Good (Native) Governance

COLUMBIALAW REVIEW VOL. 107 TUNE 2007 NO. 5

ARTICLE

GOOD (NATIVE) GOVERNANCE

AngelaR Rzley*

AmericanIndian nationsare largely unconstrained by the U.S. Consti- tution,and areonly bound to follow provisions similar to those contained in theBill ofRights by statute. Even then, the Supreme Court has affirmedthat tribesare notrequired to apply or interpret civil rights protections directly in linewith state and federal governments. Accordingly, they may, in a sense, utilizetheir tribal sovereignty topreserve their differentness - even when tribal lawsare seemingly inapposite to American civil rights norms. Building on argumentspresented in a companionpiece, (Tribal) Sovereigntyand Illiberalism,this Article undertakes a critical examination of tribal governance in lightof changing international norms regarding good governance, whichincreasingly define the parameters of the obligations governments owe to theircitizens. Even in lightof the emergence ofgood governance and a rapidlyevolving human rights landscape, this Article posits that Indian nationsought to rejectconventional notions of good governance. It proposes, instead,good (Native) governance, which does not require that Indian nationseither fully depart from or emulate the West. Rather, this piece contends thatgood Nativegovernance mandates that tribal nations utilize Native principlesof government - drawn from tribal culture and tradition- that allowfor the evolution of tribal government in waysthat restore and maintainfairness, balance, and inclusionin tribalcommunities. It concludes thatgood Native governance is thebest way for tribes to facilitate self governance,protect tribal sovereignty, and ensuretheir continued cultural and po- liticalexistence.

* J.D., HarvardLaw School; B.A., Universityof Oklahoma. AssociateProfessor of Law,Southwestern Law School;Justice, Citizen Potawatomi Nation Supreme Court; Tribal HearingOfficer, Morongo Band of MissionIndians. This Articlebenefited greatly from presentationsat North Dakota School of Law and the Harvard Law School Native American Alumni EmergingScholars Forum. SouthwesternLaw School provided generousresearch support, and Kal Raustialaoffered important insights at the project's inception. Many thanksto KristenCarpenter, Tim Coulter,Michael Dorff,Matthew Fletcher,Phil Frickey, Bryant Garth, Carole Goldberg,Paul Horwitz,Austin Parrish, Gowri Ramachandran,Wenona Singel,Josh Swartz,and KevinWashburn for theircomments. Deep appreciationgoes to myoutstanding research assistants Alex Maleki, SoYun Roe, and Diana Webster,who made thisArticle possible. Finally, chi-megwetch to Cuauhtemoc Ortega and GrantMainland of the ColumbiaLaw Reviewfor theirhard workand beliefin this project. 1049

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Introduction 1050 I. Sovereignty's Evolution and the Rise of Good Governance 1055 A. The Post-TerritorialState and the Rise of the "Human Rights Culture" 1057 B. The Contours of Good Governance 1059 II. Toward a Theory of Good Native Governance 1061 A. Exit (and Entry) 1065 B. Dissent (Voice) 1074 C. Foundational Governing Principles 1080 D. Providingfor the Fair and Nonpolitical Resolution of Disputes 1083 E. Cultural Matching 1087 III. Examining Good Native Governance 1093 A. Traditional Indigenous Dispute Resolution Practices . . 1094 B. Undemocratic Forms of Governance 1099 C. Banishment 1103 IV. Enhancing Good Native Governance 1 107 A. Waivers of Sovereign Immunityin Tribal Courts for ICRA Claims 1108 B. Banishment 1113 V. Why Tribes Should Strive for Good Native Governance 1116 Conclusion 1 124

Introduction

Indian nations encompassed withinthe borders of the United States are free to be illiberal.1 That is, they are largely unconstrained by the U.S. Constitution,2and are only bound to follow provisions similar to those contained in the Bill of Rightsby statute.3 Even then, the Supreme Court has affirmedthat tribesare not required to apply or interpretindi- vidual civilrights protections directly in accordance withstate and federal

1. I employthe term "illiberal" here as it is used generallyin theliterature to indicate a governmentthat maintains policies, procedures, and/or rules inconsistent with those of a liberaldemocracy. For a more completediscussion of illiberalismand the relevant literature,see Angela R. Riley,(Tribal) Sovereigntyand Illiberalism,95 Cal. L. Rev. (forthcoming2007) (manuscriptat 9-15, on file with the ColumbiaLaw Review) [hereinafterRiley, Illiberalism]. 2. Althoughtribes are mentionedin the Constitution,the powersof the federal governmentvia theConstitution do not constrainthe actions of Indiantribes. See Robert N. Clinton,There Is No FederalSupremacy Clause forIndian Tribes, 34 Ariz.St. LJ. 113, 115 (2002) (contendingthat, because there is no SupremacyClause allowingfederal authorityover tribes,"there is no acceptable,historically-derived, textual constitutional explanationfor the exerciseof any federalauthority over Indian tribeswithout their consentmanifested through treaty"). 3. See Indian CivilRights Act of 1968 §§ 201-203, 25 U.S.C. §§ 1301-1303 (2000).

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governments.4Accordingly, they may, in a sense,use tribalsovereignty to preservetheir differentness - even when tribal laws are seeminglyinappo- site to Americancivil rights norms. This is the case even thoughtoday Indian tribesemploy hundreds of thousandsof Americans,5many of themnon-Indian,6 whose civil rights claims must be brought,if at all, in tribalforums.7 News reports coming from Indian countrydescribing, for example,the banishment of tribalmembers by politically motivated tribal councilsor theuse ofsovereign immunity by tribal governments to shield tribalbusinesses from employees' civil rights claims, exacerbate negative sentimentsregarding Indian nations'sovereignty and call into question tribalgovernmental legitimacy.8 Buildingon argumentspresented in a companionpiece, (Tribal)Sov- ereigntyand Illiberalism?this Article undertakes a criticalexamination of tribalgovernance in lightof changingnorms regarding the obligations of governmentto thepolity. Having previously asserted that greater expansion of federalcivil rights laws into tribalcommunities could potentially destroyindigeneity and itsconcomitantly distinct forms of governance,10 I nowaddress the loomingquestions that follow from such a position:If

4. See Santa Clara Pueblo v. Martinez,436 U.S. 49, 56, 71-72 (1978) ("As separate sovereignspre-existing the Constitution,tribes have historicallybeen regarded as unconstrainedby those constitutionalprovisions framed specifically as limitationson federalor stateauthority."). 5. Nat'l Indian GamingAss'n, Indian Gaming:An Analysisof the EconomicImpact of Indian Gamingin 2005, at 6, availableat http://www.indiangaming.org/NIGA_econ_ impact_2005.pdf(last visitedApr. 15, 2007) (on file with the ColumbiaLaw Review) [hereinafterNIGA, Indian Gaming](reporting that Indian gamingcreated over 600,000 jobs in 2005,with 236,000 of thosejobs situatedin Indiangaming and ancillaryfacilities). 6. See MatthewL.M. Fletcher,The ComparativeRights of IndispensableSovereigns, 40 Gonz.L. Rev.1,113 (2004) ("Manygaming tribes employ large numbers of non-Indians fromthe surroundingcommunity."). 7. See SantaClara Pueblo, 436 U.S. at 60-72 (holdingcivil rights actions against tribal governmentscan onlybe broughtin tribalforums, limiting federal courts to habeascorpus review). 8. See, e.g., ScottD. Danahy,License to Discriminate:The Applicationof Sovereign Immunityto EmploymentDiscrimination Claims Brought by Non-NativeAmerican Employeesof TriballyOwned Businesses,25 Fla. St. U. L. Rev. 679, 686-702 (1998) (arguingthat Congress should use itsplenary power to waive sovereign immunity of Indian tribesfor purposesof non-Indians'employment discrimination suits); RichardWarren Perry,Native American Tribal Gaming as Crime Against Nature: Environment, Sovereignty,Globalization, 29 PoLAR: Pol. & Legal AnthropologyRev. 110, 110-15, 124-27 (2006) (describingperception among non-Indiansthat tribal sovereigntyis problematic,as manifestedby their fear that expansion of tribalcasinos will "disrupt [ ] the managerialspatial order of suburbanhousing developments"); Joseph P. Kalt & Joseph WilliamSinger, Myths and Realtiesof Tribal Sovereignty:The Law and Economicsof IndianSelf-Rule 3 (JohnF. KennedySch. of Gov'tFaculty Research Working Paper Series, Paper No. RWP04-016,2004), availableat http://ssrn.com/abstract=529084(on file with the ColumbiaLaw Review)("[T]ribes as collectivesare seen by many non-Indiansas legitimateif theyact like privateclubs, but not if theyact like sovereigns."). 9. Riley,Illiberalism, supra note 1. 10. Id. (manuscriptat 64-85).

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tribesought not to be remadein theimage of thedominant society, how, as a normativematter, should tribal governments act? Or, in otherwords, to whatextent can Nativegovernance stray from that of a liberaldemoc- racyand neverthelessconstitute good governance? Good governance,it seems,is on the mindsof manythese days. In globalization'swake, we are enteringa new era of sovereigntyand a particular"human rights culture."11 Within this framework, the notionof "good governance"- commonlydescribed as a styleof governancethat includes,inter alia, "democracy,the rule of law, effectivebureaucracy, discretion,and decentralization"12- is beingpromulgated internationally and has become a core focalpoint of discoursein internationalaffairs.13 Debatesover good governanceabound in theinternational arena and, in some instances,highlight the enormity of a centralchallenge faced by the developedWest: how to exerciseinfluence in illiberalsocieties without destroyinglocal self-governanceand non-Westernculture altogether.14 A global debate concerningthe authority- and, indeed, the responsibil-

11. See Helen Stacy,Relational Sovereignty, 55 Stan. L. Rev. 2029, 2049 (2003) (discussingcharacteristics of humanrights culture). 12. See FrancisN. Botchway,Good Governance:The Old, the New, the Principle, and theElements, 13 Fla.J. Int'lL. 159,161-62 8c n.13 (2001). Botchwayargues that these elements"have sufficient capacity to accommodate"additional principles often associated withgood governance,such as "transparency,accountability, anticorruption, civil society, humanrights and others."Id. at 162. 13. See, e.g.,Eva Poluha 8cMona Rosendahl,Introduction: People, Power and Public Spaces, in Contesting'Good' Governance:Crosscultural Perspectives on Representation, Accountabilityand Public Space 1, 1-3 (Eva Poluha & Mona Rosendahl eds., 2002) (lookingcritically at questionof whetherstandards for "good governance"as set forthin internationalaffairs dialogue are, or oughtto be, definitive). 14. See, e.g., Antony Anghie, Imperialism,Sovereignty, and the Making of InternationalLaw 248-49 (2004) [hereinafterAnghie, Imperialism] (critiquing seemingly neutralglobal expansion of good governanceas "merelyreplicat[ing] the 'civilizing mission'that has been such a prominentfeature of the internationalrelations system at least since the timeof Victoria");Linda C. Reif,Building Democratic Institutions: The Role of National Human RightsInstitutions in Good Governanceand Human Rights Protection,13 Harv.Hum. Rts.J. 1, 3 (2000) (investigating"how national human rights institutions"associated with democracy "can improvegovernment administration and promoteand protecthuman rights,and therebybuild good governance");Madhavi Sunder,Enlightened Constitutionalism, 37 Conn. L. Rev. 891, 904 (2005) [hereinafter Sunder, Enlightened] (arguing,with respect to Arab countriesin particular,that independencein developmentof constitutionalsystem is desirable,but that complete deferenceby outsidersmay amount to "throwingthe weightof the Weston the side of traditionalistsat the expenseof internalreformers seeking greater rights for women and minorities").Sunder respondsto Noah Feldman,who arguesfor a relativelyhands-off approachby the internationalcommunity with regard to constitutiondrafting. See Noah Feldman,Imposed Constitutionalism,37 Conn. L. Rev. 857, 887-88 (2005) [hereinafter Feldman,Imposed] ("[W]herethe international community or theoccupier lacks the will or capacityfor sustained transformation of constitutionalnorms over time,it would be mistakento imposenorms that are perceivedby local politicalactors as antitheticalto their interests.").

