Give me liberty (and tribal sovereignty)

Long before the United States existed, Indian tribes exercised sovereignty through governing councils, clans, and other bodies designed to protect people and resources. Unlike the popular notion of a single chief adorned in feathers, most tribal governments featured multi-layered leadership with built-in checks and balances. The Haudenosaunee or Iroquois Confederacy of present-day New York, for instance, consisted of six distinct but related tribes whose clan mothers nominated men to a grand council that made decisions affecting the entire group. Representation was proportional to each tribe's population and council members could be removed from office for bad behavior.

Today's tribal governments generally rely on democratic elections rather than hereditary claims or military might to select leaders. Modern tribal governments are elected by a majority of adult tribal members to two or four-year terms of office. Usually, these leaders serve on a body known as a tribal council which manages day-to-day tribal operations, like whether to apply for a federal grant or exclude a dangerous person from the tribe's reservation. Tribal councils generally only possess the power conferred on them by the tribe's legislative body, which for many southern California tribes, is a general council made up of all tribal members eligible to vote.

The process of voting in tribal elections, whether to choose leaders or approve legislation, is itself symbolic of tribal sovereignty and protecting individual liberty. Tribal elections may follow unwritten customs and traditions or detailed procedures outlined in the tribe's governing documents. Tribes often adopt measures to protect the integrity of their elections, like forming committees to monitor election procedures and ensure compliance with applicable tribal laws and permitting judicial challenges in tribal court. Tribal elections therefore are a means to participate in self-government while effecting change through a democratic system.

Like elected bodies and the tribal members who vote them into office, tribal judicial systems offer another example of how tribes exercise sovereignty while protecting individual rights. At their core, tribal courts are responsible for interpreting tribal law and providing parties with a neutral forum to litigate disputes. Tribal members, by adopting laws, determine the subject matter jurisdiction of their courts. The courts are then responsible for asking and answering tough questions like whether a non-Indian's conduct falls under tribal jurisdiction, if it is in the best interest of a tribal child to remove her from her parents, and whether tribal action constitutes an abuse of power.

Importantly, some tribes do not operate courts, not because they lack the autonomy or right to do so, but because they find it cost-prohibitive or lack the caseload to justify the expense. Nevertheless, more than two dozen tribal courts exist in California today, including some consortium courts made up of multiple member tribes that share costs to meet their unique needs. Other tribes operate standalone courts that may offer appellate review and/or alternative dispute resolution services. Whatever a tribe's judicial system looks like, it bears the important responsibility of balancing tribal sovereign interests with individual rights.

There is a check on tribal authority from an unlikely source - the United States Constitution, at least indirectly. Congress, exercising its Article I power to regulate Indian affairs, passed the Indian Civil Rights Act in 1968 to protect tribal members, who are simultaneously American citizens and citizens of sovereign tribal nations, from unconstitutional government action. 25 U.S.C. § 1301, et seq. Tribes, for example, cannot abridge members' speech or conduct unlawful searches of their property. With the exception of habeas corpus relief, however, ICRA claims must go to tribal rather than federal court.

Finally, tribal sovereignty includes the ability to offer a hiring preference to tribal members which promotes economic opportunities while encouraging self-government. The preference does not, however, guarantee employment. If two or more applicants have identical qualifications for the same position, the tribal member gets preference. Is such a policy discriminatory, or worse, illegal? No. Title VII of the Civil Rights Act of 1964 exempts Indian tribes. See 42 U.S.C. § 2000e(b). In Morton v. Mancari, 417 U.S. 535 (1974), the Supreme Court upheld a federal hiring preference for Native Americans finding it based on a political rather than racial classification (tribal membership, which confers specific rights, versus Native American ancestry).

Tribal governments are literally governments of the people, by the people, and for the people. They assert a tribe's inherent sovereignty to make their own laws and be governed by them while protecting individual tribal members' (and non-members') right to due process, justice, and self-government.

Mark A. Vezzola serves as deputy general counsel for the Pechanga Band of Indians, a federally recognized sovereign Indian nation based in Temecula, California. Prior to joining Pechanga, he was the directing attorney of the Southern Office of California Indian Legal Services and served as the chief judge for the Pala Band of Mission Indians and Chemehuevi Indian Tribe's courts.