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Navajo Nation Council Approves Navajo Nation Policy Position in Response to U.S. Supreme Courtıs Diminishment of Tribal Sovereignty.

WINDOW ROCK, AZ ­ The Navajo Nation Council on Friday, Aug. 24, by a vote of 62-0-0, unanimously approved the Navajo Nationıs policy position in response to the U.S. Supreme Courtıs continued diminishment of tribal sovereignty.

"Recent Supreme Court decisions such as Atkinson Trading Co., Inc. v. Joe Shirley, Jr. and Nevada v. Hicks undermines Indian Nations' efforts to achieve self-sufficiency," said Navajo Nation Council Speaker Edward T. Begay. "As I stated before, the Navajo Nation Council stands ready to address issues arising from the Supreme Court decisions."

Speaker Begay sponsored the resolution in preparation for presentation at several regional inter-tribal meetings, including, a Tribal Leaders Forum scheduled on September 11, 2001 in Washington, D.C., sponsored by the Native American Rights Fund, National Congress of American Indians and the National American Indian Court Judges Association.

The resolution sets forth the Navajo Nation's position relative to national strategic action by Indian nations and organization to address the impact of recent U.S. Supreme Court Decisions relative to the diminishment of tribal sovereignty and jurisdiction.

"The recent Supreme Court decisions have wide-ranging implications for all of Indian Country not just the Navajo Nation," Speaker Begay said. "American Indian tribes must continue seeking the restoration of jurisdiction from the United States Congress. The Navajo Nation Council will continue to take every opportunity to coordinate with other tribes and national organizations to influence Congress."

(The policy statement follows.)

I. Introduction

Over the past two decades U.S. Supreme Court decisions have steadily eroded the inherent sovereignty of Indian Nations. In fact, all that remains of Indian Nation sovereignty is authority over members within respective reservations. The Court only recently declared that State Police Officers may lawfully invade the territorial jurisdiction of Indian Nations. Indian Nations are not merely social clubs or associations vulnerable to political intrusions. Rather, Indian Nations are a recognized government with inherent sovereignty.

The Navajo Nation encourages all Indian Nations to unite as one, to speak with one voice, to advocate for true recognition of our inherent sovereignty by the United States Congress. Indian nations must demonstrate a united front against further encroachment against our sovereign rights not only in this present crisis but also to protect our future and the future of our children. Indian Nation leaders of today have the combined strength to decide a course of action. The spirit of Indian nations is so powerful that no one can diminish it if we stand together.

The Navajo Nation goal is to work with the U.S. Congress, state governments, and other Indian nations to secure our inherent sovereign rights. Certain principles are paramount in working to achieve these goals. First, Indian nations must come to a consensus of what sovereignty means. Second, Congress must recognize that sovereignty as absolute and not a delegation.

II. Goals

A. Indian Country Statute, 18 USC § 1151

Goal: Congressional amendment to 18 USC § 1151 to make it clear that it defines Indian Nation jurisdiction over events inside and outside of tribal territory, i.e. Indian Child Welfare Act.

Responds to Strate v. A-1 Contractors (1997) and Bighorn Electric,(9th Cir 2001).

Indian Country is defined as (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

The definition of dependent Indian community, § 1151(b), must be clarified in legislation to mean any area which is Indian in character by reason of population patterns and the existence of distinct Indian communities, including all areas outside a given Indian Nationıs reservation and in areas where federal services are provided to Indians, regardless of tribal membership or land status.

B. Regulatory and Taxing Authority

Goal: Congressional recognition of Indian Nation regulatory and taxing authority.

Congressional response to recognition of Indian Nationıs regulatory authority in hunting and fishing, leasing and rights-of-way. A congressional recognition of civil authority to Indian Nations including the right to tax and regulate all commercial activities taking place within the exterior boundaries of Indian country, and on activities outside of the exterior boundaries which directly affect Indian Country. State jurisdiction to tax any activity whether engaged in by Indians or non-Indians must be extinguished to assure Indian nations have the capacity to generate appropriate revenues for the health and welfare of Indian Country.

Response to Atkinson Trading Co. v. Shirley, et al., Strate v. A-1 Contractors, South Dakota v. Bourland

C. Federal Judicial Review

Goal: Congressional authorization and funding for federal Indian Appeals Court.

There is a general reluctance on the part of federal courts and governments to recognize Indian nationsı inherent right to exercise criminal jurisdiction over non-members committing crimes in Indian Country. This is due primarily to a fear that non-members will not be accorded due process and equal protection as guaranteed in non-Indian courts. To address this issue and to assure that Indian Nations provide constitutional protections for non-members and non-Indians, Indian nations may consider federal review of tribal court decision by a federal Indian Appeals Court comprised of Indian jurists. The appellate review over Indian court decisions should be limited to petitions for writs of habeas corpus under the Indian Civil Rights Act and petitions for writs of prohibitions or mandamus for clear violations of due process or equal protection.

In addition, Congress must enact legislation that ensures a substantive tribal role in the confirmation of all federal judges who adjudicate Indian Country matters.

D. Criminal Jurisdiction

Goal: Congressional recognition of Indian nation criminal jurisdiction.

Unless and until the United States Government is prepared to guarantee the health and safety of crime victims through federal prosecution and incarceration of offenders, it should recognize an Indian Nationıs inherent criminal jurisdiction over all persons and offenses committed in Indian Country. Determination of jurisdiction should be based upon territory only. Not whether the defendant or the victim is an Indian or non-Indian or type of offense.

E. Opt-In/Opt-Out Provision

While it is critical that all Indian Nations stand united in these efforts, recognition must also be given to those Indian nations that are not yet prepared nor willing to exercise all attributes of their inherent sovereign authority. Therefore, Indian nations must be granted the opportunity as an exercise of their sovereign right to either opt-in or opt-out of these political rights.