In this powerpoint lecture presentation, Robert A. Williams, Jr., E. Thomas Sullivan Professor of Law and and Faculty Co-chair, Indigenous Peoples Law and Policy Program at the University of Arizona Rogers College of Law, discusses “The Legal Framework for Native Nation Building” at a recent University of Arizona Native Nations Institute (NNI) Executive Education for Tribal Leaders Workshop. Professor Williams, who is also a Faculty Associate of NNI, provides an overview of the U.S. government's centuries-long assault on tribal sovereignty -- in particular the ability of Native Nations to make and enforce law -- and stresses the importance of Native Nations systematically building their capacity to exercise jurisdiction over their own land and affairs in what he calls "the 21st century nation-building era."

1. NNI Executive Education for Tribal Leaders
“The Legal Framework for Native Nation Building”
Robert A. Williams, Jr.
E. Thomas Sullivan Professor of Law and Faculty Co-Chair
Indigenous Peoples Law and Policy Program
The University of Arizona Rogers College of Law
Co-author: Getches, Wilkinson and Williams:
Federal Indian Law: Cases and Materials (West, 6th ed. 2011)

2. The History of Federal Indian Law and Policy:
Characteristics and Challenges
• Pre-Constitutional Era (1532-1789)
Doctrine of Discovery/King’s Proclamation of 1763/Colonial treaty-making
• The Formative Years (1789-1871)
Indian Commerce Clause/Non-Intercourse Act and Treaty-making/ Marshall Trilogy and
Removal/Beginnings of Reservation System/End of Treaty-Making
• Allotments and Assimilation (1871-1928)
Dawes Act/Kagama and Lone Wolf /Courts of Indian Offenses/Boarding Schools
• Indian Reorganization (1928-1942)
Merriam Report/Indian New Deal and the IRA/John Collier and Felix Cohen
• Termination (1943-1961)
Ira Hayes and Civil Rights Movement/House Resolution 108 and Public Law 280/
NCAI and Pan-Indian Movement /Indian Claims Commission/Tee-Hit-Ton
• The “Self-Determination” Era (1961-present)
1968 ICRA/Nixon’s “638” Self-Determination legislation/1978 ICWA & AIRFA/1988
IGRA/1990 NAGPRA/ Landmark Indian rights cases—Mancari, “Boldt,” Martinez

3. “The Nation Building Era”
(circa 1990-present)
Characteristics and Challenges
• Limits on Indian Self-Determination defined by Congress and courts, not
tribes, e.g., IGRA, San Manuel v. NLRB
• Hostile Supreme Court, e.g. Nevada v. Hicks, Rice v. Cayetano, Sherrill
• Anti-Indian groups, anti-affirmative action mood, heightened news media
scrutiny (Wall Street Journal/D.C. corruption scandals)
• Shrinking federal budgets, rising health costs, no-child left-behind, rising
crime, unemployed youth, poor infrastructure
• Tribal enterprises are competing in a national/globalized hyper-competitive
economic environment (no special “bennies”/immunities just because you
are a tribal business)

4. 1. Practical self-rule
2. Effective governing institutions
3. Cultural match
4. Strategic orientation
5. Leadership
6. Legal framework for Native Nation Building
The Nation Building Approach to
Sustainable Development

5. The Legal Framework for Native Nation Building
Sources of Tribal Powers and Rights
• The Tribal Sovereignty Doctrine
• Tribal Constitutions and Tribal Law
• Treaties and Statutes (federal)
• Compacts, Agreements, MOU’s, etc. with other Native
Nations, non-tribal governments (federal, state and
subdivisions), and other legal entities (corporations,
foundations, etc)
• International Human Rights Law (UN and OAS human
rights system)

6. The Legal Framework for Native Nation Building
Sources of Limitations on Tribal Powers
• Congressional Plenary Power and the Trust
Doctrine
• The Supreme Court’s “Implicit Divestiture”
Doctrine
• Tribal custom and tradition
• International Human Rights Law
• Assertions of States’ Rights in Indian Country

