Mr. Chairman, I am pleased today to be able to address the Senate Select Committee on Indian Affairs regarding property rights and civil rights in Indian country. I am limiting my comments and discussion of these rights in conjunction with the proposed legislation of Senator Gorton, S. 1691.
In my view, S. 1691 is bad law and should not be enacted. It should not be enacted for many reasons, but in the time allotted today, I can only touch on a few.
First, S. 1691 is premised on a false assumption. The proposed transfer of civil rights cases and all cases where a tribe is a defendant from tribal to state or federal court is premised on the false assumption that tribal courts are not capable of adjudicating and protecting civil rights, or rendering just and fair decisions when the tribe is a defendant. As Justice Pearson, retired Chief Justice of the Washington Supreme Court so aptly put it, "Anyone who would pass a law based on this belief simply has not done his or her homework."
Second, the proposed act constitutes invidious discrimination of the worst kind. If enacted, this law would put tribal governments in an utterly unique category: not only would the law reach into the tribes most valuable and needed asset, it's public funds, by allowing a foreign government to open the door to those funds, but it places adjudication of issues related to public funds in foreign forums, state and federal courts, and subjects those disputes to resolution under foreign law: state and federal law. Such an action is unprecedented. It singles out only tribal governments for such treatment. It is discrimination of the most destructive sort. Tribal Courts are where "the rubber meets the road" when it comes to the ability of a sovereign to regulate as a unique government, possessed of political integrity. The law of any society is the reflection of the composite of knowledge, memories, beliefs, mores and culture of the people who enact it. To remove issues that define civil fights, the most obvious area of the law where a society defines it perception of itself and its people, or cases involving the public treasury, subjects some of the most jealously guarded areas of tribal life and society to the views and interpretation of a foreign nation, people who do not have the same history, beliefs or cultures. This bill singles out only tribes as governments deserving of such treatment,
The best way to meet false assumptions or discrimination is with the facts. Although I have practiced in courts from South Dakota to Washington State, I have chosen to provide the Committee with background information regarding operation of the Colville Tribal Court, as well as with statements made by persons intimately familiar with the development of tribal courts across the country. As a licensed attorney in the States of Washington, North Dakota, and South Dakota, the First Vice President of the National American Indian Court Judges Association, President of the Northwest Tribal Court Judges Association, and the Chief Judge of the Colville Tribal Court, I have chosen to put the Colville Tribal Court under a microscope not because of its uniqueness in Indian country, but because I believe it is representative of tribal courts in the United States. In addition to being a member of three state bar associations in the states previously mentioned, I am also licensed to practice in, or have sat on the bench of thirty three tribes spanning half a continent. Accordingly, I have had the unique opportunity to see first-hand the operation of numerous courts across the country.
Attachments
Included in the attachments with this written testimony are letters containing opinions on the fairness and equity of tribal courts, received from numerous attorneys, all of whom regularly practice in tribal court. In addition, I have included letters received by the Colville Tribal Court describing the professional forum it presents, from the perspective of sitting judges of jurisdictions surrounding the reservation, the attorneys who present case after case in this forum, as well as from the State of Washington-Office of Child Support Enforcement who regularly try child support cases in the Colville Tribal Court.
I have also included in the attachments the Constitution of the Colville Confederated Tribes and the Policies and Procedures of the Court which sever the administrative operations of the Court from the Council. The Colville Civil Rights Act is also attached, along with both civil and criminal cases interpreting and applying that document as a living, viable statement of rights. In adopting these statues and constitutional amendments the Colville Business Council knew and intended that its actions be subject to judicial reviews. Under the law the Colville Reservation has restrained the Council or ordered the Council to pay damages or reinstate employees, The system developed on the Colville Indian Reservation represents a deep respect for legislative process and judicial review. The result is a system that ensures fairness for all and protects tribal sovereignty and rights.
A Comment From The United States Supreme Court
Let me start with the United States Supreme Court. According to the Honorable Sandra Day O'Connor, "today in the United States, we have three types of sovereign entities - the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country. The part played by the tribal courts is expanding .... The tribal courts, while relatively young, are developing in leaps and bounds.... The role of tribal courts continues to expand, and these courts have an increasingly important role to play in the administration of the laws of our nation."
Modem day Tribal Courts are the cornerstones of civil and property fights protection in
Indian Country. Their fairness and equity stand unquestioned by all who have completed
objective reviews of the courts of tribes since the early days of the Reagan and Bush
administrations in the 1980's. These reviews have been conducted by senior scholars and
magistrates from the leading courts in the United States. Whenever tribal courts have been the
subject of close scrutiny, they have not only survived the test of their detractors, but have been
applauded for the level of justice administered on reservations. Even investigations which began
with apparent hostile intent have ended by stressing the strengths of tribal courts and noting that
their weaknesses stem from the lack of funding and not pervasive bias (American Indian Law
Review, Volume 22, page 288).