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ity15- of liberalnations to remakeilliberal ones in theirown image has accompanied the rise of good governancetheory. The catastrophic eventsof September11th acceleratedthis desire for reform,and the worldhas witnessedthese philosophical and politicalbattles play out in the invasionof Afghanistan,16 the constitution-draftingprocess in Iraq,17 and theAmerican-facilitated democratization of Palestinethat ultimately led to the electionof Hamas.18 Curiously,for all the talkof good governanceon an international level, there is no scholarshipthat has directedthis inquiryinward. I mean thisin tworespects. First, the relationshipbetween the U.S. governmentand Indiannations could benefitfrom many of thesame discus- sionswhich circulate around the treatmentof foreignsovereigns by the United States. Much of the debate over the extentto whichthe West oughtto allowforeign states to evolveinternally, as opposed to imposing Westernliberal ideals on them,maps onto the relationshipbetween the federalgovernment and Indian tribes. But it is not onlythe relationshipbetween Indian nationsand the UnitedStates that has been omittedfrom the good governancedialogue. Tribal nations- themselvesgovernments with constitutions, judiciaries, and governmentalinfrastructures often as vastand complexas thoseof manysmall nations19 - have not been examinedin lightof good governance standards.That inquiryis the core focusof thisArticle. I seek to criticallyexamine good governanceas it relatesto Indian nations.After all, thoughno one has expresslymade thisconnection in the literature, manyof the contemporarycriticisms waged againstIndian tribesare rootedin old fearsthat tribal governments are illegitimate,hostile to out-

15. See Thomas M. Franck,Are Human RightsUniversal?, Foreign Aff., Jan. /Feb. 2001,at 191,203 (arguingthat it would be "immoral"for West to waitfor illiberal nations to changefrom within, rather than seeking to change themfrom without). 16. See Karen Engle, Liberal Internationalism,Feminism, and the Suppressionof Critique:Contemporary Approaches to Global Orderin the UnitedStates, 46 Harv.Int'l LJ. 427, 431 (2005) (notingthat one rationalefor invasion of Afghanistanwas to oust Taliban,which had committedhorrible human rights abuses against women in particular). 17. See Feldman,Imposed, supra note 14, at 877-79 (describingconflicts over constitution-draftingprocess in Iraq). 18. See Fareed Zakaria,The Futureof Freedom: IlliberalDemocracy at Home and Abroad119-20 (2003). Zakarianotes that Yasser Arafat's to PresidentClinton's response " insistencethat he signon to the Camp David peace plan was to the effectthat, 'If I do what you want, Hamas will be in power tomorrow."' Id. Eventually,Hamas was democraticallyelected to powerin Palestine.See infranote 352. 19. See generallySuzan ShownHarjo, The WallStreet Journal 's Drumbeat:Is This the Way TerminationStarted?, Indian CountryToday (Canastota,N.Y.), Sept. 20, 2002, availableat http://www.indiancountry.com/content.cfm?id=1032530449(on filewith the ColumbiaLaw Review)(comparing some tribalnations to smallstate of Monaco, noting that manyexceed Monaco in land mass,population, and resources).In termsof geography,a fewtribes are substantiallylarger than some of America'ssmaller states. "The Navajo Nation,for example, is approximatelyequal in size to WestVirginia, 24 timeslarger than Rhode Island, 12 timeslarger than Delaware,and 4 timeslarger than Hawaii." Kalt & Singer,supra note 8, at 10 n.18.

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siders,and simplytoo farafield from mainstream Western culture to be tolerated.20In short,there is an increasinglygrowing perception that tribal governmentsare, in fact,not "good."21 Today,tribal nations are evermore prominent in thenational arena, as both theirindependence from federal paternalism and interdepen- dence withnon-Indian sovereigns, such as statesand local communities, grow.Tribes' status in our contemporaryworld further supports the connectionbetween internal notions of good governanceand international ones. Otherlegal scholarshave also drawnon the relationshipof Indian tribesas "domesticdependent nations"22 vis-a-vis the UnitedStates to il- lustratethe increasinginterdependence of all theworld's sovereigns. As JudithResnik writes: "Today, it is plain thatwe all live in 'domesticde- pendentnations,' vulnerable to forcesalso claiming(and sometimesex- ercising)power in thesame space."23Thus, an examinationof good governanceas relatedto Indian nationsmay be bothinformed by, and hold implicationsfor, global good governancestandards. Even in lightof the changinghuman rights landscape, I contendin thisArticle that Indian nationsought to rejectconventional notions of good governance.I propose,instead, a theoryof "good Nativegovern- ance," whichdoes not require that Indian nationseither fully depart fromor emulatethe developedWest. Rather,a theoryof good Native governancedraws on indigenousprinciples of government- based on each tribe'stradition and contemporarytribal culture - thatallow for the

20. A briefsurvey of Americanlegal historyalone reflectssuch beliefs. See, e.g., MajorCrimes Act of 1885,18 U.S.C. § 1153 (2000); IndianCivil Rights Act of 1968,Pub. L. No. 90-284,82 Stat. 77 (codifiedas amended at 25 U.S.C. § 1302 (2000)); Oliphantv. SuquamishIndian Tribe, 435 U.S. 191,210-11 (1978) (holdingthat Indian tribesdid not have criminaljurisdiction over non-Indianspartly due to concernsover "unwarranted intrusionson [non-Indians']personal liberty," and referringto 1800s-eraHouse Report whichsaid "mostIndian tribeswere characterized'by a want of fixed laws [and] of competenttribunals of fixed justice'" (citingH.R. Rep. No. 23-474,at 18 (1834))); see also infranotes 26, 28 (elaboratingon historicalbackground and purposeof MajorCrimes Act and Indian CivilRights Act) . 21. See Riley,Illiberalism, supra note 1 (manuscriptat 4-5) (discussingrecent wave of scrutinyand criticismof tribal governments).This perception is fueling greater encroachmentinto tribalsovereignty in a myriadof ways. See, e.g., Wenona T. Singel, Labor Relationsand TribalSelf-Governance, 80 N.D. L. Rev.691, 691 (2004) (discussing San Manuel Indian Bingo & Casino,341 N.L.R.B. 1055 (2004), whichheld, contraryto decades of establishedlaw, that on-reservation,tribally-owned casino was subject to NationalLabor RelationsBoard's jurisdiction under NationalLabor RelationsAct) ; see also San Manuel Indian Bingo 8c Casino v. NLRB, 475 F.3d 1306, 1315 (D.C. Cir. 2007) (holdingthat NLRB could applyNLRA to casino,thus denying tribe's petition for review). 22. CherokeeNation v. Georgia,30 U.S. (5 Pet.) 1, 17 (1831) (holdingthat Indian tribesare "domesticdependent nations,"acknowledging their preexistingaboriginal sovereigntyas wellas theiroverarching connection to UnitedStates). 23. JudithResnik, Tribes, Wars, and theFederal Courts: Applying the Mythsand the Methodsof Marburyv. Madisonto TribalCourts' Criminal Jurisdiction, 36 Ariz.St. LJ. 77, 134 (2004) [hereinafterResnik, Tribes].

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evolutionof tribalgovernment in waysthat restore and maintainfairness, balance,and inclusionin tribalcommunities. In PartI of thisArticle, I providean introductionto the legal status of Indian nationsand then brieflysketch out the connectionbetween tribalgovernance and the rapidlyevolving global standardof good governance. I thenmove the discussionof governanceto the global arena and broadlycanvass sovereignty's recent metamorphosis from the strict, Westphalianmodel to a post-territorialconception of sovereignty,one thatis inextricablybound to the riseof our "humanrights culture."24 As partof thisdiscussion, I explain the genesisand promulgationof good governanceas the standardby which all sovereignsare increasingly judged. I thenunpack and critiqueconventional notions of good governance, drawingon literaturethat seeks to connectgood governancewith itscolonial and imperialisticroots. Havinglaid the groundworkfor good governance,in PartII I draw thediscussion back within the confines of theUnited States and propose, in contrastto the burgeoningglobal standard,an alternativetheory of good governancespecifically applicable to Indian nations: goodNative governance.Drawing on politicaltheory and empiricalstudies, I set forth a taxonomyof good Nativegovernance, which includes: exit,dissent, foundationalprinciples, independent forums for the resolutionof disputes,and culturalmatching. Expounding on theseterms, I also demonstratethat good Nativegovernance is alreadylargely at workwithin many contemporaryIndian nations. PartIII thenanalyzes select examples of practiceswithin Native communities that constitute good Nativegovern- ance, but thatlikely would not pass musterunder the emergingglobal standard. In contrastto Part III, Part IV providesspecific examples of areas whereI believeNative governance could be enhancedwithin tribal communities.Finally, in arguingagainst increased encroachment on indigenousnations, Part V laysout twomajor justifications for tribes to engage in good Nativegovernance on theirown accord. Withinthis discussion,I contendthat the growingconception of good governanceshould be criticallyexamined and thatit should not be imposedwholesale on the indigenouspeoples of the world. I conclude thatif one acceptsthe theoryof good Nativegovernance, such acceptancemay have vast implicationsfor definingrelationships between other interdependent sover- eignssituated beyond U.S. borders.

I. Sovereignty'sEvolution and the Rise of Good Governance

The preconstitutionalstatus of Indiannations places themfirmly beyond the scope of the U.S. Constitutionand the Bill of Rights.25As a result,tribal governments have long caused concernfor the dominant

24. Stacy,supra note 11, at 2049. 25. See infraPart II.

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society,26and these worrieshave intensifiedin recent years.27Even thoughCongress extended a portionof theBill of Rightsto Indian tribes by statutethrough the Indian CivilRights Act (ICRA) of 1968,28critics remainskeptical of the scope of civilrights protections afforded to both Indiansand non-Indiansin tribalcommunities, particularly because federal courtreview of tribalcourt decisions is limitedto petitionsfor habeas corpus.29This meansthat civil rights cases broughtagainst tribal governmentsare solelywithin the jurisdiction of the tribalcourts.30 Given the increasingattention paid to individuals'claims against tribalgovernments,the unique statusof tribeswithin the federal system raises pressing questionsfor liberal theorists and policymakers.Specifically, to whatex- tentmay Native governments deviate from that of a liberaldemocracy and, nevertheless,be "good?" Correspondingly,to whatextent should such deviationsbe toleratedby the liberalstate? To answerthese questions,it is criticalto firstexamine changing conceptionsof sovereigntyand the correspondinglink to an internationalhuman rights agenda thathas become the foundationfor a flour- ishingglobal consensusregarding good governance.Of particularimport is an analysisof how human rightshave bestowedupon good governancea readilyacceptable legitimacyin internationalaffairs discourse,even thoughthe impositionof good governancemay, in fact,be ill suitedto all sovereigns.This preliminarydiscussion lays the groundworkfor a broaderexplanation of the relevanceof good governanceto Indiannations, and setsthe stage for contemplation of a new,indigenous governancetheory.

