“The ability to impact society through well-written legislation is unparalleled.”[1] The ability of tribal governments to articulate what their people believe and protect and preserve the tribe’s culture is paramount to its very existence.[2] Tribal practitioners are tasked with making sense of the vastly different eras of federal law and policy surrounding Indian tribes and understanding the tribe’s traditional, cultural and spiritual values, while artfully selecting words to shape their current society and preserve its existence for the seven generations to come. The tribal practitioner must “bridge the gap.”

BRIDGING THE GAP

What Does it Mean to “Bridge the Gap”?

Bridging the gap means the tribal practitioner must critically analyze the four sources of authority that determine the extent of an Indian tribe’s powers and the limitations imposed upon said powers. The four sources of authority are inherent authority, constitutional authority, congressional authority and judicial authority. The tribal practitioner should spend most of their time analyzing the situation that is the subject of the requested legislation, its problems and solutions, while focusing on the tribe’s traditional, cultural and spiritual values that must be incorporated into the legislation. Once the tribal practitioner understands the mission or purpose behind drafting the legislation, they must bridge the gaps between the legislation’s mission or purpose and the four sources of authority. The following sections discuss the “gaps” (each of the four sources of authority), the “tools” needed to bridge the gaps and the instructions on how to bridge the gaps.

The Four Sources of Authority

Inherent authority. Inherent authority can be described in two concepts. The first is related to the phrase “since time immemorial,” which appears in many cases, laws, articles and other sources. Since time immemorial is “used by Indigenous Peoples to describe the temporal depth of their connections with ancestral lands.”[3] It means “indefinite in the time of history.”[4] Since time immemorial, Indian tribes have existed and maintained their continuity through thousands of years of oral traditions passed down to the next generations. Since time immemorial means that before Europeans came to North America, Indian tribes were forming “complex social, political, economic, and cultural systems.”[5]

The second concept of inherent authority is related to the phrase “bedrock principles.” Legal authors and officials began articulating the basic powers of Indian tribes after the enactment of the Indian Reorganization Act of 1934 (IRA).[6] In 1978, the Supreme Court adopted these bedrock principles.[7] The bedrock principles include the following powers:

1. The power to adopt a form of government, to create various offices and to prescribe the duties thereof ...
2. To define the conditions of membership within the tribe ...
3. To regulate the domestic relations of its members ...
4. To prescribe rules of inheritance ...
5. To levy dues, fees, or taxes upon the members of the tribe and upon nonmembers residing or doing any business of any sort within the reservation ...
6. To remove or to exclude from the limits of the reservation nonmembers of the tribe ... and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions under which nonmembers of the tribe may come upon tribal land or have dealings with tribal members ...
7. To regulate the use and disposition of all property within the jurisdiction of the tribe and to make public expenditures for the benefit of the tribe out of tribal funds ...
8. To administer justice with respect to all disputes and offenses of or among the members of the tribe ...[8]

The tribal practitioner must understand that the bedrock principles do not capture all the powers tribes have retained since time immemorial. The tribal practitioner should be developing legislation that systematically integrates both concepts of inherent authority by artfully drafting language that ties in the bedrock principles while not limiting an Indian tribe’s inherent authority derived from time immemorial.

Constitutional authority. When determining what constitutional authority an Indian tribe has, the tribal practitioner must look at the Constitution of the United States (the Constitution) and the Indian tribe’s constitution. This section will discuss a brief history of the Constitution, treaties and tribal constitutions, as well as the power granted to Indian tribes and the limitations upon said powers that are produced in the two constitutions. This section will also discuss how these constitutions collectively and separately affect tribal code drafting.

The Constitution is considered the supreme law of the land and defines the relationship between the people and the government, the government and Indian nations and the rights of citizens. The Constitution only mentions Indians three times.[9] The first reference is to Congress’ ability to regulate commerce with Indian tribes.[10] The last two references discuss the exclusion of “Indians not taxed” from the counts of apportioning direct taxes and representatives to Congress among the states.[11] It is also important to note that the Constitution fails to adequately protect the collective and individual rights of Indians by not addressing the traditional, cultural and spiritual practices of Indians and their tribal nations.

Additionally, the Constitution gives the president “[the] power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”[12] The treaties signed between Indian tribes and the federal government are considered binding agreements between nations and, like the Constitution, are considered the supreme law of the land.[13] Treaties “were signed across significantly different periods of history with incredibly divergent views of what Indigenous nations were.”[14] As a result, the treaties executed were often times just as much determinantal as they were beneficial.

