by Jami Custer, Cherokee Phoenix
TULSA, Okla. – On Oct. 14, as part of the National Congress of American Indians’ annual conference, NCAI leaders updated the public on its Tribal Supreme Court Project, which was established with the Native American Rights Fund to promote greater coordination and strategy on litigation that may affect the rights of all Indian tribes.
NARF attorney and project member Richard Guest spoke of cases having gone to the U.S. Supreme Court and issues that may end up there such as the Violence Against Women’s Act. He said the VAWA could go before the high court because of provisions related to tribal court jurisdiction over non-Indian perpetrators of domestic violence.
“That challenge is going to come up to the U.S. Supreme Court and we need to be prepared,” he said. “We need to seek more legislation like that from Congress that expands the authority for tribes where the harm is direct and immediate. So look to that project and look for more opportunities to insert in legislation provisions that expand tribal sovereignty.”
Regarding the recent “Baby Veronica” case, Guest said Indian Country “failed miserably” in regards to media and public relations. “The opposition always had an upper hand in the media,” he said. “Their story was on CNN. Their story was on NPR.”
Guest also said for the TSCP to operate successfully, Native leaders need to be more involved on all levels.
“We can’t just have you hand it off to us. We need you active at the local level, at the regional level and at the national level. And that’s going to be what changes the court ultimately,” he said. “It’s when we can start getting young Native lawyers to clerk at the U.S. Supreme Court, when we can start getting federal judges who are Native appointed to the federal bench, that’s when things are going to change. When we’re inside the rooms, not outside looking in. That’s when things are going to start to change for us.”
The project was established in 2001 in response to two U.S. Supreme Court opinions – Atkinson Trading Co. v. Shirley and Nevada v. Hicks – that negatively affected tribal sovereignty.
Atkinson v. Shirley stated that tribes lack the authority to tax non-Indian businesses located on their respective reservations. Nevada v. Hicks stated that tribal courts lack jurisdiction to hear cases brought by tribal citizens against non-Indians for harm done on trust lands.
According to the NARF website, “these opinions were devastating in that they struck crippling blows to tribal sovereignty and tribal jurisdiction – the most fundamental elements of continued tribal existence.”
After the opinions, tribal leaders established the TSCP to strengthen tribal advocacy before the U.S. Supreme Court by developing new litigation strategies and coordinating tribal legal resources and ultimately improve the win-loss record of Indian tribes.