7. The Legal Framework for Native Nation Building
Putting Tribal Sovereignty to Work
• Tribal courts and dispute resolution systems
• “Modern” tribal constitution
• Updated election codes/staggered terms for elective offices
• Revised citizenship and membership codes
• Law enforcement and criminal procedure codes
• Separation of politics from business management
• Business codes/limited liability companies, limited waivers
of sovereign immunity/secured transactions codes
• Administrative Procedure Act
• Intergovernmental agreements

8. Key Assets for Native Nation Building:
Tribal Courts and Dispute Resolution Systems
1. Practical Self Rule
• “Modern” Constitution
• Tribal Law (customary, statutory, codes, reg’s, foreign)
• Independent judiciary interpreting and enforcing the
Constitution and Tribal Law

9. AN EFFECTIVE TRIBAL COURT:
• maintains stability and law and order
• enforces separation of powers in the tribe, including
separation of government and business functions of tribe
• provides transparent resolution of disputes through a strong,
fair and independent judiciary
• gives the tribe ability to make binding decisions in a timely
fashion
• a self-governance structure that gets things done for the tribe
2. Effective Governing Institutions
Tribal Courts and Dispute Resolution Systems

10. • Tribal courts must have legitimacy with the people to
be effective.
• Effective tribal courts match indigenous ideas about
how authority should be organized and exercised.
• Self-governance institutions that match contemporary
indigenous cultures are more successful than those
that don’t. (duh!)
Tribal Courts and Dispute Resolution Systems
3. Cultural Match

11. Na-Dene Language Map
Dine Bi Beehaz’aanii
Navajo Nation Common Law
•dine’e –Navajo/people
• ke’e – kinship
• ak’ei – grandparents
• adoone’e – clan
• hozho – harmony
• naat’aanii – leader/peacemaker
• hozhooji naat’aanii – peacemaking
• nalyeeh – restitution/restoration/make whole
• hozhoojigo – “talking things out” in order to
return to a state of harmony
Dinetah – Navajo Nation

12. • Proactive thinking (not just responding to crisis but trying to gain
some control over the future – the role of precedent and tribal
common law and how practices can “crystallize” into rights )
• Long-term, systemic thinking (seven generations from now, what
kind of society do you want? – the role of tribal courts in your
vision of the society you’re trying to build )
• Broader focus on the community (fixing not just problems but
societies according to Native knowledge, custom, tradition and
law)
4. Strategic Orientation
Tribal Courts and Dispute Resolution Systems

13. “Individuals or groups who are willing
to break with standard ways of doing
things, who can articulate a new
vision of the nation’s future, and who
understand and can promote the
foundational changes such visions
require.”
5. Leadership
Tribal Courts and Dispute Resolution Systems

14. The Leadership Challenge:
Why Don’t We Ever Waive Our Sovereign
Immunity in Our Own Tribal Courts

15. “The King Can Do No Wrong”
King James I (1566-1625)

16. KIOWA TRIBE OF OKLAHOMA v. MANUFACTURING
TECHNOLOGIES, INC. (1998)
“There are reasons to doubt the wisdom of perpetuating the
doctrine. At one time, the doctrine of tribal immunity from suit might
have been thought necessary to protect nascent tribal governments
from encroachments by States. In our interdependent and mobile
society, however, tribal immunity extends beyond what is needed to
safeguard tribal self-governance. This is evident when tribes take part
in the Nation’s commerce. Tribal enterprises now include ski resorts,
gambling, and sales of cigarettes to non-Indians. In this economic
context, immunity can harm those who are unaware that they are
dealing with a tribe, who do not know of tribal immunity, or who have
no choice in the matter, as in the case of tort victims.
“These considerations might suggest a need to abrogate tribal
immunity, at least as an overarching rule. Respondent does not ask
us to repudiate the principle outright, but suggests instead that we
confine it to reservations or to noncommercial activities. We decline
to draw this distinction in this case, as we defer to the role Congress
may wish to exercise in this important judgment.”