The Indian Reorganization Act (IRA) and the Oklahoma Indian Welfare Act (OIWA) enabled Oklahoma Indian tribes to rebuild their governments by “incentiviz[ing] tribes to adopt U.S.-style governments and constitutions.”[15] “Tribes felt pressured to accept the IRA [and the OIWA] just as they had felt pressured to accept previous government policies.”[16] The templates prepared in accordance with the IRA and OIWA contained boilerplate language that “showed little sensitivity to the diversity of Native life and attempted to impose a one-size-fits-all solution to Indian problems.”[17] As a result, many Indian tribes have constitutions that simply mirror the Western legal system and, in turn, do not protect their rights to govern in accordance with their traditional, cultural and spiritual values. Additionally, these boilerplate tribal constitutions may subject Indian tribes to other sources of authority that may be detrimental, such as state constitutions.

Developing an understanding of the history of the Constitution, treaties and IRA tribal constitutions is critical to drafting tribal codes. By examining the Constitution, treaties and IRA tribal constitutions, the tribal practitioner is clearly defining the structure that gives the legislation life. Examining these sources prevents the tribal practitioner from drafting legislation that creates a detrimental conflict between federal and tribal governments.

Congressional authority. Tribes are subject to the plenary power of Congress. Plenary power means that Congress can limit, modify or eliminate any powers that tribes possess.[18] For the purposes of this article, an example of congressional authority limiting a tribe’s inherent authority is the environmental laws passed by Congress. It is the intent of Congress and the U.S. Environmental Protection Agency (EPA) that all state, local and tribal governments participate in managing human health and environmental risks.[19] However, there are many restraints within environmental laws that tribes must be aware of. For example, Congress has specifically included the notorious “treatment as a state” (TAS) language in certain statutes.[20] TAS language authorizes the EPA “to treat eligible federally recognized Indian tribes in a similar manner as a state for implementing and managing certain environmental programs.”[21] Other statutory provisions state that tribes shall be given “substantially” the same treatment as a state.[22] “The EPA has interpreted this to allow tribes to enter into cooperative agreements and receive financial assistance.”[23] Some statutory provisions are silent on the role of tribes.[24] The EPA has interpreted this silence to authorize tribal participation.[25] Due to the absence and/or lack of clear federal legislation, states and Indian tribes have competed for control. It is important that the tribal practitioner understands that an effective piece of tribal legislation accounts for the limitations imposed by Congress and the competing interests of the state.

Judicial authority. Two important bodies of judicial law that define the status of Indians and Indian tribes within our federal system are the laws surrounding a tribe’s criminal and civil authority. The criminal string of cases states that federal and tribal governments have the authority to prosecute violent crimes by or against Native Americans that happen on tribal lands,[26] and tribal governments have the authority to prosecute all other nonmajor crimes or crimes not falling under the Assimilative Crimes Act.[27] The criminal string of cases also makes clear that the state has the authority to prosecute crimes by non-Indians against non-Indians.[28] An anomaly in the string of criminal cases is the Supreme Court’s most recent ruling in Castro-Huerta, which held that “state governments have the authority to prosecute certain cases on tribal lands.”[29] When drafting criminal legislation, the tribal practitioner prioritizes the need to embody in their written laws the appropriate criminal sanctions to assure the tribe’s members are protected from the many dangers they face in contemporary tribal life.[30] The tribal practitioner must also take into consideration that while the federal government has jurisdiction to enforce federal and sometimes state laws, a tribe may not assume that “the existence of law always means that those laws will be enforced by the federal government.”[31]

With respect to civil authority, the Montana string of cases generally captures the limitations on a tribe’s ability to regulate members and nonmembers. A tribe can exercise regulatory and adjudicatory jurisdiction over members.[32] A tribe must meet one of two exceptions to exercise regulatory and adjudicatory jurisdiction over nonmembers, at least where the activities at issue occur on nonmember-owned fee land.[33] The two exceptions are: 1) A tribe may regulate when nonmembers enter consensual relationships with the tribe or its members through contracts, commercial dealings, leases or other arrangements, and 2) the nonmember’s conduct “threatens or has some direct effect on the tribe’s well-being, including the political integrity, the economic security, or the health or welfare of the tribe.”[34]  When drafting civil legislation, a tribal practitioner should understand that there is limited case law surrounding the second exception. Therefore, it is vital to incorporate language into legislation that establishes the consensual relationship between the nonmember and the tribe or its members, in addition to examples of how the nonmember’s conduct threatens the tribe’s well-being.