26. See, e.g.,Major Crimes Act, 18 U.S.C. § 1153 (2000), passedlargely in responseto Ex parteCrow Dog, 109 U.S. 556, 571-72 (1883), in whichthe SupremeCourt held that thetribe had exclusivejurisdiction over a crimecommitted by an Indianin Indiancountry. CrowDog caused greatcontroversy because the penaltyimposed by the Sioux forCrow Dog's murderof SpottedTail - $600, eighthorses, and one blanketfrom Crow Dog's relativesto SpottedTail's relatives- was based on traditionalSioux practices.See Sidney L. Hairing,Crow Dog's Case: A Chapterin theLegal Historyof Tribal Sovereignty, 14 Am. Indian L. Rev. 191, 199 (1989). Reformerswere outragedand convincedCongress to extendfederal criminal jurisdiction to Indian country.Id. at 192. 27. See Riley,Illiberalism, supra note 1 (manuscriptat 4-5). 28. Pub. L. No. 90-284,82 Stat.77 (codifiedas amendedat 25 U.S.C. § 1302 (2000)). "[A] centralpurpose of ICRA . . . was to *secur[e]for the AmericanIndian the broad constitutionalrights afforded to other Americans,'and therebyto 'protectindividual Indiansfrom arbitrary and unjustactions of tribalgovernments.'" Santa Clara Pueblo v. Martinez,436 U.S. 49, 61 (1978) (quotingS. Rep. No. 90-841,at 5-6 (1967)). 29. Santa ClaraPueblo, 436 U.S. at 66-67; see also MadhaviSunder, Cultural Dissent, 54 Stan. L. Rev. 495, 559-60 (2001) [hereinafterSunder, Dissent] (criticizingCourt's decisionto protecttribal sovereignty over equality interest of plaintiff). 30. Santa Clara Pueblo,436 U.S. at 61.

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A. The Post-TerritorialState and theRise of the "Human RightsCulture" A briefsurvey of the recentwave of literatureregarding sovereignty revealsthat global conceptionsof sovereigntyare changing.31There are now a significantnumber of legal scholarswhose work is devotedto de- tailingits evolution,32 with one callingsovereignty "the new obsession."33 Globalizationis oftencredited with fueling these transformations,34 and is said to "provide[ ] the conditionsto constitutea thirdrevolution in sovereignty."35Globalization, of course, is not new. Informationhas been movingaround the world - in manycases, from East to West,rather thanotherwise - forthousands of years.36 But the modernage of global- izationhas usheredin revolutionarychanges that were inconceivable in the past.37 Giventhe expansiveness of the transformationsunderway, it appears thatsovereignty faces greater challenges in the modernera than it has ever before.38Globalization of our technologicalworld promises(or threatens)to connectus acrosstime, space, and borders.39This phenom- enon is minimizingthe nation-state,and, concomitantly,its relevance.40

31. See generallyAbram Chayes & AntoniaHandler Chayes,The New Sovereignty: Compliance with InternationalRegulatory Agreements (1995); Stephen D. Krasner, Sovereignty:Organized Hypocrisy (1999); SaskiaSassen, Losing Control? Sovereignty in an Age of Globalization(1996). 32. See, e.g., Harold Hongju Koh, The Globalizationof Freedom,26 Yale J. Int'l L. 305, 306-08 (2001) (reviewingrise of transnationalpublic law concurrentwith worldwide integrationof "domestic and internationalprocesses and events"); Kal Raustiala, Rethinkingthe Sovereignty Debate in InternationalEconomic Law, 6 J. Int'l Econ. L. 841, 843, 878 (2003) [hereinafterRaustiala, Rethinking] (examining conceptions of sovereigntyand "offering. . . thoughtson the evolutionof sovereigntyin a globalizing world");Anne-Marie Slaughter, Sovereignty and Powerin a NetworkedWorld Order, 40 Stan.J. Int'l L. 283, 283 (2004) ("Theorists,pundits, and policymakersall recognizethat traditionalconceptions of sovereigntyare underassault. The resultis a seeminglyendless debate about the changingnature of sovereignty."). 33. Stacy,supra note 11, at 2039. 34. See, e.g., id. at 2030. 35. Id. (distinguishingthis revolutionfrom two other historicalconceptions of sovereigntyput forward by Hobbes and Locke); cf.Madhavi Sunder, Piercing the Veil, 112 Yale LJ. 1399, 1407 (2003) (referringto "rise of religionand culture as the New Sovereignty"). 36. See AmartyaSen, How toJudge Globalism, Am. Prospect, Jan. 1, 2002,available at http://www.prospect.Org/print/V13/l/sen-a.html(on filewith the ColumbiaLaw Review). 37. See, e.g., Raustiala,Rethinking, supra note 32, at 874-75 ("Technological,social, and institutionalchanges have all transformedthe world of thetwenty-first century in ways thatwere likely unimaginable in the eighteenthcentury."). 38. See id. (notingwidespread belief that changes in modern era have created significantchallenges to traditionalconceptions of sovereignty). 39. See Paul SchiffBerman, From InternationalLaw to Law and Globalization,43 Colum. J. Transnat'l L. 485, 491, 511-18 (2005) (arguing for studyof "law and globalization"as means of understanding"people's relationshipsto conceptssuch as space, place, borders,distance, and communityaffiliation"). 40. See Stacy,supra note 11,at 2043. Some theoristseven argue the state as an entity per se has outlivedits usefulness. See, e.g., Rosa EhrenreichBrooks, Failed States,or the

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As such, today there is a move awayfrom a strict,territorial conception of sovereignty,one that "has never been absolute and is increasinglycom- promised."41 The rise in extra-territorialrelations, including the expansion of transnationaland international administrativeand judicial entities, furtherchallenges the notion of absolute territorialborders.42 Just as, for example, those accused of crimes against humanityare potentially subject to prosecution in internationalor foreign courts,43it is increas- inglyevident that "the precise contours of both extraterritorialadjudica- tion and nation-statesovereignty are in flux."44 This does not mean that the nation-statehas lost its importance withinthe global political framework,45but it is clear that globalization has diminished its significance.46As nation-states'territoriality decreases, there is a correlativerise in the focus on citizens' rightsand claims against the government.47This new vision of sovereignty"places a higher obliga- tion on the sovereign state to care for and regulate the behavior of its citizens both inside and outside state borders."48 As Helen Stacy argues, the language of sovereigntyhas been modified by today's "human rights culture,"49such that "human rights have become the language with which people, groups, and even nation-states,frame their requests for better treatmentfrom others - whetherthose others are citizens,governments,international capital, or neighbors."50 As such, sovereigntyhas to account for "the enlarging role of internationalhuman rightsnorms as

State as Failure?,72 U. Chi. L. Rev. 1159, 1172-74 (2005) (describingfailure of state model). 41. See Kal Raustiala,The Geographyof Justice,73 FordhamL. Rev. 2501, 2513 (2005); see also Austen L. Parrish,Changing Territoriality, 31 Am. Indian L. Rev. (forthcoming2007) (manuscriptat 13, on filewith the ColumbiaLaw Review)("In recent years,the salience of the sovereign state, strictly defined by its territorial borders, has slowly declined."). 42. See Paul SchiffBerman, The Globalizationof Jurisdiction, 151 U. Pa. L. Rev.311, 329, 476-86 (2002) [hereinafterBerman, Globalization] (describing effects of transnationaland supranationalentities on territorialconceptions of sovereigntyand nationality). 43. Id. at 318. While I was writingthis Article, for example,a heavilyAmerican- influencedIraqi courtsentenced Saddam Husseinto deathby hanging after finding him guiltyof crimesagainst humanity. Iraqi CourtSentences Hussein to Death, N.Y. Times, Nov. 6, 2006,at A2. 44. Berman,Globalization, supra note 42, at 329; see also AustenL. Parrish,Trail SmelterDeja Vu: Extraterritoriality,International Environmental Law, and theSearch for Solutionsto Canadian-U.S.Transboundary Water Pollution Disputes, 85 B.U. L. Rev.363, 380-402 (2005) (describingerosion of traditionallimits on personaljurisdiction and enforcementof foreignjudgments in UnitedStates and Canada). 45. Stacy,supra note 11, at 2044 ("Sovereignty,in fact,is farfrom receding. ). 46. See Brooks,supra note 40, at 1182. 47. See Stacy,supra note 11,at 2035,2048-51 (describingshift from territorial notion of sovereigntyto conceptionbased on rightsof citizens). 48. Id. at 2050-51. 49. Id. at 2049. 50. Id.

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benchmarksof good governanceand good sovereignty."51This means thatrespect for individual human rightsis now considereda necessary counterpartto sovereignty.52

B. The Contoursof Good Governance As the previoussection details, sovereign duties, now in a stateof flux,are increasinglyconnected to humanrights and good governance. Althoughgood governancelacks an authoritativedefinition, leading internationallaw scholarsassert that there is a global consensusas to its generallyaccepted meaning.53It is, as one authorstates, a "capacious term"54that characterizes a "governmentwhich is, among otherthings, democratic,open, accountableand transparent,and whichrespects and fostershuman rights and the rule of law."55Although many facets of internationallaw are associatedwith good governance,56its inextricable connectionto internationalhuman rights is particularlysignificant.57 In- creasingly,the presenceand adoptionof humanrights norms is considered a necessarycomponent of achievinggood governance,58which is believedto have positiveconsequences for all people.59 While good governancehas gained wide acceptance in manyrespects,it has also- like "liberalinternationalism"60 generally and the internationalhuman rightsmovement more specifically- inspired intense

51. Id. at 2044. 52. Id. at 2050 ("Sovereigntyand humanrights thus develop pari passu"). 53. See, e.g., Thomas M. Franck,Democracy, Legitimacy and the Rule of Law: Linkages16 (N.Y. Univ. Sch. of Law, Pub. Law & Legal TheoryWorking Paper Series, WorkingPaper No. 2, 1999),available at http://papers.ssrn.com/sol3/papers.cfmPabstract _id=201054(on file with the ColumbiaLaw Review)[hereinafter Franck, Democracy] ("Today, almost everyoneknows, or could know, the essential elements of good governance."). 54. AntonyAnghie, Civilization and Commerce: The Concept of Governancein HistoricalPerspective, 45 Vill. L. Rev. 887, 893 (2000) ("'Good governance'is, like 'development'before it, a capaciousterm which has a numberof meanings."). 55. Anghie,Imperialism, supra note 14, at 248; accord Poluha & Rosendahl,supra note 13, at 2 ("In internationaldiscourse 'good governance'comprises aspects such as transparency,accountability, free and fairelections and the rule of law."). 56. Anghie,Imperialism, supra note 14,at 248 ("[T]he conceptof 'good governance' is in some sensesa termwhich combines a numberof differentareas and principlesof internationallaw."); see also Daniel C. Esty,Good Governanceat theSupranational Scale: GlobalizingAdministrative Law, 115 Yale LJ. 1490, 1501 (2006) ("[T]he argumentfor supranationalgovernance is an extensionof the logic of internationallaw."). 57. Anghie,Imperialism, supra note 14, at 248 ("[G]ood governanceis linkedvery prominentlywith international human rights law ...."). 58. See id. (pointing to definitionsof "'good governance'"based in part on "respect[] [for]. . . humanrights"). 59. See Stacy,supra note 11, at 2059 ("The efficacyof the internationalsystem of humanrights brings benefits to the citizensof each nationstate ...."). 60. See Kal Raustiala, The Architecture of International Cooperation: TransgovernmentalNetworks and theFuture of InternationalLaw, 43 Va.J. Int'lL. 1, 2-3, 17-19 (2002) ("Yet the prevailingform of cooperationin the 20th century,known as liberalinternationalism, has increasinglycome underattack.").

