SPEECH TO THE AMERICAN INDIAN SOVEREIGNTY SYMPOSIUM
JUNE 7, 1994
I. Introduction.I want to thank Justice Yvonne Kauger, Chief Justice Ralph Hodges, and the other Justices of the Oklahoma Supreme Court for inviting me to address you today. It is both proper and appropriate for the State of Oklahoma to host such an event and for it to have become the premiere symposium on Indian Law in the United States. When I look over the list of participants I see important leaders of tribal communities, many of whom I had the opportunity to speak with last month at the Listening Conference in Albuquerque, as well as some of the leading scholars and practitioners of Indian Law in the United States.
Oklahoma and the tribes located within the state's boundaries face complicated issues of jurisdiction -- issues that have at their root the historical evolution of tribal sovereignty in American Law. As we re-examine the current state of tribal sovereignty it is important to remember that the relations between the tribes and the Unites States government largely determines the scope and range of tribal sovereignty.
This is an important moment because we have in the White House a President who is not only concerned about the way in which the federal government has related to tribes in the past, but wants to strengthen the sovereign relationship in the future. The President is concerned about the role of the federal government in helping to create the conditions for tribal self-management and for improving the tri-partite relationship between the federal government, the tribes, and the states.
II.On April 29 of this year, at an historic meeting with the leaders of the federally recognized tribes, President Clinton signed a memorandum to the heads of all executive departments and agencies. That memorandum directs the agencies to ensure that all interactions with the tribes strengthen the government-to-government relationship with tribes. That relationship is a product of the unique legal linkage -- a relationship born of historic accords reached between sovereign entities -- that binds the tribes and the United States Government to one another.
In that memorandum the President ordered that all executive branch activities be guided by the following principles:
1) to operate within a government-to-government relationship with federally recognized tribes;I am committed at the Department of Justice to review our programs and procedures to ensure that we conform to those principles. Fundamental to tribal sovereignty is the maintenance of government-to-government relationships fully cognizant of our trust responsibilities to Indian tribes and Indian people. Moreover, as I will discuss in greater detail later, I believe that the institution of procedures to make consultation with the tribes easier and more systematic is critical to improving our relationship with the tribal governments.
2) to consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments before taking action that affects federally recognized tribes;
3) to assess the impact of agency activities on tribal trust resources and to assure that tribal interests are considered before the activities are undertaken;
4) to remove procedural impediments to working directly with tribal governments on activities that affect trust property or governmental rights of the tribes;
5) to work cooperatively with other agencies to accomplish the goals of the memorandum.
III.What I learned at the Listening Conference in my discussions with tribal leaders is that the resolution of almost every issue that was raised flows from a clear understanding of both the exercise of the trust responsibility and the respect for the inherent retained sovereignty of the tribes. I also learned that the legal response to the claims of tribal sovereignty is one that has a curious history. At the turn of the century, outside of Indian country, there was little respect for tribal sovereignty. One law professor writing in the Yale Law Journal went so far as to suggest that Indian sovereignty was a "pious fraud" used by the non-Indian community to deceive tribes.
Most importantly, I learned that the life of the law is not written in books, but in the lived experience of the people day to day. My conversations at the conference have persuaded me that we must support tribal sovereignty through clear, unambiguous policy and bold action. Let there be no mistake that this Justice Department's Indian policy will be different from the past. We must ensure that the path we take leads to the creation of institutions that support tribal self-government so that the Indian people themselves may benefit.
I recognize that the federal government has a unique obligation to Indians and tribes. The special relationship grows out of the trust responsibility that binds the federal government when it exercises its power to affect Indian nations. The Supreme Court has recognized this responsibility since the landmark opinions of Chief Justice Marshall in the 1830's.
But I also know that a complete statement of this federal trust responsibility will never be fully finished. That it cannot ever be fully stated is good, because the relationship between the tribes and the federal government is constantly evolving. That evolution continually transforms our understanding of the trust responsibility. Policy makers must continue to be guided by the lodestar of enhancing tribal sovereignty within our federal system.
