By Dr. William Sassman, M.Div, Ph.D.
[email protected]
A) Williams v. Lee set the stage in 1959 for a greater role of federal Indian law – exclusive tribal judicial jurisdiction. Widely cited – National Farmers Union Ins. Cos. V. Crow Tribe of Indians, 105 S. Ct. 2447, 2454 (1985); Kerr-McGee Corp. v. Navajo Tribe, 105 S. Ct. 1900, 1903 (1985); Rice v. Rehner,463 U.S. 713, 723 (1983); Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 563 (1983); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983); Ramah Navaho School Bd, v. Bureau of Revenue, 458 U.S. 832, 837 (1982); Montana v. United States, 450 U.S. 544, 564 (1981); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 151 (1980).
B) “The basic Indian law of canons of construction require that treaties, agreements, statutes and executive orders be liberally construed in favor of the Indians;” (Choctaw Nation v. U.S. 318 U.S. 423, 431-432 (1943) (quoting Tulee v. Washington, 315 U.S. 681, 684-685 (1942) “treaties are construed more liberally than private agreements . . . Especially is this true in interpreting treaties and agreements with the Indians [which are to be construed] ‘in a spirit which generously recognizes the full obligation of this nation to protect the interests of [the Indians]”); Choate v. Trapp, 224 U.S. 665, 675 (1912)(“in the Government’s dealings with the Indians [the] construction [of treaties]is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of the Indians); Worcester v. Georgia, 31 U.S. 515, 551-557 (1832)(interpreting Treaty of Hopewell in light of congressional policy to “treat tribes as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate”); and all ambiguities are to be resolved in favor of the Indians. See McClanahan v. Ariz. State Tax Commission, 411 U.S. 164, 174 (1973) (“any doubtful expressions in [treaties] should be resolved in the Indians favor’); Chocktaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970) (” any doubtful expressions in [treaties] should be resolved in the Indians’ favor”); Carpenter v. Shaw, 280 U.S. 363, 367 (1930) (“doubtful expressions are to be resolved in favor of the Indians”)’ Winters v. United States, 207 U.S. 564, 576-77 (1908)(” by a rule of interpretation of agreements and treaties with the Indians, ambiguities occurring will be resolved from the standpoint of the Indians”).
C. The doctrine of tribal immunity has been a part of American jurisprudence for well over a century. See, e.g., Parks v. Ross, 11 How. 362 (1851); Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L. J. 137, 148-155 (2004) (tracing the origins of the doctrine to the mid-19th century); Wood, It Wasn’t An Accident: The Tribal Sovereign Immunity Story, 62 Am. U. L. Rev. 1587, 1640-1641 (2013) (same). And in more recent decades, this Court has consistently affirmed the doctrine. See, e.g., United States v. United States Fidelity & Guaranty Co., 309 U. S. 506 (1940); Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U. S. 165 (1977); C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U. S. 411, 418 (2001).
8. Dep’t of Defense Appropriations Act of 1991, Pub. L. No. 101-511, § 8077(b)- (d), 104 Stat. 1856, 1892-93 (codified at 25 U.S.C. § 1301(2) (2006)) (providing that “‘powers of self-government’ means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians”).
9. Teague v. Bad River Band, 236 Wis. 2d 384 (2000) (holding that tribal courts deserve full faith and credit since they are the court of an independent sovereign; however, in order to end confusion, cases that are filed in state and tribal courts require consultation of both courts before they are decided.