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criticism.61Critics charge that good governanceserves as anotherform ofWestern hegemony,62 advances a similar"civilizing mission" to coloni- zation,63and acts as a ruse foropening up the marketsof the worldto bringeven greaterriches to the developedWest.64 In his extensivework in thearea, Antony Anghie has challengedthe notionthat good governanceis whollyneutral and containsbenefits for all humankind.65By pointingout itscomplex colonial rootsand its en- tanglementwith Western imperialism, he assertsthat good governance was formulatedto advance an acceptable governancescheme for the globalizedworld.66 In orderto givegood governancethe credibility necessaryfor expansion, its proponents connected it to theincreasing applicationof internationalhuman rights law.67 In thissense, Anghie claims, proponentsadvance good governancetoday similarly to how conceptsof developmentwere promoted in thepast.68 That is, all peoples and socie- tiesare assumedto long forgood governance,much in the same wayit

61. Cf. David Kennedy,The Dark Sides of Virtue: ReassessingInternational Humanitarianism296-323 (2004) (layingout "darksides" of internationalhumanitarian law). Even withinthe contextof a critiqueof good governanceand the role of the developedWest in itspromulgation, I agree it wouldbe a disservicenot to recognizethe positivethings America has soughtto achievewith regard to humanrights. See Harold HongjuKoh, Foreword: On AmericanExceptionalism, 55 Stan.L. Rev.1479, 1489 (2003) [hereinafterKoh, Exceptionalism](noting criticsof Americanexceptionalism often "overlook"instances of exceptionalU.S. leadershipin humanrights). 62. See Jed Rubenfeld,Commentary, Unilateralism and Constitutionalism,79 N.Y.U. L. Rev.1971, 2015 (2004) [hereinafterRubenfeld, Unilateralism] ("According to a familiar left-wingcritique of globalization,multilateral forces such as the InternationalMonetary Fund (IMF) and the WTO are chokingoff the freedomof developingcountries to chart theirown, differing economic, cultural, and social paths."). 63. Anghie, Imperialism,supra note 14, at 249-50 (internalquotation marks omitted). 64. See id. at 263 & n.60. This criticismis due, in part,to the role of international financialand developmentinstitutions in advancingthe case forgood governance.See Botchway,supra note 12, at 164-65 ("It is hardlycontrovertible that the principleor conceptof good governance,as understoodin the 1990s owes its flourishlargely to the internationalfinancial and developmentinstitutions. It is,however, misleading to saythat the idea was conceivedor originatedfrom these bodies."). 65. See Anghie,Imperialism, supra note 14, at 248-49 ("At the nationallevel, the conceptof good governance,particularly because of itsreliance on universalinternational humanrights norms, may appear to be a neutralconcept that is potentiallyapplicable to all states.").For a detaileddiscussion of the critique of good governance,see id. at 245-72. 66. See id. at 253-54 ("[Governance is now designed to provide the political institutionsthat will enable the furtheranceof globalization.Specifically, this is to be achieved throughthe internationalhuman rightsnorms that are seen as prescribing universallyaccepted internationalstandards and whichare used as a basis to further governance."). 67. Id. at 254 ("'[G]ood governance'[has been] . . . conceptuallyand operationally linked withinternational human rightslaw and . . . enjoysa certainlegitimacy and coherenceas a result"). 68. See id. at 247 (analogizingdiscourses of "good governance"and "development").

This content downloaded from 128.97.244.188 on Wed, 11 Jun 2014 19:14:16 PM All use subject to JSTOR Terms and Conditions 2007] GOOD (NATIVE) GOVERNANCE 1061 was assumed that all peoples desired development.69 In reality,however, the of is of a in which promotion good governance part larger agenda" good governance "merelyreplicates the 'civilizingmission' rooted in the "imperial character of internationallaw."70 Anghie argues that Western states' "promot[ion] [of] 'good governance'" holds potentiallygrave consequences for developing countries because the goal is to "reproduc[e] in the Third World a set of principles and institutionswhich are seen as having been perfected in the West, and which the non-European world must adopt if it is to make progressand achieve stability."71The effectof this strategyis to furthertrade and "civilization,"ignoring the consequences for self-ruleand local culture so that the developed West can advance its interests.72

II. Toward a Theory of Good Native Governance

Though discourse concerning good governance is prominent in the internationalarena, there has been virtuallyno effortto turn the good governance frameworkinward. The literaturein this field is largelyfo- cused externally,and thus omits any discussion of the parallels between America's relationship to foreign sovereigns and its connection with internal, indigenous nations. This is particularlycurious given that pressing issues, such as the conflictbetween sovereign autonomy and individual rights,for example, have particular relevance to America's relations with both external and internal nations. But, more directlyrelevant to the project undertaken here, there has been virtuallyno examination of how principles of good governance play out as applied to the relationship between tribal nations and the polity. Such an inquiryis overdue. Afterall, the core of contemporarycriticisms waged against tribalgovernments is based on the perception that Indian nations are unfair to outsiders,ignore or suppress their members' individual liberties,and rule withoutaccountability.73 Quite simply,the sug-

69. See id. at 247 ("Likedevelopment . . . 'good governance'has a verypowerful and apparentlyuniversal appeal: all peoples and societies would surely seek good governancein much the same waythat all peoples and societieswere seen as desiring development"). 70. Id. at 249-50. 71. Id. at 249. 72. See id. at 252-53 (notingthat "expansion of European commerce"was used to "effect[ ] the entryof the backwardpeoples into the world of civilization"and that "[h]umanitariangoals were furthered precisely through the expansion of commerce,and appropriatesystems of governmenthad to be formulatedfor this purpose"). 73. See, e.g.,Danahy, supra note 8, at 702 ("It is contraryto all notionsof fairness that plaintiffs[with sexual harassmentclaims] are denied legitimatelegal claims merely because theiremployers are NativeAmerican tribes."); Paul Porter,A Tale of Conflicting Sovereignties:The Case AgainstTribal SovereignImmunity and Federal Preemption DoctrinesPreventing States' Enforcementof Campaign ContributionRegulations on Indian Tribes,40 U. Mich.J.L. Reform191, 215 (2006) (M[T]heAgua Calientetribe's abilityto flout[California's campaign contribution disclosure law] and make otherwise illegalcampaign contributions infringes on California'ssovereignty, substantially affects

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gestion is that,in contrastto liberal democracies, tribalgovernments are illiberal, and, therefore,not "good."74 As an initial matter,I contend that the vast majorityof evidence- often ignored by critics- indicates that many Indian nations are already engaged in good governance.75 But where tribal governance deviates from that of the dominant cultureas it sometimes does - I assert that the misguided perceptions of outsiders must be countered withan alter- nate theoryof governance to combat the familiarcalls for assimilation and homogenization of indigenous nations. Thus, I put fortha theoryof good Native governance,which is criticalto Indian nations' effortsto survive as culturally distinct political entities within the confines of the United States. This is because the dominant culture continues to en- croach on Native sovereigntyin a myriadof ways.76 But encroachment through law and the corresponding attack on tribal sovereigntyconsti-

the fairnessof elections for all, and does not protect tribalself-sufficiency."); see also Tom Kizzia, Whose Law and Order? Tribal Courts Fill Void Left by State, but CriticsFear Rights May Be Lost, Anchorage Daily News,July 3, 1997, at Al ("More stridentcritics say the tribal court systemis reminiscentof racial Justice' in Southern statesbefore Congress stepped in withfederal oversight."); Barb Lindsay, Editorial, Sovereign Immunityfor Tribes is a 'Get Out ofJail Free' Card, Seattle Post-Intelligencer,May 7, 1998, at A15 ("[T]he decisions and actions of tribalgovernments have a veryreal and negative impact on our lives,our homes - and our rights impacts that we cannot simply ignore, and because of tribal sovereign immunity,impacts we cannot do anythingto mitigate or prevent."). These depictions of tribalgovernments have been prevalentfor decades. See generallyJoseph de Raismes, The Indian Civil RightsAct of 1968 and the Pursuit of Responsible Tribal Self-Government,20 S.D. L. Rev. 59, 70 (1975) (describing tribalgovernments, in context of ICRA, as "corrupt littletyrannies, with little accountability either to the individual Indian people ... or to the culture and traditionsof the tribes"). 74. See supranotes 19-21 and accompanyingtext. 75. See, e.g., BethanyR. Berger,Justice and the Outsider: Jurisdictionover Nonmembersin TribalLegal Systems,37 Ariz.St. LJ. 1047,1074-79 (2005) (showingthat decisionsof Navajo appellatecourts are evenlybalanced for and againstoutsiders whose claimsare litigatedthere); Carole E. Goldberg,Individual Rights and TribalRevitalization, 35 Ariz.St. LJ. 889, 896 (2003) [hereinafterGoldberg, Revitalization] ("A comprehensive studyof reportedtribal decisions addressing due processrights has concludedthat tribal courtsrarely use eithercustom and traditionor interpretationsof tribalconstitution and code provisionsto departfrom the applicationsof due processfound in stateor federal law."); NellJessup Newton, Tribal Court Praxis: One Year in the Life of TwentyIndian TribalCourts, 22 Am. Indian L. Rev.285, 352-53 (1998) (analyzingtribal court opinions and contendingtribes have been successfulin meldingtribal and Westernlaw in legal decisionmaking). 76. See, e.g., RobertB. Porter,Pursuing the Path of Indigenizationin the Era of EmergentInternational Law Governingthe Rights of Indigenous Peoples, 5 Yale Hum. Rts. & Dev. LJ. 123, 130 (2002) [hereinafterPorter, Pursuing the Path] (contendingthat "extraordinaryforces of assimilation" have placed indigenouspeoples' culturalexistence at risk);Angela R. Riley,"Straight Stealing": Towardsan IndigenousSystem of Cultural PropertyProtection, 80 Wash. L. Rev. 69, 113, 116 (2005) [hereinafterRiley, Straight Stealing](arguing that Native peoples' culturalsovereignty is under particularthreat in age of burgeoningglobalization and massivetechnological advancements that threaten culturalproperty and traditionalknowledge of indigenouspeoples).