17. Thinking about Tribal Sovereign Immunity
“Sovereign immunity is the power of a
government to define the forum, procedure
and limits respecting suits against itself.”

18. MANY TRIBES HAVE, TO VARYING DEGREES, HAVE
WAIVED IMMUNITY FROM SUIT ON CIVIL RIGHTS CLAIMS
COLVILLE TRIBAL LAW & ORDER CODE § 1-5-8 (providing that to the
extent that a claim in tribal court under tribal civil rights provisions is
covered by the tribe's liability insurance, "suit may be brought for
damages up to the full available amount of the coverage provided in
the insurance policy")
1 MASHANTUCKET PEQUOT TRIBAL LAWS tit. 1, ch. 3, § 11 (waiving
sovereign immunity with respect to claims asserting ICRA violations
by tribal police on tribal lands, but capping damages at $500,000 per
incident, barring punitive damages, and limiting pain and suffering
damages to 50 percent of economic damages)

19. TRIBAL SOVEREIGN IMMUNITY AND INDIVIDUAL RIGHTS
• Tribal courts have held that the Indian Civil Rights Act creates a cause
of action in tribal court.
Palencia v. Pojoaque Gaming, Inc., (Pueblo of Pojoaque Tribal Ct. 2001)
• Many tribal statutory or constitutional provisions have incorporated the ICRA
provisions.
CONST. AND BY-LAWS OF THE CONFEDERATED TRIBES OF THE GRAND RONDE
COMMUNITY OF OREGON, art. III, § 3(k) ("The Tribe shall provide to all persons within its
jurisdiction the rights guaranteed by the Indian Civil Rights Act of 1968.")
• Other tribes have created a cause of action for ICRA violations or provided
“bill of rights” type protections similar to the ICRA in their constitutions or
statutory law.

20. • Many tribes have authorized suit against tribal officials for declaratory
and injunctive relief with respect to claims under civil rights laws or the
tribal constitution.
• CONST. OF THE HO-CHUNK NATION, art. XII, § 2. ("Officials and employees of the Ho-
Chunk Nation who act beyond the scope of their duties or authority shall be subject to
suit in equity only for declaratory and non-monetary injunctive relief in Tribal Court ... for
purposes of enforcing ... this constitution or other applicable laws.")
• Some tribal courts enforce injunctive relief by means of monetary
contempt sanctions against tribal governmental defendants. A plaintiff
might also sue a tribal official for damages in his or her individual
capacity.
Smith v. Beard (Ho-Chunk Nation Trial Ct. 2000) (awarding the plaintiff some $16,000,
and explaining that the court's order to place plaintiff on administrative leave with pay
was an "ongoing contempt sanction to the Nation for not obeying the order to reinstate"
the plaintiff) (Ho-Chunk Nation Supreme Ct. 2001)

21. Tribal approaches to tort, employment-related and
contract claims
• Many tribes obtain liability insurance, with the result that a plaintiff
may recover damages up to the amount of the liability coverage.
1 MASHANTUCKET PEQUOT TRIBAL LAWS tit. 4, ch. 1, §§ 4, 5, 9 (waiving tribal
gaming enterprise's immunity from suit, up to the limits of the applicable liability
insurance)
• A number of tribes have established administrative processes for the
resolution of employment-related claims. Judicial review of
administrative determinations of such claims is often available. Relief
may include reinstatement and, sometimes, the award of back pay.
Contract claims against tribes may be subject to varying modes of
dispute resolution.
• A tribe may waive its immunity by contract, and may permit suit in
tribal or non-tribal courts. The Mashantucket Pequot Tribe, for
example, has waived its immunity from suit in tribal court on all claims
concerning contracts duly executed by the Tribe, unless the contract
expressly states otherwise.

22. 1. Practical self-rule
2. Effective governing institutions
3. Cultural match
4. Strategic orientation
5. Leadership
6. Legal framework for Native Nation Building
The Nation Building Approach to
Sustainable Development