Published April 25, 2016
After Judge Alexander passed a “random” drug test (for the second time this year), she was fired while finishing an opinion to compel an election that a Nooksack Tribal Council faction has simply refused to call—she was terminated “at a critical juncture” in the case, as she put it.
The Tribal Council faction decided to “take a different direction” with the Court, and are now going to replace Judge Alexander if they can “find a right fit with a judge.” There’s no need to decipher these cryptic words.
Tribal courts are already met with a great deal of skepticism. Consider Justice David Souter’s dissent in Nevada v. Hicks, whereby the U.S. Supreme Court took a sledgehammer to tribal court authority:
Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts “mirror American courts” and “are guided by written codes, rules, procedures, and guidelines,” tribal law is still frequently unwritten…and is often “handed down orally or by example from one generation to another.” The resulting law applicable in tribal courts is a complex “mix of tribal codes and federal, state, and traditional law,” which would be unusually difficult for an outsider to sort out.
Dollar General’s pending assault on tribal courts parrots these words (describing itself as a “stranger” to tribal court jurisdiction, which should not be bound to the rules in an “unfamiliar court.”) Former U.S. Attorney Brendan Johnson puts it more plain:
These same arguments were advanced by Republicans in Congress who opposed the limited Oliphant-fix that is the Violence Against Women Reauthorization Act of 2013. Indeed, to assuage concerns about the integrity of tribal judicial systems, Indian Country was forced to accept federal court de novoreview of tribal court convictions of non-Indian wife beaters.
A few weeks ago Senators Jon Tester (D-Mont.) and Al Franken (D-Minn.) introduced the Tribal Youth and Community Protection Act of 2016. According to Bryan Newland, the bill would
[E]xpand tribal criminal jurisdiction over non-Indians for drug related crimes, domestic violence against children, and crimes committed against tribal law enforcement officers. The proposed bill comes on the heels of the reauthorization of the Violence Against Women Act, which allows Indian tribes to prosecute non-Indians in certain instances.
As this bill would further restore tribal court inherent criminal jurisdiction, it too will surely face skepticism from the likes of House Republicans and Dollar General. Such critics will wield national legal headlines like “Nooksack Tribal Council Fired Judge, Chairman Confirms,” to make their case against tribal courts.
So if you are or have been an advocate for the Violence Against Women Reauthorization Act or Tribal Youth and Community Protection Act, or for a full Oliphant-fix, or for tribal justice systems in the face of assaults from the likes of Dollar General, or, more generally, for Native Nation and tribal capacity building, pause to reflect on what is happening at Nooksack.
Pause to reflect on how the insurrection at Nooksack impacts the issues you care about; how it affects all Indian governments and court systems; how it makes us all look.
(Likewise, if you advocate that “Native Lives Matter” when police take an Indian life, that the epidemic of Indian youth suicide requires more attention, or that mascots destroy tribal identity, pause to reflect on tribal destruction of Indian life and identity via disenrollment.)
You see, we can’t have it both ways. We can’t expect credence from the Congress or federal courts when we advocate for what is just and right for Indian people and tribal courts, while we simultaneously turn a deaf ear to what is so unjust and wrong in Indian Country.
Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with offices in Seattle and Yakima, Washington and Bend, Oregon. He descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.
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