Native American Sovereignty Enhancement Act of 2001: A Proposal

by
Jack D. Forbes
Professor, Native American Studies
University of California, Davis

 

Native tribes face many serious problems relating to their ability to exist as self-governing and viable governments. These proposals are designed to solve a number of existing issues with a single piece of legislation, one which will allow historic tribes to attain full self-determination and yet, at the same time, allow tribes to pool their powers together for certain judicial and other purposes, such as environmental protection, healthcare, and law enforcement, whenever desired.

I. Purposes:

The purposes of this legislation are:

a. to carry out the intent of the Snyder Act of 1924 and the Wheeler-Howard Act of 1934 that all American Indian tribes wherever found in the United States be accorded equal access to federal services and programs and that all American Indian individuals who are members of organized pueblos, bands, communities, tribes, or nations be accorded access to federal services and programs;

b. to apply the principles of tribal sovereignty and self-determination uniformly in all operations of government in recognition of the equality with the states granted to tribes by the Interstate Commerce Clause of the Constitution of the United States.

c. to give full faith and credit to all cases where states have recognized American Indian tribes within their own boundaries; and

d. to provide a mechanism to correct situations where historic tribes have been combined with different tribes or separated from divisions of their own tribe.

II. Definition:

For purposes of this legislation the term tribe shall stand for all organized indigenous entities including pueblos, bands, communities, or nations; and the term "indigenous" shall stand for American Indian, Native American, aboriginal, and all other terms referring to the pre-Columbian inhabitants of the American continent and their descendants.

III. The Use of Joint Powers Authority:

A. All indigenous tribes shall possess the authority to enter into joint powers agreements with other tribes or with states for the purpose of pooling inherent authority to accomplish a specific governmental purpose; such as the establishment of a joint legal system with appellate courts, the establishment of a joint law enforcement authority, the establishment of a joint education authority; the establishment of a joint health authority, and any other joint powers agency which will facilitate governmental operations;

B. Tribal joint powers agencies shall be governed by the same federal statutes and court decisions as apply to joint powers agencies existing between states; except where tribal sovereignty exceeds that of the states.

C. Tribal joint powers agencies may be established without the approval of any agency of the United States government or of any state government but funding or the committing of non-tribal resources may require external negotiation.

IV. Federal recognition of State-recognized Tribes

A. Any indigenous tribe which has been or is currently recognized as an indigenous tribe in any state of the United States shall henceforth be regarded as a federally-recognized tribe or community provided that the Governor of the state in which the tribe or community is principally located notifies the Secretary of the Interior that the said tribe has the status of an indigenous tribe recognized as such by one or more state agencies or provided that the tribe in question provides a communication to the said secretary as to which state agencies, such as the Legislature, or the State Department of Education, have so recognized the group and provides evidence which documents said recognition such as a copy of the legislation showing the establishment of a state commission on Indian affairs with membership accorded to the said group, or other appropriate evidence.

B. Any group recognized as above shall become eligible for federal services provided to tribes as tribes when evidence is submitted by the tribe to the Secretary of the Interior showing that the said tribe possesses a reservation of land recognized as such by the state in which it is located, and which shall become land held in trust with the United States, or that the tribe is the owner of ten or more acres of land which it intends shall be placed in trust status with the United States; and also that the tribe has a written constitution duly ratified by tribal members which is consistent with the Constitution of the United States and a tribal governing body elected by a vote of the said tribal membership according to open and democratic procedures;

C. the membership of each state-recognized tribe shall consist in all those persons who have been recognized in the past as members of the said tribe including all of their living descendants, said membership being documented by previously recorded membership lists, membership cards issued, or other documentary evidence of membership, supplemented where documentary evidence is lacking by the notarized statements of at least three documented members, for each individual claiming membership.

D. Because of the sovereignty implied in the recognition of an American Indian tribe by a state or by the United States the previous membership of the tribe is not subject to challenge by the Department of the Interior except as to the guarantee of continuing membership status for all past members as described above in C. and that federal recognition shall not result in a loss of membership for any prior members.

E. Those state-recognized tribes having a prior treaty with the United States or with a colonial predecessor of the United States shall have the same status as other treaty-making tribes and for this purpose all of the unratified treaties of California and Oregon shall be regarded in the same light as ratified treaties whenever the tribe or tribes in question were required to adhere to the treaty and whenever the treaty was negotiated by an official representative of the United States of America.

F. Any tribe which has been formally terminated for all or part of its federal relationship shall be restored to the full federal relationship provided that the provisions of sections A, B and C are met.

G. Any tribe which has been informally terminated for all or part of its federal relationship by oversight or neglect shall be restored to the

full federal relationship provided that the provisions of sections A, B and C are met.

