Ross: Native law
Our never-ending struggle
''After climbing a great hill, one only finds that there are many more hills to climb.'' - Nelson Mandela
From the dawn of this great nation, Natives of this continent have rarely gotten fair treatment from the United States' courts of law or halls of Congress. Native policy and legal types have expressed righteous indignation over the just-handed-down San Manuel v. NLRB decision, convinced that San Manuel is the death knell for tribal sovereignty. True enough, the D.C. Circuit Court of Appeals declined to review a decision that selectively enforced a tangential principle that has been scarcely invoked in over 30 years old as it related to tribes and the National Labor Relations Act. The case also mistook dictum as legal authority, and probably most disturbingly, failed to recognize an agency of a tribal government as an exempt governmental entity under the NLRA. Yet, although San Manuel is a poke in the face of tribal sovereignty, Native people have consistently weathered and conquered much larger and more serious storms - legal, legislative and otherwise. Tribes will get past this hill, and breathe a sigh of relief, just in time to get prepared for the next hill that we will inevitably survive and indeed, conquer.
Tribes' success rate in the courtroom and in Congress during the early years of this republic was barely existent. Indeed, the phrase ''can't win for losing'' comes to mind regarding courts' treatment of tribes, as even when they have ''won'' the enforcement of such decisions left a bit to be desired.
Natives have had some victories in the courtroom. Some would even argue that there was a period of time - the self-determination epoch - in which legal decisions actually seemed to strengthen tribes. Yet, in the decades immediately before San Manuel, there has most definitely been a movement away from augmenting tribal authority through court decisions as evidenced by such cases as Oliphant v. Suquamish, Atkinson Trading Company v. Shirley and Nevada v. Hicks.
San Manuel continued the recent, post-self-determination pattern of decisions that adversely affect tribal governments. However, San Manuel also showed audacity that the other cases did not. The case relied upon tangential language found in Federal Power Commission v. Tuscarora, although Tuscarora had been invariably ignored for over 25 years in such cases as Fort Apache Timber Company and Southern Indian Health Council Inc., when the enterprise was tribally-owned and on-reservation. One would reasonably believe, utilizing Fort Apache and Southern Indian Health Council as evidence, that Tuscarora was ostensibly dead as applied to tribal governments and agencies of tribal governments.
Then, like a phantom, Tuscarora reappeared out of thin air in 1992 vis-a-vis Sac and Fox Industries Ltd. Sac and Fox stated that ''a general statute in terms applying to all persons includes Indians and their property interests.'' Although Sac and Fox referred to off-reservation tribal concerns, the writing was on the wall for all to see: It would only be a short period of time before the NLRA and all so-called ''statutes of general applicability'' applied to all Indians. The interesting thing about the above proposition is that it was not central or binding to the Tuscarora case! Indeed, the court in Tuscarora was being prescriptive, ruling on cases that had not even been imagined yet. While the court in Tuscarora discussed the Federal Power Act, San Manuel had substantially different content and subject matter as it concerned the NLRA.
San Manuel perpetuated the continuum that started in Tuscarora, disappeared, and later mysteriously reappeared in Sac and Fox. Make no mistake about it either, San Manuel hurt. It hurt - just like Tuscarora hurt - just like Sac and Fox hurt. All of the decisions that whittle away the unique status of Natives hurt. Those cases hurt because they are the wrong decisions, not resting upon logical, coherent or consistent legal premises. They hurt because they do violence to the legacies of our ancestors - our strong and brilliant grandpas and grandmas, incredible mothers and fathers - who took protective measures and did amazing work to protect us.
Yet, probably the most hurtful and condescending portion of San Manuel was the court's refusal to recognize tribal governments as legitimate governments under the NLRA. As ''domestic, dependent nations,'' tribes perform as many, if not more, of the governmental-type services for their respective members as do most states and municipalities. As anyone who has lived on a reservation well knows, tribes oftentimes perform the educational, law enforcement, social welfare, and even homeland security pieces entirely by themselves. In fact, some have even referred to reservations as a ''legal vacuum'' because of jurisdictional gaps where ''no government has authority,'' or where when the state does intervene, it abuses its power. Therefore the tribe does the work. Yet, despite performing all these essential governmental services for their members, and despite a long history of tribes being considered ''governments'' under the NLRA, San Manuel said that tribes are no longer ''governments'' under the NLRA.
Yet, I submit that although these inconsistent, wrong and sometimes-racist decisions hurt Natives and tribes, still Native people and tribes will recover. Amazingly, however, tribes have almost invariably recovered to be stronger and more resilient than they had previously been. The mighty words of Vine Deloria Jr. are ringing truer than ever: ''Increasingly, American Indians are understanding the European invasion as a failure. That is to say, in spite of severe oppression, almost complete displacement, and substantial loss of religion and culture, Indians have not been completely defeated.''
Tribes will climb the San Manuel hill in the same manner that they have climbed others in the past. San Manuel is not the death cry that so many forecast; in fact, it is merely another example of antagonism and adversity that will ultimately give tribes the platform to display their collective resourcefulness and industriousness. It is an unfortunate reality that tribes are forced to overcome a seemingly perpetual chain of incredible struggles. Yet, tribes have been on this continent since time immemorial, and have already overcome many struggles - great and small - throughout their incredible tenure. The San Manuel hill is nothing more or less than a chance for tribes to think creatively about an issue using their intelligence, spirituality, customs and culture. Then, as they have always done, tribes will develop a plan to prosper despite the hardship.
Gyasi Ross comes from the Nitzitapi - the Blackfeet people. His family also comes from the Suquamish people of Washington. He is a Washington-state attorney who works in the area of economic development.