The role of the Department of Justice remains crucial in the evolution of the meaning of the trust responsibility. We must remember that the very idea of the trust responsibility as a limitation on how the government may act towards Indians was born in litigation. Moreover, litigation requires specificity in the formulation of the duty and we can never go too far astray so long as the Department remains faithful to its responsibilities in litigating on behalf of Indian tribes. Each specific case then helps to chart the contours of tribal sovereignty. We must do our best to ensure that each case we bring on behalf of tribes reflects this Administration's commitment to enhancing the capacity for tribal self-governance.
One conclusion I have reached is that sovereignty has many faces. It is not fully captured by reference to the federal fulfillment of the trust responsibility. Central to tribal sovereignty is the capacity for self-management through enhanced law enforcement and tribal justice mechanisms. In the month since the Listening Conference I have asked my staff to work to do what we can immediately to improve the delivery of law enforcement services to Indian country. The Department has responded.
The Department identified specific responses to a number of tribal concerns. I believe these changes will make a difference and I am proud to announce them today.
A. DOJ INDIAN TASK FORCEAlong with Secretary Babbitt, I have established an American Indian Task Force to coordinate Indian policy throughout the Department. I have asked Gerald Torres to chair this working group of senior attorneys and have charged him with two major responsibilities: 1) to develop the Department's policy regarding Indian Sovereignty, and 2) to develop a process for working with tribal governments and courts in the future.
The Task Force is also charged with evaluating the Listening Conference transcript with an eye toward identifying longer term legislative and administrative reforms. Part of the long term reform depends on close coordination between the Department of the Interior and the Department of Justice with other government agencies. We will work with them in developing what we hope will be historic initiatives addressing the most fundamental features of the Indian / federal relationship, including the tribal judicial system, jurisdiction issues, and outstanding land and resource claims.
B. ADDRESSING THE TRIBAL / U.S. ATTORNEY RELATIONSHIPI realize that to most tribal governments, the United States Attorneys' Offices represent the primary contact with the federal government. For that reason, I have asked John Raley, as Chair of the U.S. Attorneys sub-committee on Native American Issues, to coordinate with the Attorney General's Advisory Committee and my staff to see that a number of measures be taken by September 2.
1. AUSA Liaison Reporting SystemI will ask each United States' Attorney in jurisdictions with large tribal populations to appoint a Special Assistant for tribal relations to communicate between the USA offices and tribes. This person will be responsible for preparing statistical summaries of declinations and will be available to answer questions regarding specific cases.
2. Attorney General Advocacy Institute CoursesThis year we will also provide Assistant United States' Attorneys additional courses on Indian Law and Indian related matters, including education about Indian culture and history. Greater sensitivity to Indians and their customs and way of life will help create trust and open communication between members of the tribes and our lawyers.
3. Tribal Social Service WorkersBecause the unique characteristics of American Indian culture cannot be ignored, I have asked the U. S. Attorney's Native American Issues Committee to propose specific guidelines authorizing Assistant U.S. Attorneys to contract with skilled, reservation-based, Indian social workers who can assist them and counsel Indians victims of crimes involving child sex abuse and domestic violence. I believe this will help make our enforcement of laws protecting children as effective as they can be.
I have also asked the United States' Attorneys to coordinate with the Criminal Division to implement the Attorney General Victim-Witness Guidelines immediately, including the establishment of Multi-disciplinary Teams for each tribe. I will also expand upon the excellent work already underway in our Office for Victims of Crime.
4. Cross Designation of AttorneysI also want to encourage U.S. Attorneys to examine their use of cross-designated tribal attorneys in appropriate tribal matters, such as child abuse or domestic violence cases. I expect guidelines which clearly set out the cases for which the cross-designated use of tribal or other attorneys would be most appropriate, and the rules governing the use of cross-designated attorneys.
C. ADDRESSING CRIMECrime in Indian Country is increasing at a rate of 4 to 5 times higher than in some of this Country's most violent cities. There is an extraordinary need for additional law enforcement and crime prevention assistance in areas under Indian tribal jurisdiction. I have instructed my staff to investigate ways that the Justice Department can respond. Several Sections within the Criminal Division have already begun to work together to address Indian country crimes issues and to work with FBI Headquarters personnel to address these issues.