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tutes a particular threat.77When actions of the courts and Congress di- minish tribal sovereignty,tribes are pushed closer and closer to cultural and political annihilation. As prominent Indian law scholars have pointed out: "Tribal sovereigntyis notjust a legal fact;it is the life-blood of Indian nations. This is obviouslytrue in the political sense: Without self-rule,tribes do not exist as distinctpolitical entities within the U.S. federal system."78I would take this contention a step furtherand posit that, without self-rule,tribes will not only disappear as political entities withinthe United States, theymay cease to exist altogether.79 A theory of Native governance is, nevertheless,somewhat elusive. With over 500 federallyrecognized Indian tribes in the United States- many of which share fewcommonalities in termsof language, traditional structure,resources, religious practices,and geography80- it would be a disserviceto Indian nations and theirindividual governmentalsystems to attemptto overlayonto this diverse landscape a rigid frameworkof good Native governance. In fact,it would implya requisite level of homogene- ity within tribal government that does not now- nor, I argue, ever should- exist. Therefore,in contrastwith good governance theory,I re- sist the urge to produce a definitivelaundry list of factorsthat must be

77. See, e.g., MatthewL.M. Fletcher,The SupremeCourt and FederalIndian Policy, 85 Neb. L. Rev.121, 129 (2006) (contendingthat "[Supreme] Court's federal common law cases oftencontravene express federal Indian policy"and thatthis has creatednegative resultsfor tribes); Philip P. Frickey,A CommonLaw forOur Age of Colonialism:The JudicialDivestiture of IndianTribal Authority over Nonmembers, 109 Yale LJ. 1, 7 (1999) [hereinafterFrickey, Common Law] (explaininghow SupremeCourt decisions,rather than congressionalaction, have eroded tribalsovereignty); Philip P. Frickey,(Native) AmericanExceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 484 (2005) [hereinafterFrickey, Exceptionalism] (arguing that Supreme Court's dominant role in settingIndian policy has resultedin confusingand inconsistentbody of law that is ultimatelyharmful to tribalsovereignty); David H. Getches,Beyond Indian Law: The RehnquistCourt's Pursuit of States'Rights, Color-Blind Justice and MainstreamValues, 86 Minn.L. Rev.267, 267, 282-83 (2001) (contendingthat Supreme Court has made "radical departuresfrom the established principles of Indian law" in itsunrelenting attack on tribal sovereignty);Joseph William Singer, Canons of Conquest: The SupremeCourt's Attack on TribalSovereignty, 37 New Eng. L. Rev.641, 643 (2003) ("Overthe lasttwenty years, the SupremeCourt has led a massiveassault on tribalsovereignty."); Gloria Valencia-Weber, The SupremeCourt's Indian Law Decisions: Deviationsfrom Constitutional Principles and the Craftingof JudicialSmallpox Blankets, 5 U. Pa. J. Const. L. 405, 409 (2003) ("Today,the eviscerating potential of theCourt's Indian law decisions provokes a real and palpablefear among tribalnations for their future existence."). 78. Kalt& Singer,supra note 8, at 4. 79. See Riley,Illiberalism, supra note 1 (manuscriptat 57-58) (contendingterritorial and politicalsovereignty are inextricablylinked with cultural sovereignty and thatcultural devastationis likelyconsequence if tribeslose abilityto live in separate,self-governing communities). 80. See David H. Getches,Charles F. Wilkinson& RobertA. Williams,Jr., Cases and Materialson FederalIndian Law 9-27 (5th ed. 2005) (providingoverview of vastdiversity of Indian nations,their populations, locations, land holdings,and economicand health conditions).

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presentin orderfor good Nativegovernance to be present.81However, giventhe importanceof encouragingscholars, critics, and policymakers to look at indigenousgovernance in a newlight, I do attemptto establish some guidingprinciples. The factis, tribalnations, like all others,need good governance.82 Good governments'demonstrated ability to servethe polityencourages citizensto feel securein investingin the futureof the community.83At the same time,good governmentsinspire confidence in outsiderswho interactwith tribes through social, commercial, and legal dealings.84In- effectiveor bad governance,by contrast,produces suspicion and disre- spect among citizensand outsidersalike.85 Not surprisingly,then, the presenceof an effectivegovernment is as criticalto the success of an Indian nationas it is to anyother.86 Studies examiningthe economic developmentstatus of various Indian tribeshave helped to shed lighton thoseaspects of tribalgovernance thatcontribute to the successof Indian tribes. In essence,these findingsconfirm that tribes with "capable, culturally appropriate, and ef- fectivegoverning institutions" were much betteroff economically than others.87However, as JosephKalt, one of the leading researchersand scholarsin thisfield, has acknowledged,"success" in regardto indigenous nation-buildingmust be "self-defined."88Virtually all Indiannations have in common the desire for "culturaland social well-beingand sovereignty,"and also want"economic development of the leveland typethat is consonantwith their particular communities' values and thatcan sup- portindividual and collectivewell-being."89 Accordingly, while I do not mean to suggestthat economic success is absolutelynecessary for good governance,or thatits absence impliespoor governance,economic success maybe indicativeof otherpositive governmental attributes, includ-

81. See Poluha 8c Rosendahl,supra note 13, at 2 (contendingthat aspects of good governancein internationaldiscourse "are endowedwith some kindof absolute,'either you have it or you don't' value"). 82. See Stephen Cornell,Catherine Curtis & MiriamJorgensen, The Concept of Governanceand Its Implicationsfor First Nations 4-6 (JointOccasional Papers on Native Affairs,Paper No. 2004-02,2004), availableat http://www.jopna.net/pubs/jopna_2004-02 _Governance.pdf(on filewith the ColumbiaLaw Review)(explaining that some formof governanceis presentin and necessaryfor all humansocieties to functioneffectively, and notingthat "[t]he necessityfor capable governanceappears to be as truefor indigenous nationsas it is forothers"). 83. Id. at 6. 84. Id. ("Effectivegovernments . . . tend to have the respectof outsiders."). 85. Id. 86. Id. at 8 ("[S] elf-governancematters for indigenous peoples as muchas it does to others.They have to governthemselves, but theyalso have to do it well."). 87. Id. 88. JosephKalt, Constitutional Rule and EffectiveGovernance, in AmericanIndian ConstitutionalReform and theRebuilding of Native Nations 184, 192 (EricD. Lemonted., 2006) [hereinafterKalt, Constitutional]. 89. Id.

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ing the abilityto provide members withgoods and services,the establishment of functional political institutions, and the maintenance of minimum standards of health and education. In the followingdiscussion, I advance a theoryof good Native governance which draws heavilyfrom both liberal political theoryand empirical studies that have identifiedthe characteristicsmost prevalentwithin the governmentsof flourishingIndian nations. Good Native governance requires,first and foremost,that citizens are ensured the freedomsof exit (or opt-out rights)90and dissent (or voice).91 In addition, tribalgovernments should be based on and guided by their own foundational governing principles92and must also provide both members and outsiders with a fair forum for the resolution of disputes.93 Finally,good Native governance requires that everyfacet of tribalgovernance constitutea cultural match94to the structure,religion, and value systemof the particular tribe. As I explain mytheory, I provide specificexamples of tribalgovernance systemsalready at work within Indian country that comport with these good Native governance objectives.

A. Exit (and Entry) Good Native governance requires the freedom of exit, which has long been considered "a bedrock liberal value."95 Exit means that a

90. See infranotes 95-100 and accompanyingtext. 91. See infranotes 150-161 and accompanyingtext. 92. See Duane Champagne,Remaking Tribal Constitutions,in AmericanIndian ConstitutionalReform and the Rebuildingof NativeNations, supra note 88, at 11, 28-31 (describingthe historyof constitution-buildingin Indian countryand its contemporary significancein globalizedworld); Kalt, Constitutional, supra note 88, at 185-86, 191-93 (notingthat Indian nationsare "hamperedby governingstructures that are not of their own making"and arguingfor necessityof indigenousconstitutional development); Cornell, Curtis & Jorgensen,supra note 82, at 10-11 (describing"a constitutional foundationfor self-rule"as "essentialelementf ] of governance");see also infranotes 197-215 and accompanyingtext. 93. See Kalt, Constitutional,supra note 88, at 207-12 (discussingimportance of independentjudiciary to nation-buildingprocess for Indian governments); Cornell, Curtis & Jorgensen,supra note 82, at 13-14 (including"the fair and non-politicalresolution of disputes"as another"essential element[ ] of governance");see also infranotes 216-224 and accompanyingtext. 94. See Stephen Cornell & Joseph P. Kalt, Two Approaches to Economic Developmenton AmericanIndian Reservations:One Works,the OtherDoesn't 7, 12, 16 (JointOccasional Papers on NativeAffairs, Paper No. 2005-02,2006), availableat http:// www.jopna.net/pubs/jopna_2005-02_Approaches.pdf(on file with the ColumbiaLaw Review)(describing "nation-building" approach to economicdevelopment as consistingof fiveprimary characteristics, including "cultural match," which requires strong degree of matchingbetween "formal governing institutions and contemporaryindigenous ideas"). Withregard to establishingconstitutional systems of government,Kalt contends: "When the superstructureof governanceprovided by the constitutionis consonantwith a community'snorms regarding these dimensions of authority, that constitution is culturally matchedto the community."Kalt, Constitutional, supra note 88, at 198. 95. Hanoch Dagan & MichaelA. Heller,The LiberalCommons, 110 Yale LJ. 549,567 (2001); see also AlbertO. Hirschman,Exit, Voice, and Loyalty108-112 (1970) ("With

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member can voluntarilyleave "the effectivejurisdiction of the group"96if she so desires. Exit is valued in liberal theorybecause it increases individual autonomyinsofar as it "enhance [s] [one's] capacityfor a self-directed life, including the capacity to form,revise, and pursue our ends."97 In fact,so long as exit is available, liberal theoryallows subcultureswide lati- tude to maintain illiberal structuresand beliefs,98because tolerance of illiberal groups promotes individual autonomy "by providingindividuals witha diversityof options among communities."99Therefore, when exit is whollyprohibited by the group- such as in the case of the Taliban100- tolerance for the group cannot be justifiedfrom the perspectiveof liberal theory. With this background, I turn the exit inquiryto Indian tribes. Even without a broad empirical study,there is little doubt that exit is commonly available in tribal communities. First,there is no evidence of existing tribal cultures or practices that rely on Indian tribes detaining members against their will. The only situation in which an Indian tribe can lawfully,physically detain someone is when it acts in its capacity as a sovereign to incarcerate Indians who commit crimes on the reserva-