And From the United States Attorney General
Attorney General Janet Reno has stated that "While the federal government has a significant responsibility for law enforcement in much of Indian country, tribal justice systems are ultimately the most appropriate institutions for maintaining order in tribal communities." She has gone on to say that, "With adequate resources and training, they (tribal courts) are the most capable of crime prevention and peace keeping. Fulfilling the federal government's trust responsibility to Indian nations means not only adequate federal law enforcement in Indian country, but enhancement of tribal justice systems as well." Attorney General Reno has also stated that "Tribal courts are essential mechanisms for resolving civil disputes that arise on the reservation or otherwise affect the interests of the tribe or its members."
Objective Review & Financial Support
Always looking to improve a tribal court system that is charged with protecting the civil rights of members and non-members under tribal law and applicable federal law the Colville Confederated Tribes commissioned an independent review by Retired Washington State Supreme Court Justice Vernon Pearson and the Office of the Administrator for the Courts for the state. The purpose of the study was to analyze the court's operations and functioning as a separate branch of government within the tribe. In 1991 the final report of Justice Pearson included the following statement:
"The Confederated Tribes have taken an important step in attaining credibility of its
tribal court decisions. While no evidence was found that the tribal council had. ever
tried to unduly influence court decisions, the constitutional recognition of the
judiciary as a c separate branch of government' is an outward manifestation that the
Confederated Tribes do have an independent judiciary."
In 1991, the Reagan-Bush Civil Rights Commission issued its final report following five (5) hearings held across the country on the enforcement of civil rights on reservations. The final report recommended no changes in federal law and rejected proposals to bring the tribal judiciary under the control of the federal courts. In its place, the Commission identified Congress as the greatest limitation on the efficiency of tribal courts, and reported that greater financial support should exist for the tribal court systems.
Financially, the Colville Tribal Court is funded by both the Department of the Interior, Bureau of Indian Affairs and the Colville Tribal Government. Combining all of these funding sources, the overall funding for the tribal court is generally less than one sixth of that received by courts in the surrounding jurisdictions. Based on this disparity in resources, a transfer of cases from the Colville Tribal Court to that of state and county courts, as required by the proposed legislation of Senator Gorton, would require significant budget increases for these state and county courts. At the federal level, a transfer of the same case load from the Colville Tribal Court, the federal court would require a budget increase far beyond that of even the state court system. During fiscal year 1997, the Colville Tribal Court heard 3,441 cases with a total court budget of approximately $290,000. This calculates to an average cost per case of $85 in tribal court. In contrast, the Okanogan County Superior Court, with a budget of $517,401, heard 996 cases, resulting in an average cost per case of $519. In that same time period, the federal district court for Eastern Washington heard 967 cases with a budget of $1,978,397, at an average cost of $2,045 per case. In addition to the higher levels of funding, the county superior courts have access to a legal infrastructure maintained by the State of Washington Office of the Administrator of the Courts, that is not available to the Colville Confederated Tribes.
A sample of 520 civil cases randomly selected at the Colville Tribal Court produced the following results:
History of the Tribal Courts on the Colville Reservation
The Colville Tribal Courts (including administration, trial, and appellate divisions) were organized under tribal statutes in 1952. In 1991 Amendment X to the Constitution of the Confederated Tribes established the judiciary as a "separate branch of government" (See Exhibit 1, Colville Confederate Tribes Organizational Chart). Jurisdiction and the qualifications of the judges are prescribed by tribal statute, with the constitutional provision creating a tribal and appellate system providing the term for judges and their compensation, the procedure to fill vacancies, and for removal and discipline of judges.
Currently, the courts handle a broad range of financial, civil, administrative, and child welfare
cases applying and interpreting tribal statutory and customary law, as well as federal and state law. In
addition to clerks and judges, the justice system includes three licensed attorneys in the tribal
prosecutor's office, two licensed attorneys in the public defenders office, a list of court appointed
attorneys, all of who are licensed attorneys, a probation office with six probation officers, and a legal
services office with three attorneys and two paralegal's. All criminal defendants are afforded
representation through court appointed attorneys, as are all parties on n-dnor in need of care cases.
It should not escape notice that the Colville Tribe has provided greater legal protection then mandated by federal law. The Colville Tribe provides for a legal services program to provide assistance to members in civil matters. That program is often in court or representing members against the Tribes. Moreover, while the Indian Civil Rights Act provides that a criminal defendant may be assisted by counsel at his or her own expense, the Colville Tribe has funded an independent public defender program, who represents criminals defense at the Tribe's expense.