The Criminal Division is also working closely with the Indian Affairs Sub-committee of the Attorney General's Advisory Committee and the U.S. Attorneys to develop litigation and litigation support services in an effort to leverage our resources to ensure maximum responsiveness to crime victims in Indian country.
1. Anti-Crime Bill's Effect on IndiansAfter the Listening Conference, my staff sat down and reanalyzed the Anti-Crime Bill with an eye for opportunities to benefit tribal people. Many of the programs in the House and Senate bills authorize assistance to Indian tribal governments and agencies, but not all of the programs in the bills have been formulated with this need in mind. We are urging the Conference Committee to ensure that funding to meet the needs of Indian tribes will consistently be authorized in such areas as policing, detention and correctional facilities, control and prevention of violence against women, and training of court personnel.
Our Office of Legislative Affairs will be directed to ensure that from this point forward anytime we review legislation, we will also analyze how the law will affect Indian people and whether a provision for tribes should be included.
I will support amendments in the Conference Committee which provide Indians the opportunity to receive a truly fair share of crime bill benefits and also address tribal governments' concerns about matters such as grant distribution mechanisms and matching requirements.
2. Operation Safe TrailsI am very proud of one DOJ project in particular involving Indian crime. The FBI, tribal police and the Arizona U.S. Attorney have come together as a team, sharing their resources and expertise in a dynamic law enforcement program attacking crime on the reservation. Beginning this month, the FBI will train 12 Navajo police officers in drills, maneuvers, and investigation skills, including on-site training at the FBI facility in Quantico, Virginia.
Following their training, the tribal police will return to the Navajo nation and work with the FBI in the investigation and prosecution of cases. I want to expand this program in other Districts, where appropriate, and expect the FBI to give requests for additional projects serious consideration.
D. COMPREHENSIVE COMMUNITIES PLANCoordinated responses like the Safe Trails initiative are not only smart, but they are necessary. The federal government does not have enough money to accomplish all it is asked to. That is why I have asked the Office of Justice Programs to assist communities around the nation, including tribal communities, to develop comprehensive plans for coordinating law enforcement efforts. By comprehensive I mean bringing together federal people with tribal people and state people where appropriate to work on a systematic approach to criminal issues--from treatment centers for substance and alcohol abuse, to activities for children after school, to training programs for tribal police, social workers, and government lawyers, to initiatives for strengthening and building tribal courts.
We can no longer afford the old piece-meal approach to law enforcement in Indian Country. To get at the whole crime problem--from its roots to its devastating consequences--we must coordinate federal resources and work with tribes to apply the resources to a comprehensive community crime plan.
I have authorized funding this year for two tribal projects to develop comprehensive community plans in coordination with the Department's Office of Justice Programs.
E. GAMING ACTION PLANA team of attorneys from the criminal, environment, legislative affairs, and solicitor general's offices are well under way to completing a Department wide gaming plan. At the heart of this action plan is the department's interest in encouraging gaming to permit tribes the fullest economic benefit and at the same time keeping the industry adequately regulated and clear of criminal elements.
CONCLUSIONThese efforts are only the first steps towards ensuring that the Department of Justice transforms the things that we learned from the tribes at the Listening Conference into practical and achievable programs. I want to emphasize our commitment to working with the tribes to address the many complex issues in Indian Country. I also encourage the tribes to reach out to the Department, the U.S. Attorneys, and the FBI with your thoughts, concerns, and ideas.
I believe that all of our actions must be guided by a bold vision, but tempered by the modesty of knowing that each step we take will reveal a new vista. We cannot see what the future holds, but in words of Robert Kennedy, "moral courage is a rarer commodity than bravery in battle or great intelligence. Yet it is the one essential, vital quality for those who seek to change a world that yields most painfully to change...and those [who] enter the moral conflict will find themselves with companions in every corner of the world."