Third Part of Billings Gazette Special Report on Tribal Sovereignty

From the Billings Gazette:

Despite court rulings that slice away at tribal sovereignty, Indian law specialist Tom Fredericks of Boulder, Colo., believes “tribal governments are stronger than ever.”

They have to be. Retreating federal budgets place ever more burden on Indian governments to provide basic services.

The Bureau of Indian Affairs for years has been turning more federal responsibilities over to the tribes, contracting with them to provide services such as law enforcement, education and social services on the reservations.

“I would think the BIA is less intrusive than it was 40 years ago,” said Reed Peyton Chambers, a Washington, D.C., attorney who represents the Fort Peck Tribes. “I think there is a lot more deference to elected tribal officials, less paternalism.”

Tribes have to be ready for the added responsibility.

“They need to develop constitutions that can deal with these kinds of problems,” Fredericks said. “They need separation of powers. They really have to have a good court system with a judiciary independent enough to make good decisions for the people.”

Many have done that, including the Crow Tribe, which adopted a new constitution in 2001.

The Crow Tribal Court claims criminal and civil jurisdiction over Indians on the Crow Reservation, and over non-Indians where not prohibited by the courts or Congress.

Most felonies committed on the reservation are turned over to the U.S. Attorney’s Office for prosecution. The tribe can impose punishments of up to a year in jail and a $5,000 fine, said Mike Eakin, an attorney for Montana Legal Services in Billings who often works in the tribal court system.

Crow tribal officers can’t arrest non-Indians on the reservation or take them to the tribal jail. They can, however, hold a non-Indian suspect until the county sheriff, Highway Patrol or BIA officer arrives, Chief Tribal Judge Angela Russell said. BIA officers have authority to arrest non-Indians under federal law, she said. Those cases would be handled by federal prosecutors, not the tribe, Russell explained.

Non-Indians on tribal lands (not including areas such as highways, where a federal right of way has been granted) may find themselves subject to the tribe’s civil regulatory authority, she said. Traffic violations, for instance, could bring a civil penalty from the tribal court.

Non-Indians appear most often in tribal court for child custody cases. When an Indian child has significant contact with the reservation, jurisdiction usually rests with tribal court, Eakin said. If the child has lived off reservation and has few ties to it, state courts probably have jurisdiction, he said. State and tribal courts generally honor each other’s custody orders.

Russell said tribal courts also deal with non-Indians in child support enforcement cases and can issue orders of protection under federal laws designed to prevent violence against women. Orders of protection, no matter where they are issued, can be enforced by tribal court, she noted.

“It’s a matter of law,” the judge said. “If we have someone who applies for a protection order, we bring everybody in. We let everyone have their say. We follow through on everybody.”

Tribal members can sue non-Indians and vice versa in tribal court, and “if we find we have jurisdiction over the parties, we proceed,” Russell said.

Tribal courts usually have the first opportunity to determine their own jurisdiction, and in some cases litigants are required to exhaust all tribal remedies, up to the tribal supreme court, before taking their cases to a federal district court. But within the past 10 years, U.S. Supreme Court decisions have allowed non-Indian defendants, under some circumstances, to challenge tribal court jurisdiction as soon as a tribal court accepts the case.

Non-Indian entities can often be found in tribal court trying to collect bad debts. Banking and credit companies must seek a tribal judge’s help in seizing collateral an Indian has used to secure a loan on the reservation.

Tribal members can sue non-Indian entities operating on the reservation, but in very narrow circumstances. There has to be a clear consensual relationship between the entity and the tribal member or there has to be a threat to the safety, health and welfare and political integrity of the tribe. Federal courts have found few, if any, circumstances that meet those tests.

Russell said non-Indians sometimes use tribal courts for a less-contentious reason.

“I have performed marriages for non-Indians,” she said.