Encompassing over 1,300,000 acres, the Colville Reservation includes significant portions of
the towns of Omak and Grand Coulee. Regular travel on and off the reservation is common for both
Indian and non-Indian living in these communities. As such, cases coming before the Colville Tribal
Court involving non-Indians are common, I estimate at 1/3 the total case load. in many instances the
tribal court is called upon to enforce orders and decrees of state courts, and must issue for litigants,
judgements and decrees that can be recognized in state and federal court. Therefore, to appropriately
exercise tribal sovereignty, the court system must have judges who are adequately trained to decide
complex and important legal issues, and they must operate in such a manner that the orders,
judgements, and decrees issued will be credible and enforced by other courts. For the past fifteen
years the Colville Tribal Court has had on staff two full-time, law trained judges with the appropriate
experience to hear complex cases involving jurisdictional issues. These judges have been licensed
attorneys with extensive experience in private practice, as well as experience before the state and
federal bench. It is not unusual for the judges of the Colville Tribal Court to be called upon to sit as
pro tem judges for the courts of other tribes and state and local communities surrounding the
reservation. In additional, the Colville Tribal Court also keeps on staff a magistrate who handles
more routine matters such as criminal arraignments.
Credibility & Partnerships
A measure of the credibility of the tribal court of the Colville Confederated Tribes has been
shown to be its ability to decide cases freely and without pressure or influence from the legislative
branch of the tribe. Also of credit to the tribal court is the vigor in which it grants due process of law
that is afforded under the Indian Civil Rights Act. To further insure and protect personal civil rights,
the tribe has passed its own Colville Tribal Civil Rights Act, Colville Tribal Code 1.5. The Act is
frequently litigated, with both member and non-members recovering against the Tribes consistent
with its terms and with regular application as a living and viable set of rights afforded to all members
of the reservation community. See attachment VI, Colville Tribal Civil Rights Act and cases
applying and interpreting that Act. Note that in several cases, as noted by the former law trained
public defender whose letter is attached, the tribal court, in applying the unique culture, traditions and
history has applied a more strict standard to the Tribes in prosecuting tribal members. ( i.e., high
expectation of privacy must be expected when camps are searched since the history and culture
establishes that persons who living in this community frequently maintain campsites as a home.)
Solution Not Destruction
Testimony to the Committee would be incomplete without a discussion of solutions that would have long-term positive impacts on the administration of justice in Indian Country for Indians and non-Indians alike. In contrast to the efforts of Senator Gorton in S. 1691 to fix a problem that does not exist, there are areas of tribal court operations that could be positively assisted.
Solution #1: As is typical for Indian programs as a whole, tribal courts are sorely underfunded. A brief comparison detailed earlier in this testimony shows that the Colville Tribal court receives less than one-sixth (1/6) the funding of the closest state-funded superior court. The funding gap becomes even wider in a comparison with the federal district court, which receives over 24 times the funding per case than does the Colville Tribal Court. These facts must be viewed in light of the fact that tribal courts exercise far broader jurisdictional authority than either federal or state courts. Placed in this context, the compelling need for adequate funding for any court system is essential to its ability to provide judicial services to the citizens of its community.
Solution #2: With the coordination of the National Center for State Courts, state, federal and
tribal judges and experts from throughout the nation worked for several years to formulate a series of
recommendations designed to enhance justice in Indian country through the On Common Ground
work group. These recommendations include Congressional action to repeal the sentencing
limitations in tribal court contained in the Indian Civil Rights Act, repeal of the criminal jurisdictional
restraints contained in the Oliphant decision, and the extension of full territorial jurisdiction to tribes
and tribal courts. These recommendations will be supplemented into this record.
Solutions #3 & 4. With the growth of tribal courts, as they take their legitimate place as
recognized forums for dispute resolution, and with the growth of tribes as governing bodies that
interact more and more with the surrounding communities, leading scholars have begun to reexamine
the ancient rulings of the Supreme Court which define federal plenary authority over tribes. More
and more frequently, scholars and practitioners alike are propounding various methods to limit federal
plenary authority over tribes by harmonizing that power with the federal trust responsibility the
United States has towards tribes. I welcome and support this body, the United States Senate, in any
effort to address tribal courts, and urge you to begin a national dialogue which addresses such
solutions. (See attachment VIII, #3 & #4.)
Conclusion
The Colville Tribal Court is only one of over 350 tribal courts in the United States. By examining this court's operations and caseload while viewing it as one of 350+ tribal courts, and by gaining an understanding of the current tribal court functions, the impact on state and federal courts of the redistribution of tribal court workloads and the impact on the development of property and civil rights such an intrusion presented by S. 1691 becomes clear. Hopefully, as I conclude my testimony, Committee members will have a more thorough knowledge of tribal courts and the equitable forum they represent in Indian country. It is also my sincere hope that members of the Committee as well as Congress as a whole will see the superficial nature of arguments supporting passage of S. 1691, as well as the misinformation contained therein.
Once again, thank you for this opportunity to present my personal views. I will gladly address any questions of the Committee.