[America]having been foundedon exitand havingthrived on it, the beliefin exit as a fundamentaland beneficialsocial mechanismhas been unquestioning.");John Rawls, Justiceas Fairness:A Restatement§ 26.5 (Erin Kellyed., 2001) (notingthat "political liberalismdoes notview political society as an association[,] ... it insistson thedistinction betweena politicalsociety and an association");Carolyn J. Frantz8c Hanoch Dagan, Propertiesof Marriage,104 Colum. L. Rev. 75, 85-86 (2004) (notingthat right to exit ensuresmarriage in liberalsocieties is legallyvoluntary); Mark D. Rosen,The OuterLimits of CommunitySelf-Governance in ResidentialAssociations, Municipalities, and Indian Country:A Liberal Theory,84 Va. L. Rev. 1053, 1097-106 (1998) [hereinafterRosen, OuterLimits] (discussing importance of abilityto opt out and choose subfederalpolitical structures).But see Roderick M. Hills, Jr., The ConstitutionalRights of Private Governments,78 N.Y.U.L. Rev.144, 161-65 (2003) (arguingthat freedom of exit does not necessarilyincrease individual autonomy, and so does not legitimizegroup power). 96. Dagan & Heller,supra note 95, at 568 (citingLeslie Green, Rights of Exit, 4 Legal Theory165, 176 (1998)). 97. Leslie Green,Rights of Exit,4 Legal Theory165, 176 (1998). 98. See, e.g., Hills,supra note 95, at 161-65 (arguingthat, at least fromRawlsian perspective,consent and exit "cure"potential dangers posed by illiberalgroups); Rosen, Outer Limits,supra note 95, at 1126-27 (discussingopt-out rights within illiberal subsovereigns); Nomi Maya Stolzenberg, The Returnof theRepressed: Illiberal Groups in a LiberalState, 12 J. Contemp.Legal Issues897, 904-07 (2002) (discussingliberal states' justificationfor accommodation of illiberalgroups where exit rights are present). 99. Sunder,Dissent, supra note 29, at 536; see also RobertNozick, Anarchy, State, and Utopia 323-24 (1974) ("If a person finds the characterof a particularcommunity uncongenial,he needn'tchoose to livein it"). 100. Cf.Feldman, Imposed, supra note 14,at 870 (callingTaliban "the most extreme instanceof the self-conscious,intentional repression of women'srights anywhere in the modernworld"); Mark D. Rosen,"Illiberal" Societal Cultures, Liberalism, and American Constitutionalism,12 J. Contemp. Legal Issues 803, 811 (2002) (calling Taliban "enforcementilliberals" because they"seek[ ] to enforcerules or normsthat prevent people fromquestioning or revisingtheir societal culture").

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tion.101 And the rightof a sovereign to incarcerate does not violate opt- out rights,as long as those incarcerationsmeet withother liberal requirements.102There are also additional layersof federal oversightin place to ensure that tribal prosecutions and incarcerations are justified. ICRA holds tribal governmentsto many of the same protections found in the Bill of Rightsto ensure faircriminal trials.103Additionally, persons incar- cerated by an Indian tribe may challenge theirdetainment in federal dis- trictcourt via the writof habeas corpus.104 Thus, there is simplyno legal mechanism withintribal governmentthat precludes the option of exit. Critics of illiberal groups contend that even when actual, physical exit is available, there may be other restrictionson exit thatare too great, making the affiliationnot genuinely voluntary.105For example, some theoristsargue that while exit may technicallybe available, it might re- present an impoverishedchoice if the individual is so steeped in the culture she cannot meaningfullyelect exit.106 Relatedly,this same critique holds thatexit is not a real option if the group's members are deprived of an education so that theyare either too uninformedto know that there is a differentlife "beyond" their culture, or if they are left so ill-equipped

101. Tribalcriminal jurisdiction has been limitedby the Supreme Court, so thatonly Indians are subject to the criminaljurisdiction of tribalgovernments, and thus only Indianscan potentiallybe physicallydetained by a tribe. UnitedStates v. Lara, 541 U.S. 193, 210 (2004) (holding tribesretain criminal jurisdiction over nonmemberIndian defendants);Oliphant v. SuquamishIndian Tribe, 435 U.S. 191,212 (1978) (holdingthat tribalcriminal jurisdiction does not extendto non-Indians). 102. See MarkD. Rosen,Establishment, Expressivism, and Federalism,78 Chi.-Kent L. Rev. 669, 704 (2003) ("The exit rightthus demands that no polityhave the powerto precludeits inhabitants from exiting (with the exception of lawful incarceration, which has thiseffect)."); Mark D. Rosen,Multiple Authoritative Interpreters of Quasi-Constitutional FederalLaw: Of TribalCourts and the Indian CivilRights Act, 69 FordhamL. Rev.479, 505 (2000) [hereinafterRosen, Multiple Authoritative Interpreters] ("The exitright would not, however,preclude perfectionist communities from incarcerating people who have violated theirpenal laws if the communityfollowed fair and consistentadjudicatory procedures."). 103. ICRA's criminalprotections include freedom from unlawful search and seizure, doublejeopardy, self-incrimination, trial provisions (speedy trial, notice, witnesses, counsel at own expense), trialprohibitions (excessive bail/fines, cruel and unusual punishment, penalty/punishment limits), bill of attainder, ex postfacto laws, and trialby jury of at least six. Indian CivilRights Act of 1968,25 U.S.C. § 1302(l)-(4), (6)-(7), (9)-(10) (2000). 104. 25 U.S.C. § 1303 ("The privilegeof the writ of habeas corpus shall be availableto anyperson, in a courtof theUnited States, to testthe legality of his detentionby order of an Indian tribe."). 105. See MarkE. Warren,Democracy and Association98 (2001) (definingvoluntary groupmembership as when"the associational bond is held togetherby chosennormative allegiancerather than by other kinds of force"). 106. See, e.g., LarryAlexander, Illiberalism All theWay Down: IlliberalGroups and Two Conceptionsof Liberalism,12J. Contemp.Legal Issues625, 627-28 (2002) (arguing withregard to limitationon exit that"[o]ne mightneed to acquire informationabout availablealternatives to one's currentway of life,and whatsacrifices one would have to make to choose them").

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thatthey have no viable opportunityto exit.107This concernwas cap- turedinjustice Douglas's dissentin Wisconsinv. Yoder,wsperhaps one of the mostfamous cases in Americanconstitutional jurisprudence regarding the rightsof illiberalgroups to be freefrom state interference. In Yoder,the Court held thatAmish parents could not be prosecutedfor keepingtheir children out of formalschooling after eighth grade based on theirreligious beliefs and effortsto maintainthe Amishculture.109 JusticeDouglas arguedin dissentthat such practicesdeprive the childof meaningfulrights of exitbecause "thechild will be foreverbarred from entryinto the newand amazingworld of diversitythat we have today."110 But even when thishigher bar regardingexit rightsis applied to Indian tribes,there are simplyno groundsupon whichto plausiblycon- tendthat Indian tribesput meaningfulrestraints on exitin termsof edu- cationaldeprivations or exposureto theworld "beyond" the reservation. Researchshows that Indian tribesare increasinglydevoted to the educa- tionof reservationIndians.111 In fact,there are currentlyover thirty-four tribalcolleges workingto meet the educationaland culturalneeds of Indianpeople.112 It is truethat one missionof tribalcolleges is to bridge the gap betweenthe Indian and Angloworlds by offeringinstruction in Indianlanguages and incorporatinga distinctly tribal perspective into the standardcurriculum.113 For example,Bay Mills Community College's tribal literaturecourses are onlyoffered in the winterterm because tribal customrequires that traditional stories be told "whenthere is snow on

107. See, e.g., id. at 627-28; Susan MollerOkin, "Mistresses of Their Own Destiny": GroupRights, Gender, and RealisticRights of Exit, 112 Ethics205, 216-20 (2002) (arguing thatgendered socialization within family, which may impose on womensense of inferiority to men or deprivewomen of educationalopportunities or means of independence, functionallydenies womenmeaningful exit options,even if such resultsare not legally mandated);Mark D. Rosen,Should "Un-American"Foreign Judgments Be Enforced?,88 Minn. L. Rev. 783, 829 (2004) ("[T]he social and culturalcosts of livingthe lifeof an expatriatemay mean thatleaving one's home countryis not a realisticoption for many or mostpeople .... If so, thenit is not meaningfulto describethe act of remainingwhere one was born as a decisionto remain. . . ."). 108. 406 U.S. 205 (1972). 109. Id. at 234. 110. Id. at 245 (Douglas,J., dissenting in part). 111. See, e.g., Lorie M. Graham,An InterdisciplinaryApproach to AmericanIndian EconomicDevelopment, 80 N.D. L. Rev. 597, 624 8c n.184 (2004) ("Tribalcolleges and universitiesare takinga leading role in helpingtribes meet theirhuman development goals."); Bruce Selcraig,Teeing Offin Indian Country,N.Y. Times,Mar. 17, 2006, at Fl (discussingSandia Pueblo, whichmakes college educationavailable, free, to any tribal memberin highschool). 112. Am.Indian Higher Educ. Consortium,at http://www.aihec.org(last visited Apr. 2, 2007) (on filewith the ColumbiaLaw Review). 113. Am. IndianHigher Educ. Consortium,What Makes Tribal Colleges Unique? E-l to E-2 (1998), availableat http://www.aihec.org/documents/PDFS/TCUSUnique.pdf(on filewith the ColumbiaLaw Review)(describing language courses and otherincorporations of tribalperspective into tribalcollege curricula).

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the ground."114 But Indian nations' effortsto offera tribalperspective in the context of a broader education does not minimize individual Indians' opt-out rights. On the contrary,the demonstrated commitmentof the vast array of tribal educational institutions,taken in conjunction with other effortsto educate Indians- such as the percentage of tribal reve- nue that goes towardsscholarships and education funds for tribal mem- bers115- demonstrates,even if anecdo tally,that in no respect are Indian tribesattempting to thwartIndians' education.116 In addition, though many Indians still reside on reservationsand throughoutIndian country,there are large Indian populations livingbe- yond reservationborders as well. In a sense, expansive exit rightsare part of what is shaping changes in Indian communities and contributingto the "indigenizationof modernity."117More and more Indians are living offreservations and seeking opportunityand education in the dominant society. These demographic changes are reflected in various American institutions.For example, in keeping with a long historyof militaryser- vice, manyIndians leave theirtribes and serve in the armed forces. There are currently20,000 American Indians or Alaskan Natives servingin the U.S. military,and approximatelytwenty-two percent of all American Indi- ans over eighteen years of age are veterans.118Educational institutions, particularlythose in states with large Indian populations, reflect these demographic shiftsas well. The Universityof Oklahoma, for example, has an undergraduate student body that is eight percent American In-

114. Id. atE-1. 115. The NationalIndian GamingAssociation reports that the largest segment of net revenuegenerated by Indian gaming,twenty percent, is used for education,child and eldercare, cultural preservation, charitable donations, and otherpurposes. NIGA, Indian Gaming,supra note 5, at 9. Some examplesof educationspending include $2.5 millionin annualgrants for education by the Chickasaw Nation in Oklahoma;a $3 milliondonation to CaliforniaState University, San Bernardinoin 2003 bythe San ManuelBand of Mission Indians to expand a Cross CulturalCenter and develop endowmentsfor scholarships, internships,and diversitytraining; a tribalscholarship program for highereducation fundedby the Santa Ynez Chumash;and fundingto run the award-winningAhfachkee School (kindergartenthrough high school) establishedon the Big CyprusReservation by the SeminoleTribe in Florida. Id. at 10-11. 116. For example,the Sandia Pueblo,widely regarded as one of themore traditional tribesin Indian country,pays members'entire educationalbills, includinggraduate school. See MichaelRiley, Duped byAbramoff, Tribe StillSmiling, Denver Post, Feb. 5, 2006, at Al [hereinafterRiley, Abramoff|. 117. RosemaryJ. Coombe, Protecting Traditional Environmental Knowledge and New Social Movementsin theAmericas: Intellectual Property, Human Right,or Claimsto an AlternativeForm of SustainableDevelopment?, 17 Fla. J. Int'l L. 115, 132-33 (2005) (creditinganthropologist Marshall Sahlins with coining phrase "indigenizationof modernity,"meaning indigenous peoples' attemptto retaintraditional ways while using toolsof modernworld) . 118. Holli Chmela,Bill Would Aid Cemeteriesfor Indian Veterans, N.Y. Times, Sept. 3, 2006, at Al 5.