Tools Needed to Bridge the Gaps

This section briefly addresses the tools needed to bridge the gaps discussed above. As with any legislation, the contents will be challenged, and the courts will render decisions on the meaning of the statutes. Judges have competing views on how to interpret the law. The two main theories of statutory interpretation are purposivism and textualism.[35] “Purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, [and] textualists maintain that judges should primarily confine their focus to the statute’s text.”[36] Regardless of the theory applied, courts are likely to face interpretive difficulties and apply a statute in ways the legislative branch may not have anticipated or intended. Therefore, it is important that tribal practitioners use the tools judges use to gather evidence of statutory meaning when drafting legislation. “A judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.”[37] It is recommended that the tribal practitioner use the following tools: text, structure, legislative history, purpose, policy and the Indian law canons of construction. The tribal practitioner should read Statutory Interpretation: Theories, Tools, and Trends and Textualism and the Indian Canons of Statutory Construction for a further explanation of the tools discussed herein.

How to Bridge the Gap Between the Four Sources of Authority

The first step to bridging the gap between the four sources of authority is to analyze the situation that prompted legislation, its problems and its solutions while determining the tribe’s traditional, cultural and spiritual values that must be incorporated into the legislation.

The second step requires the tribal practitioner to determine what inherent powers the tribe will be utilizing to assert its jurisdiction. The tribal practitioner should also understand which key bedrock principles it plans to use and incorporate such language into the text of the legislation.

The third step is to examine the Constitution and the individual tribe’s constitution to determine the power given to Indian tribes and the limitations imposed upon such powers. By examining these two constitutions, the tribal practitioner is clearly defining the framework upon which it may be built. Examining the two constitutions prevents the tribal practitioner from passing bad, unethical, unpopular laws that are against the tribal and federal governments’ values. When examining the two constitutions, tribal practitioners are encouraged to consider the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). If the tribe’s constitution does not include the rights of Indigenous people to enjoy their cultures, customs, religions and rights to pursue economic, social and cultural development, then the tribal practitioner should advocate for the adoption of the tribe’s version of the UNDRIP or consider implementing aspects of the UNDRIP into the tribe’s constitution. If it is not feasible for the tribe to adopt its own UNDRIP or implement aspects of the UNDRIP into the tribal constitution, then the tribal practitioner should consider ways to implement the language of the UNDRIP into its laws.

The fourth step is to determine what federal legislation, if any, limits the powers of Indian tribes. The tribal practitioner should clearly identify the absence and/or lack of clear federal legislation and the areas in which the state is competing for control. A clear understanding of this balance allows the tribal practitioner to draft language that accounts for any limitations imposed by Congress and eliminates any competing state interests.

The fifth step is to determine what judicial body of law may limit the tribe’s ability to exercise its jurisdiction. When drafting criminal legislation, the tribal practitioner should implement criminal sanctions that assure that its members are adequately protected. This may include traditional and ceremonial forms of restorative justice. Many tribal nations have developed peacemakers courts to achieve traditional restorative justice. The tribal practitioner should also consider alternative options for if the federal government chooses not to enforce its laws. When drafting civil legislation, the tribal practitioner should incorporate language that clearly defines when a consensual relationship is established between the nonmember and the tribe or one of its members. This is imperative as the inclusion of the language links a tribe’s inherent authority to regulate the conduct of nonmembers within its reservation to the established judicial authority.

The sixth step requires the tribal practitioner to utilize the tools of statutory construction to effectively draft language that remedies the situation the tribe is confronted with while balancing the competing interests of the four sources of authority.

CONCLUSION

To protect and preserve the tribe’s culture, tribal practitioners must bridge the gaps between the legislation’s mission or purpose and the four sources of authority. To bridge the gaps, tribal practitioners must spend ample time learning and understanding what the tribe is trying to accomplish and then develop that mission within the bounds of the four sources of authority.

Author’s Note: This article is written in my individual capacity and is not to be construed as the opinion of the Choctaw Nation of Oklahoma.