V. Self-Determination for Historic Tribes

a. All tribes which have had a historical relationship with the United States government, with a state government or with any colonial predecessor government possess the inherent right to organize themselves in any manner consistent with the Constitution of the United States and with treaties ratified with the United States or with any state or colonial predecessor, and with unratified treaties if the provisions of such were enforced upon the tribe by the United States government;

b. the above right of organization includes the re-establishment of self-government in cases where two or more pueblos, bands, tribes or nations have become combined as one, provided that the two pueblos, bands, tribes or nations existed previously as separate, sovereign entities, or that the two or more pueblos, bands, tribes or nations are possessed of mutually distinct languages which are not dialects of the same language;

c. the said right of organization to include the re-establishment of a unified governmental structure, of either a confederated, federal, or unitary nature, for two or more communities, pueblos, bands, tribes or nations which formerly constituted a single nation but which have become separated due to historical circumstances;

d. the separation of two or more pueblos, bands, tribes or nations shall be initiated by a petition of the members of the combined tribe who would prefer to separate, said petition to be directed to the Secretary of the Interior; the Secretary of the Interior shall ask the government of the combined tribe to hold an election, provided that the petition contains the signatures of at least 25% of the group proposed for separation. If the combined tribe authorizes an election, separation shall be approved if two-thirds of the adult members of the proposed new group, voting and non-voting, are in favor or if more than 50% of both the separating and the remaining group's adults, voting and non-voting, are in favor, of separation. If the combined tribe refuses to hold an election, or fails to hold one during a period of twelve months from the date of the Secretary of Interior's request, the Secretary shall authorize an election among the proposed separating group members only, all elections to be held under the age and eligibility rules of the combined tribe;

e. under either procedure, a determination of those who are eligible to vote as a part of the proposed separating group shall be based upon self-selection except that if challenged, a voter must show evidence of appropriate tribal, village, pueblo, or band affiliation as determined by official enrollment records and provided that no person may choose to be both part of the proposed separating group and the proposed remainder group for voting purposes, however, any person may abstain from voting or registering;

f. When the Secretary of the Interior determines that the proposal for separation has succeeded, as above defined, then the said Secretary shall ask the members of the newly separated entity to draw up an interim or permanent tribal constitution and by-laws; to select an initial or interim governing board or council; and to determine if the group wishes to form a unified tribe or nation with a related group under the provisions of V (c) and V (h).

g. In the meantime, the Secretary of the Interior shall appoint a mediator to facilitate discussions over the division of assets between the separating and remaining groups of the previously combined tribe. Negotiations between the two entities must be based upon an equal division on a per capita basis of all assets and liabilities other than land; land in tribal ownership or federal trust shall always go with the affiliation of the individuals for whom it is held in trust or who hold a majority interest in the case of heirship lands or, if tribally-owned, shall be divided by negotiation and if that fails by arbitration, according to regulations to be established by the Secretary of the Interior.

h. When two or more tribes wish to merge to form a new consolidated tribe the proposal must be approved by a majority vote of each of all concerned tribal councils and by a majority of all adult voters in each tribe entitled to vote. The proposal must include principles for a new constitution but the precise manner of electing the new tribal council and drawing up a constitution shall be left to the tribal councils concerned, subject to the authority of the Secretary of the Interior to review and comment upon, but not to countermand, the decisions reached.

i. When two or more tribes wish to merge to form a new consolidated tribe their form of union may include a unified parliamentary body for the unified tribe along with the continuation of existing tribal councils to manage local affairs, or any other reasonable form of union not in conflict with the Constitution of the United States.

j. In a case of merger, as above, assets and liabilities of the combined tribes shall be consolidated, partially consolidated, or not consolidated according to the agreements reached by the merging parties, but all liabilities must continue in force and be met by the merging governments in some manner.

VI. Law Enforcement, Judiciary and Health

a. As an inherent aspect of sovereignty, all tribes shall have the right to maintain jurisdiction over law enforcement and over their own court system and to resume jurisdiction in the case of tribes affected by Public Law 280;

b. Any tribe may resume jurisdiction over law enforcement and establish its own judicial system provided that: (1) it possesses a landbase of at least four sections (2,560 acres) of trust land and allotments still in trust and a membership of 1,000 persons, and (2) submits a plan to the Secretary of the Interior outlining the precise manner in which law enforcement and judicial matters will be handled;

c. If a tribe possesses less than four sections (2,560 acres) of trust land including allotments still in trust and less than 1,000 members it must form a joint powers agency with other tribes in order to resume jurisdiction over law enforcement and judicial matters; the tribes forming the joint powers agency must together meet the above land and membership requirement except that if as many as four tribes are includedin the joint powers agency the latter requirement is waived;

d. The joint powers agency shall submit a plan to the Secretary of the Interior outlining the precise manner in which law enforcement and judicial matters will be handled, making specific reference to how law enforcement officers and courts will be shared by the several tribes creating the joint powers agency.

e. A tribe, or a group of tribes by means of a joint powers agency, may establish under this section a system of jails and prisons and may take over, by contract with the Department of Justice or with any state or county, the operation of federal, state, or county facilities, or parts thereof, for the purpose of developing special culturally-relevant programs of rehabilitation for Native American prisoners convicted of federal, state, or tribal violations, respectively;

f. To carry out the intent of section VI (e) above, the Department of Justice is authorized to turn over a federal prison, or a portion of a federal prison, by contract to a tribal or intertribal joint powers agency, as described in VI (e), provided that the latter agency proposes to operate the prison for the same or a lesser per-prisoner cost than can the Department of Justice, subject to a cost-of-living increase each year.

g. A tribe, or a group of tribes by means of a joint powers agency, may establish a system of health care facilities and may take over, by contract, the operation of federal, state, or county facilities, or parts thereof, for the purpose of operating culturally-relevant health and mental health programs.

h. To carry out the above, the Department of Health and Human Services is authorized to turn over federal facilities and federally-funded health- related research centers by contract to a tribal or intertribal joint powers agency.