Long before the federal government existed, Native American tribes decided on their own where to live, how to irrigate their crops, and where to establish geographical boundaries for hunting. But actions by Congress and the courts have drastically eroded the sovereignty of Indian communities, a tribal leader told a College of Law audience on Tuesday, Feb. 17.
Diane Enos, president of the Salt River Pima-Maricopa Indian Community, spoke about "Tribal Governance and Individual Rights: the Delicate Balance of Power and Alarm" at the Second Annual William C. Canby Lecture at the Sandra Day O'Connor College of Law at Arizona State University. The lecture was sponsored by the College's Indian Legal Program and named in honor of Judge William C. Canby Jr. of the 9th U.S. Circuit Court of Appeals and a founding faculty member of the College of Law.
In introducing Canby, Dean Paul Schiff Berman called the judge "an extraordinary friend of the law school and the Indian Legal Program" who was instrumental in establishing the program. "As a federal judge, he has continued to take the lead in understanding and responding to Indian legal issues," Berman said.
The Indian Legal Program's remarkable graduates are a testament to the program's importance in many communities. "The kind of work they do, the lives they are touching and the tribes they are bettering demonstrates why public legal education matters to the world," Berman said.
Canby said he was proud of the accomplishments of the Indian Legal Program, now in its 20th year. "It's operating on its own power now, and it's the people, both the students and the faculty, that have made it what it is today," he said.
In her lecture, Enos, a 1992 College of Law alumna, gave examples of actions by the state and federal government, taken in the name of protecting individual rights, which have eroded tribal sovereignty throughout history.
"When the Europeans came, they didn't know what do to with us," she said. "The more the federal government started getting involved with us as tribes, the more they found it necessary to decide who had authority over us."
In 1830, President Andrew Jackson signed into law the "Indian Removal Act," which resulted in many tribes living mostly in the South to be forced West. "The U.S. wanted this land and a clear understanding of what was tribal and what was non-tribal," she said.
In 1978, a severe blow was delivered to sovereignty when the U.S. Supreme Court ruled tribal courts have no criminal jurisdiction over non-Indians on tribal lands, unless so delegated by Congress. And in 2006, the Adam Walsh Child Protection and Safety Act set up requirements on tribes to create a sex offender registry as part of a national system, or cede jurisdiction to the states.
"It's a unique relationship Indians have to their tribes and to the federal government, unique in all of American law," said Enos, the second woman president of the Community and the first member of the Salt River Indian Community to become an attorney. "Indian rights are derived from very distinct sources, and that creates tension."
"If I'm on a reservation, my rights with my tribal government are different than if I am standing here in Tempe," she said.
Tribal leaders today have a great responsibility to think and talk about cases in tribal courts and decide whether federal appeals of them works against sovereignty, Enos said.
"Everything has to be looked at through the filter of individual rights versus tribal rights," she said. "You have to constantly have it in your mind, not only with regard to tribal court but everything that happens - land sales, commercial development, gaming."
She advised students in the audience, many who are in the Indian Legal Program, to be unafraid to counsel their clients courteously, but honestly, and to obtain good experience in a variety of legal settings.
"I believe that old saying, `A little knowledge is a dangerous thing,'" Enos said. "The knowledge that you get at the College of Law is superb, but it doesn't tell you what the real world is like. You have to get out there, and duke it out."