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ABOUT THE AUTHOR

Chloe M. Moyer is from Idabel and a proud citizen of the Choctaw Nation of Oklahoma. She received her Bachelor of Business Administration (accounting) from Northeastern State University in 2018 and her J.D. from the OCU School of Law in 2021. She currently serves as a government attorney for the Choctaw Nation of Oklahoma. Ms. Moyer is also a proud board member of the Chahta Foundation and enjoys serving her Native community.

 

 

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ENDNOTES

[1] “A Beginner’s Guide to Legislative Drafting,” Harvard L. Sch. J. on Legis., (Oct. 24, 2016), https://bit.ly/42TYpAU.

[2] See Gregory Bigler, “Traditional Jurisprudence and Protection of Our Society: A Jurisgenerative Tail,” (March 14, 2018). Am. Indian L. Rev., 43 Am. Indian L. Rev. 1 (2018). Available at SSRN: https://ssrn.com/abstract=3137355.

[3] John Douglas Belshaw, Sarah Nickel and Dr. Chelsea Horton, Histories of Indigenous Peoples and Canada, Thompson Rivers University, https://bit.ly/4bPhLeC (last visited Jan. 15, 2024).

[4] Id.

[5] Zach Parrot, “Indigenous Peoples in Canada,” The Canadian Encyclopedia, https://bit.ly/49P92Hr (last edited Nov. 28, 2023).

[6] See Chloe Moyer, “An Oklahoma Tribal Employer’s Guide to Conducting Business in the Tenth Circuit,” Okla. City Univ. Sch. of L. 215, 224 (May 2021); Kaighn Smith Jr., Labor and Employment Law in Indian Country at 23-24 (Richard Guest et al. eds., 2011).

[7] See id.; Smith, supra note 6, at 25 (discussing United States v. Wheeler, 435 U.S. 313 (1978)).

[8] Smith, supra note 6, at 24 (citing Powers of Indian Tribes, 55 Interior Dec. I4, 65-66 (1934)).

[9] Carole E. Goldbergambrose, “American Indians And The Constitution,” (available at https://bit.ly/3SUaAt1) (1986).

[10] U.S. Const. art I, §8, cl. 3.

[11] U.S. Const. art I, §2, cl. 3; id. amend. XIV, §2.

[12] U.S. Const. art II, §2, cl. 2.

[13] “About Treaties,” United States Senate, https://bit.ly/42S97aW, (last visited Jan. 15, 2024).

[14] See Chloe Moyer, “An Oklahoma Tribal Employer’s Guide to Conducting Business in the Tenth Circuit,” Okla. City Univ. Sch. of L. 215, 224 (May 2021); See generally Cohen’s Handbook of Federal Indian Law (Nell Jessup Newton ed., 2012).

[15] “Native American Ownership and Governance of Natural Resources,” Natural Resources Revenue Data, https://bit.ly/3wwqsdy (last visited Jan. 15, 2024).

[16] Id.

[17] Goldbergambrose, supra note 9.

[18] See Chloe Moyer, “An Oklahoma Tribal Employer’s Guide to Conducting Business in the Tenth Circuit,” Okla. City Univ. Sch. of L. 215, 224 (May 2021); Kaighn Smith Jr., Labor and Employment Law in Indian Country at 25 (Richard Guest et al. eds., 2011) (citing United States v. Wheeler, 435 U.S. 313 (1978)).

[19] Id.

[20] “Tribes Approved for Treatment as a State (TAS),” Environmental Protection Agency, https://bit.ly/3wsJjpL (last visited Jan. 15, 2024).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Arvo Q. Mikkanen, “Indian Country Criminal Jurisdictional Chart” (December 2010 version), https://bit.ly/3TgC3oL.

[27] See id.

[28] Id.

[29] Graham Lee Brewer, “The Supreme Court gave states more power over tribal land. Tribes say that undermines their autonomy.” NBC News (June 30, 2022, 11:52 a.m.), https://bit.ly/3IheUxv.

[30] Pat Sekaquaptewa, Roe Bubar and JoAnne Cook, Resource Guide and Workbook for Drafting New or Amended Tribal Laws on Crimes Against Children (August 2008), https://bit.ly/48ATExg.

[31] Id.

[32] See generally Montana v. United States, 450 U.S. 544 (1981).

[33] Id.

[34] Id.

[35] See Statutory Interpretation: Theories, Tools, and Trends, Congressional Research Service, 1 (updated March 10, 2023), https://bit.ly/48v4vJk.

[36] Id.

[37] Id.