I hope that we see an increasing
number of students who have an interest in seeing that this aspect
of the law is taught.
Q
: You have been teaching traditional indigenous laws. How are
they useful in confronting forces that chip away at your idea
of determining for yourselves what will happen in your community. How can these laws stand up to the outside laws that
are being used to take over your future and your resources?
I felt a great need to teach a class on internal law of tribes because
it has, in fact, been a neglected area of scholarly or academic attention. And, having worked as a tribal court judge since my graduation from law school, I am acutely aware of the importance of internal law in the practice of law and in the present lives of indigenous
peoples within their own community. I have had a particular concern about the development of that law and where it is going, and
whether the law as we are developing it is promoting or eroding
the traditional and long-held social values and beliefs of indigenous
people.
I teach a class called Law of Indigenous Peoples, which includes consideration of the traditional laws that are part of the internal law of
indigenous people. I don’t teach traditional law and the things that
people might take that to mean. I teach students to be aware of the
fact that there is traditional law within the internal law of tribes
and to be aware of how to find it. [I teach] its use in the development of internal law for tribes.
There is a tremendous amount of wisdom in the traditional law,
the traditional teachings, the customs of indigenous people. They
need to be maintained and carefully considered in terms of the development of law within the community so that they do not get
displaced entirely by laws that have no connection to the people.
For instance, if people are developing a law for themselves around
environmental safety or regulation of the environment, the tribal
community needs to keep its sights on where their law and their
values about their environment come from and build on that law
to create their own law.
The State Bar of New Mexico would like to thank the contributors
to this special issue on Indian Law.
We would also like to thank the members of the Indian Law Section Board of Directors for
the many hours they spent in planning the issue and providing needed guidance.
Board of Directors
Indian Law Section
2004–2005
Germaine R. Chappelle
Steffani A. Cochran
Aaron C. Frankland
Robert Francis Gruenig
Levon B. Henry
Karl E. Johnson
Joan E. Kozon
Marte D. Lightstone
Rosemary L. Maestas-Swazo, 2005 Chair
Douglas R. Nash
Helen Bernadette Padilla
J. Pamela Ray, 2004 Chair
Lawrence Ruzow
Gloria Valencia-Weber
Cynthia A. Walsh
Tribal Liaison List for the State of New Mexico
Aging and Long-Term Services Department
Ray Espinoza, Director
Indian Area Agency on Aging
Toney Anaya Building, 2550 Cerrillos Road
Santa Fe, NM 87505
Tel: (505) 476-4749; Fax: (505) 827-7649
E-mail: [email protected]
Department of Public Safety
Greg E. Toya, Lieutenant, New Mexico State Police
PO Box 1628
Santa Fe, NM 87504-1628
Tel: (505) 827-9009
E-mail: [email protected] or
[email protected]
Children, Youth and Families Department
Roland Trujillo, Deputy Director, Child Enforcement
PO Box 5160 PERA Room 254
Santa Fe, NM 87502
Tel: (505) 827-2400
Department of Transportation
Tom Teegarden, Tribal Liaison, Planning Division
PO Box 1149
Santa Fe, NM, 87504-1149
Tel: (505) 827-5547; Fax: (505) 827-3229
Corrections Department
Tex Joey, Native American Advisor
PO Drawer 250
Grants, NM 87020
Tel: (505) 876-8300
Department of Finance and Administration
Secretary James Jimenez