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dian.119 And, due to the relocation programs of the 1960s, which urged Indians to leave their reservationsand startanew in cities far from their tribes,there are also many Native people livingtoday in urban centers.120 According to the 2000 census, approximatelysixty-six percent of Ameri- can Indians live in cities, including Chicago, Los Angeles, and Minneapolis.121 Accordingly,the evidence suggeststhat Indians are free to- and indeed, are- moving in and out of Indian countryon a regular basis. Now that gaming has produced economic incentivesfor Indians to return to the reservation,more Indians today are leaving the reservationfor education or business experience, but then returninghome to help run tribal enterprises.122Indians withMBAs, JDs, MDs, and a host of other degrees are choosing to returnto Indian countryto help theircommunities.123 It is preciselythis juxtaposition of Anglo education and tribaltraditions that allows Indian cultures, like all others, to evolve as they are increasingly influenced by the outside, inspiringchange withintribal communities in waysconsistent with Indian beliefs and lifeways. Nevertheless, although education is widely available and en- couraged, there might still be constraints on exit that are untenable under a liberal theory. Liberalism allows some "moderate restraints"on the freedom of exit.124 Restraintssuch as an "exit tax" or "departure de- lay" have been characterized as falling within this category and do not constitutean impermissibleimpediment to exit under liberal theory.125 In fact,some scholars contend that restraintsof this magnitude can have

119. Randal C. Archibold,Off the Beaten Path, N.Y. Times,July 30, 2006, § 4A (EducationLife), at 22. 120. See Scott C. Hall, The Indian Law Canons of Constructionv. The Chevron Doctrine:Congressional Intent and theUnambiguous Answer to theAmbiguous Problem, 37 Conn. L. Rev.495, 503 n.66 (2004). 121. PressRelease, Boxer PressOffice, Boxer Leads Bi-PartisanGroup of Senators Seekingto RestoreFunding for Urban Indian Health (Mar. 17, 2006), availableat http:// boxer.senate.gov/news/releases/record.cfm?id=252900&& (on filewith the ColumbiaLaw Review). 122. See, e.g., BeckyKramer, The Game Has Changed: LaSarte-MeeksTakes over CdA IndianCasino, Spokesman-Rev. (Spokane, Wash.), Nov. 8, 2006,at A14 (reportingon careerchoices of tribalmember David LaSarte-Meeks, Stanford-trained attorney and MBA, who returnedto Coeur d'AleneTribe's reservation to becomechief executive officer of its casino and resort);Becky Kramer, Jackpot for Jobs: Successof Region'sCasino Industry Has Been a Boon to the Local Job Market,Spokesman-Rev. (Spokane, Wash.), Mar. 19, 2006, at Gl (describingCoeur d'Alene tribalmember Yvette Lozeau, who returnedto reservationafter obtaining finance and marketingdegree to workin managementat tribe'scasino and resortwhile tribe also paid forher to get MBA). Anecdotally,I have manyfriends and colleagueswho receivedtheir degrees at top educationalinstitutions outsideIndian countryand have since returnedhome to workfor their tribes. 123. See Kalt,Constitutional, supra note 88, at 207 ("[E]ffectivetribal governance createscommunities where it used to be thateveryone wanted to move away,but now they'reall comingback." (internalquotation marks omitted)). 124. See Dagan & Heller,supra note 95, at 568-69. 125. Id.

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positive effects,as they serve "to ensure that the decision to leave is informed (not hasty and ignorant) and sincere (not opportunistic)."126 But harsher, penalizing restraintsmay run afoul of liberalism's requirement that individualsenjoy expansive exit rights.127Extraordinarily long delays or the mandatoryforfeiture of valuable propertyor services likely qualifyas unreasonable exit restraints.128 Here, exit becomes somewhat more complicated for tribes. There are goods and servicesthat mightbe associated withtribal affiliation that would not otherwisebe available to nonmembers.129From this perspective, exit costs could be deemed to be prohibitivelyhigh from a liberal theoryperspective if members desired to exit the tribal community,but dared not because of the losses theywould incur. As a theoreticalmatter, this might give pause. But the realityis that one need not disenroll or disavow tribalmembership in order to "leave" an Indian community. As thisArticle has demonstrated,many Indians move away fromtheir reservationsand live withvarying degrees of connection to theirtribal communities.130In such cases, those tribal members are often free to continue

126. Id. at 568; see also id. at 597 ("[E]xit rules. . . can serve... as backgroundrules whosemere existence protects [those in a liberalcommons] from defection, abuse oftrust, and exploitation."). 127. Id. at 567-69. 128. See Alexander,supra note 106, at 627-28 (statingthat it is not enough that individualsare permittedexit, as departuremight still be precludedif individualsmust forfeitproperty, move, or gaininformation about life outside the group to availthemselves of option);Dagan 8cHeller, supra note 95, at 568-69 (describingrules that "unreasonably delayexit" as "incompatiblewith the mostfundamental liberal tenets"); Gloria Valencia- Weber,Racial Equality:Old and New Strainsand AmericanIndians, 80 NotreDame L. Rev. 333, 363-64 (2004) [hereinafterValencia-Weber, Racial Equality](explaining that childrendenied membershipin Santa Clara Pueblo tribe"would be denied political rightsf,]materials benefits, especially land use rights[,]and otherentitlements"). 129. For example,Indian tribesand theirmembers are entitledto certainbenefits pursuantto the Indian Self-Determinationand EducationAssistance Act, 25 U.S.C. § 450 (2000), and the NativeAmerican Housing Assistanceand Self-DeterminationAct, 25 U.S.C. §§ 4101-4243. Most tribesalso affordnumerous goods and servicesto theirown members.See, e.g., GrandTraverse Band of Ottawa8c Chippewa Indians v. U.S. Att'yfor W. Dist.of Mich.,198 F. Supp. 2d 920, 926 (W.D. Mich. 2002) (reviewinghow revenues fromtribal casino fund approximately 270 tribalgovernment positions and governmental programs,"including health care, elder care, child care, youth services,education, housing,economic developmentand law enforcement"),afFd, 369 F.3d 960 (6th Cir. 2004). These goods and servicesare no differentthan those benefitsavailable to U.S. citizens,which would be discontinuedupon disavowalof citizenship.Though subjectto variousexceptions, the general rule is that aliens are not eligible for federalpublic benefits.See 8 U.S.C. § 1611 (2000) (statinggeneral rule); see also 42 U.S.C. § 402(y) (2000) (barringunlawful aliens from receiving Social Securitybenefits). 130. See Getches, Wilkinson& Williams,supra note 80, at 16 (stating that approximatelyhalf of U.S. Indian populationlives off of reservationsin urbanareas); see also DJ. Jackson,A BriefBad RiverHistory/ Description, Bad RiverLodge, Casino & ConventionCenter, at http://www.badriver.com/about.html(lastvisited Apr. 3, 2007) (on filewith the ColumbiaLaw Review)(referring to Bad RiverBand of Lake SuperiorTribe of ChippewaIndians whose total tribal membership is over6,000 withonly 1,500 members livingon reservation);Little Earth of UnitedTribes, Little Earth of UnitedTribes History,

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to access many of the goods and services associated with membership, even when theyare no longer livingin Indian country.131 As a practical matter,there is no evidence to suggest that, but for high exit costs, Indians would disavow their tribal citizenship. On the contrary,there is a strangetwist on exit occurringwithin tribal communities. It appears that the vast majorityof complaints about exit are coming from members who did not choose to leave (and therefore forfeited goods and services), but who were forced to leave. A cursorylook at some of the high-profileconflicts arising in tribalcommunities around issues of banishment and disenrollment, for example, demonstrates that these conflictsare not about the individual's right to leave the group; rather, they are about the individual's desire to stay in, or enter, the group.132 Similar claims may arise in other typesof tribal membership disputes as well. For example, a tribe that maintains a matrilinealstructure will determine membership according to the mother's clan.133 In such cases, children of an Indian fatherand non-Indian mother may not be citizens of the tribe.134Or, a tribe may have minimum blood quantum require- mentsso that those who fall beneath the requisite standard will be denied membership.135In thisregard, any deprivationof citizenshipby the tribe is more directlyrelated to the rightof entry,not exit.136 But liberal theory does not equate rights of entry with those of exit.137 Even extreme selectivityin membership is generally palatable, even when the libertyinterest of the group conflictswith the individual's equality interest in associating with those of her choosing.138 Because at http://www.littleearth.org/About.htm(last visited Apr. 3, 2007) (on file with the ColumbiaLaw Review)(describing Little Earth communitybuilt around Indian culture whereoff-reservation Indians of differenttribes live together in urbanenvironment). 131. See, e.g., CitizenPotawatomi Nation, Services, at http://www.potawatomi.org/ Services/defaultaspx(last visitedApr. 3, 2007) (on filewith the ColumbiaLaw Review) (discussingbenefits available to all CitizenPotawatomi members regardless of residence). 132. See, e.g., Brendan Ludwick,The Scope of Federal Authorityover Tnbal MembershipDisputes and the Problemof Disenrollment,Fed. Law.,Oct. 2004, at 37, 43 (discussingCalifornia case in which tribalgovernment expelled 174 people, fifteen percentof tribe'smembership, from tribe); cf. MatthewL.M. Fletcher,Dibakonigowan: Indian Lawyeras Abductee,31 Okla. CityU. L. Rev. (forthcoming2007) (manuscriptat 2-3, on filewith the ColumbiaLaw Review)(contending that some Indian lawyersprefer not to returnto reservationto workwith Indian tribes,particularly their own, because of potentialconflicts of interestor politicalin-fighting). 133. See infranotes 362-372 and accompanyingtext. 134. See infranotes 362-372 and accompanyingtext. 135. See infranote 477. 136. For a thoroughdiscussion of banishment and disenrollment,see infraPart IV.B. 137. See Dagan & Heller,supra note 95, at 570 (We believethat liberals should not be concernedwith every limitation on entry."). 138. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000) (upholding decision of Boy Scouts of America to exclude gay scout leader on free association grounds).But freedom of association is notabsolute. See, e.g.,Roberts v. U.S.Jaycees, 468 U.S. 609, 621 (1984) (holdingthat Jaycees, as quasi-commercialorganization, could not excludewomen from its ranks).