Room 180, Bataan Building
Santa Fe, NM 8750
Tel: (505) 827-4985; Fax: (505) 827-4984
Department of Game and Fish
Bruce Thompson, Director
One Wildlife Way
Santa Fe, NM
Tel: (505) 476-8008
[email protected]
Department of Health
Wanda Yazzie, Tribal Health Liaison
1190 St. Francis South, Suite1302
Santa Fe, NM 87502
Tel: (505) 827-0548
Department of Labor
Conroy Chino, Secretary of Labor
Tiwa Building, 401 Broadway NE
Albuquerque, NM 87102
Tel: (505) 841-8405; Fax: (505) 841-8626
[email protected]
Janet Spivey, Environmental Bureau
PO Box 1149
Santa Fe, NM 87504-1149
Tel: (505) 827-0964; Fax: (505) 827-6862
Department of Veterans’ Services
Angie Vigil, Executive Administrative Assistant
PO Box 2324
Santa Fe, NM 87504-2324
Tel: (505) 827-6334
Economic Development Department
Jerry Sandoval
Joseph M. Montoya Building, 1100 St. Francis Drive
Santa Fe 87505-4147
Tel: (505) 827-0230; Fax (505) 827-0328
[email protected]
Energy, Minerals, and Natural Resources Department
Dave Simon, State Parks Director
Wendell Chino Building, 1220 South St. Francis Drive
Santa Fe, NM 87505
Tel: (505) 476-3357
Wrennee Reynolds, Administrative Assistant
Tel: (505) 476-3358;
[email protected]
Tribal Liaison List for the State of New Mexico
Environment Department
Derrith Watchman-Moore, Deputy Secretary
PO Box 26110
Santa Fe, NM 87502
Tel: (505) 827-2855
Anna Leyba, Administrative Assistant
Tel: (505) 827-2855
Gaming Control Board
Mo Chavez, Indian Gaming Representative
4900 Alameda Blvd, NE
Tel: (505) 841-9700
General Services Department
Larry Naranjo, Director, Information Systems Division
715 Alta Vista
Santa Fe, NM 87502
Tel: (505) 827-9800; Cell: (505) 780-0765
Human Services Department
Terrelene Gene, Tribal Liaison
2009 South Pacheco, Pollon Plaza
PO Box 2348
Santa Fe, NM 87504-2348
Tel: (505) 827-7751
Indian Affairs Department
Amber Carrillo, Public Information Officer
Wendell Chino Building, 1220 South St. Francis Drive
Santa Fe, NM 87505
Tel: (505) 476-1600; Fax: 476-1601
Office of the Attorney General
Steffani Cochran, Assistant Attorney General
Special Counsel on Indian Affairs
PO Box Drawer 1508
Santa Fe, NM 87504
Tel: (505) 827-6907
Office of the Secretary of State
Martin Aguilar, Native American Election Coordinator
State Capitol Annex, 325 Don Gaspar, Suite 300
Santa Fe, NM 87503
Tel: (505) 827-3600; Fax: (505) 827-8403
Office of the State Engineer
Myron Armijo, Tribal Liaison
Office of the State Engineer and Interstate
Stream Commission
PO Box 25102
Santa Fe NM 87504-5102
Tel: (505) 827-6102
Public Education Department
Penny Bird, Deputy Secretary, Indian Education
300 Don Gaspar
Santa Fe, NM 87501
Tel: (505) 827-5861
Regulation and Licensing Department
Charmaine Jackson-John, Public Information Officer
Toney Anaya Building, 2550 Cerrillos Road
Santa Fe, NM
Tel: (505) 476-4891; Cell: (505) 490-2118
Taxation and Revenue Department
Rebecca Salazar, Protest Officer
PO Box 630
Santa Fe, NM 87504-0630
Tel: (505) 827-0739
Tourism Department
Travis Suazo, Indian Tourism Director
2401 12th St. NW
Tel: (505) 724-3589
Workers’ Compensation Administration
Priscilla Valdez, Administrative Assistant
PO Box 27198
Albuquerque, NM 87125-7198
Tel: (505) 841-6091

Current Legal Issues Oct. 2005

Transcription

Similar documents

Gary L. Brandt, Faculty Northwest Indian College, [email protected]

Park Plaza.cdr

Create a Map - Lessons of Our Land

2013-14 Hoop Program flyer - Chandler

The Appalachian Indian Voice November, 2014

the membership brochure - the Cultural Council of Indian

Indian Hills 9th Annual Car Show

Occaneechi Band of the Saponi Nation

Sample photos and captions

The Child Begg The Child Begging Mafia in India