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liberalismvalues pluralism,groups that maintain "exclusionarypractices" may be tolerable.139 This is because "a liberal commitmentto pluralism requires a multiplicityof groups, which in turn calls for allowing groups autonomously to determine their own, divergent membership requirements."140 Thus, the resulting "asymmetrybetween exit and entry"is deemed an acceptable consequence of liberalism.141 The right to choose one's members is particularlyimportant to tribes,as the freedom to decide who is in or out of the group is a funda- mental attributeof sovereignty.142In fact,Justice Marshall's opinion in Santa Clara Pueblo turned, in part, on this critical analysis.143Justice Marshall acknowledged that "[a] tribe's rightto determine its own membership for tribalpurposes has long been recognized as central to its existence as an independent political community."144Preference for tribes' authorityto determine their membership over individual claims for entrance is also embodied in the dissentaccompanying the Second Circuit's ruling in a recent tribal banishment case.145 Judge Jacobs argued: Natural born members of the Tonawanda Band are citizens of the United States. Once they exit the reservation,petitioners will be free to settleand travelwhere theywish, and to come and go as theyplease, in the same wayand to the same extent as any other person in the United States. Although that freedom does not confer a right to settle or trespass on private lands, or on lands reserved to any Indian nation, the petitioners' constitutional rightswill in no way be diminished afterbanishment; indeed, they will then enjoy important constitutionalrights that are not guaranteed by the ICRA on the Tonawanda reservation.146 Because the banished plaintiffsin Poodrywere in no worse position than any other U.S. citizen by virtue of their banishment, the dissent argued that the tribe's interestin self-determinationand autonomy should take precedence over the individual claims of the disenrolled members.147 Undoubtedly, liberalism strugglesto satisfythe appropriate balance between the individual's equality interest(in entrance), and the group's

139. Dagan & Heller,supra note 95, at 570-71. 140. Id. at 570. 141. Id. at 571. 142. For a detailedaccount of some of thestruggles Indian tribeshave undergone in theprocess of designating membership, see generallyCarole E. Goldberg,Members Only? DesigningCitizenship Requirements for Indian Nations,50 U. Kan. L. Rev. 437 passim (2002) [hereinafterGoldberg, Members Only]. 143. See Santa Clara Pueblo v. Martinez,436 U.S. 49, 72 (1978). 144. Id. at 72 n.32. 145. Poodryv. TonawandaBand of Seneca Indians,85 F.3d 874 (2d Cir. 1996). 146. Id. at 902 (Jacobs,J., dissenting) (citation omitted). Judge Jacobs argued that habeas analysisshould have focusednot on whatrights conferred by tribalsovereignty petitionerswould lose, but on "whetherthe petitioners,if banished,will suffer a severe impairmentof the libertiesthat are enjoyedby the American public at large." Id. 147. See id.

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libertyinterest (to exclude). The ensuing debate between libertyand equality is a robust and heated one.148 Individuals who are illegitimately denied entry (or are subject to forced exit) may suffergreat losses in termsof communityand culturalidentity.149 This mightconstitute a par- ticularlypoignant loss for Indians, who are unlikelyto be able to access a communityoutside the tribe where theywill be able to speak their language, participatein religious ceremonies, commune withsacred sites,or engage withother Indians of the same (or similar) tribalaffiliation. This is why,for reasons set forthherein, tribesshould be particularlycautious about capriciouslyimposing exile or denyingentry to legitimateor potential tribal members. Nevertheless,the argument for Indian nations' autonomy to determine tribal membership by internal mechanisms is not a case for exile. Rather,it is an argumentfor the rightof self-determination,which is critical to the continued political and cultural existence of Indian nations. Moreover, as set forth in Parts III and IV, depending on the circumstances,exile of individual Indians fromtribal communities may be indic- ative of the presence- or absence - of good Native governance.

B. Dissent (Voice)

The freedom of dissent is widelyaccepted as a fundamentaltenet of a liberal democratic society.150As Heather Gerken argues, dissent is valued because "it contributesto the marketplaceof ideas, engages electoral minoritiesin the project of self-governance,and facilitatesself expression."151 I include dissent as an integralpart of good Native governance for these and other reasons.152 Governmentallegitimacy often relies on the presence of dissent,or members' opportunitiesto convey dissatisfac-

148. See, e.g., Rebecca L. Brown,Liberty, the New Equality,77 N.Y.U.L. Rev. 1491, 1492-94 (2002) (callingliberty and equality"rival siblings" and arguingthat "as equality wasto thelast century, so shouldliberty be to thenext"); Erwin Chemerinsky & Catherine Fisk,The ExpressiveInterest of Associations,9 Wm. & MaryBill Rts.J. 595, 595 (2001) ("The tensionbetween freedom of associationand antidiscriminationlaws is inherently difficult.");Noah Feldman, From Libertyto Equality: The Transformationof the EstablishmentClause, 90 Cal. L. Rev. 673, 675-76 (2002) (arguingthat Supreme Court jurisprudencenow frames Establishment Clause as "guaranteeingthe politicalequality of religiousminorities" rather than "protecting] the liberty of conscience"); Sunder, Dissent, supra note 29, at 523-48 (using Boy Scoutsof Americav. Dale, 530 U.S. 640 (2000), as exampleof how libertyinterests of associationsare preferredover equality of individuals, particularlythose whose speech conflictswith social norms). 149. See RinaSwentzell, Testimony of a SantaClara Woman, 14 Kan.J.L. 8c Pub. Poly 97, 99-101 (2004) (discussingher daughters' and granddaughters'levels of "belong[ing]" to Pueblo tribe,depending in parton eitherenrollment as membersor exclusionbased on patrilinealmembership rule). 150. See Heather K. Gerken,Dissenting by Deciding,57 Stan. L. Rev. 1745, 1746 (2005) ("Everyone,it seems,believes in dissent"). 151. Id. at 1749 (emphasisomitted). 152. See infranotes 474-475 (discussingbenefits to tribalculture and community wheremembers can speak freely).

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tion with the group's leaders.153 When members have the abilityto participate in the communitydialogue, it increases their investmentin the society,even if their viewpoint ultimatelyfails to alter public policy.154 Relatedly,dissent is good for the group because it instillsloyalty in and among communitymembers and enhances members' interpersonalrela- tionships.155 Theorists have also pointed out that organizations are largelydefined by the manner in which the authorityto speak (or dissent) is distributedwithin the group. EvelynBrody contends: "[H]ow an association distributesvoice power withinthe organization isjust as much a part of what it means to be a member- or otherwiseaffiliated with the organization- as the message it expresses. The medium and the message are both the expression."156 Moreover, dissent is important because robust rights of voice are thought to minimize exit.157 Oftentimes,members' decisions regarding exit will be heavily influenced by the avenues available for dissent.158 That is, when members of the group have the freedom of dissent,they do not have to exit to express theirdissatisfaction with the group.159 In this sense, citizenswho enjoy robust protectionsfor speech can use theirdis- sentingvoices to inspire internal change. Thus, a governmentthat seeks to keep members engaged and integrated ought to create avenues for voice so that citizens will turn to exit only "as a last resort."160In sum, dissent is essential for a good government,though it does not hold the same import as the freedom of exit. As Hanoch Dagan and Michael A. Heller contend: "[S]o long as strongexit is possible- and we insistthat it alwaysbe possible- exit proves an easy response to dissatisfaction,and it tends to dominate voice."161 The importance of voice suggests that tribal governments- like - other sovereigns ought to provide some avenue for members' speech. The available evidence indicates, in fact,that the rightof voice or dissent is commonly available within tribal communities.162First, according to

153. See Gerken,supra note 150,at 1775. 154. See Esty,supra note 56, at 1520 (relyingon 1 JurgenHabermas, The Theoryof CommunicativeAction: Reason and the Rationalizationof Society(Thomas McCarthy trans.,Beacon Press1984) (1981), in explainingwhy robust political debate is essentialto good governance). 155. See Dagan & Heller,supra note 95, at 590-91. 156. EvelynBrody, Entrance, Voice, and Exit: The ConstitutionalBounds of the Rightof Association,35 U.C. Davis L. Rev. 821, 865 (2002) (emphasisomitted). 157. See Dagan 8c Heller,supra note 95, at 590-91. 158. Id. 159. Id. 160. Id. at 591. 161. Id. 162. Withover 500 federallyrecognized Indian nations in theUnited States, it cannot be statedwith certainty that the freedomof dissentis availableas a general matter. Extensiveempirical studies would have to be conducted to definitivelydraw this conclusion.Cf. Joseph Thomas Flies-Away, My Grandma, Her People,Our Constitution,in AmericanIndian Constitutional Reform and theRebuilding of NativeNations, supra note

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many theorists,democracy itselfserves as sufficientvoice, because group members have a say in elections and are free to choose leaders to speak for them.163 Thus, if a group maintains particular practices or laws that might be deemed illiberal- such as a gay marriage ban among the Cherokees of Oklahoma164- members' power to vote allows them to elect new leaders with a differentvision. In this sense, citizens use their votes to give voice to changing internal tribal dynamics,which can then be reflectedin the leaders who are chosen.165 And Indian tribes many " todayhave democraticallyelected leadership,166due in part,to the 'boil- erplate' constitutions"167adopted after the passage of the Indian Reor-

88, at 144, 153-54 ("ArticleIX, Bill of Rightsof the Hualapai Constitution,guarantees theseand otherliberties for all people and personswithin the Hualapai boundaries."). Flies-Awayalso notesthat "Hualapai culture traditionally allowed for free expression by all membersof theTribe and was practicedprior to the colonizationby the Europeans."Id. 163. See Ilya Somin,Revitalizing Consent, 23 Harv.J.L. & Pub. Pol'y 753, 761-62 (2000) ("Most modern voice theories link consent to participationin democratic institutions."). 164. CherokeesBan GayUnions, Indian Life,July 1, 2004,at 2. 165. See, e.g.,Hills, supra note 95, at 206 n.218 (notingthat critics of illiberalgroups "ignore. . . the possibilitythat . . . societies. . . mightprovide ample opportunitiesfor dissentersto challengethe leadershipthrough voice and exit"). 166. See, e.g.,Const, and By-lawsof theAssiniboine and SiouxTribes of theFort Peck IndianReservation art. V, § 2 ("Allmembers of theAssiniboine and Sioux Tribes,. . . who are eighteen(18) yearsof age or over,are eligibleto vote ...."); id. art.IV, § 3 ("The Chairman,the Vice-Chairman, Sergeant-at Arms [sic] and twelve(12) additionalmembers of the Board shall be elected at large."); Const,and Bylawsof the Bay Mills Indian Communityart. IV, § 7 ("Anymember of theBay Mills Indian Community who is eighteen (18) yearsof age or overshall be entitledto voteat anyelection of GeneralTribal Council meetingsat whichhe presentshimself during the officialvoting."); id. art.IV, § 2 ("The GeneralTribal Council shall elect from its own members who are twenty-one(21) yearsof age or over,by secret ballot, a President,a Vice-President,a Secretary, a Treasurer, and one Councilman.");Const, and By-Lawsof the CheyenneRiver Sioux Tribe art.V, § 1 ("All enrolledmembers of the CheyenneRiver Sioux Tribe,18 yearsof age or over,who have maintainedlegal residenceon thereservation for a periodof ninety (90) daysimmediately prior to any election shall have the right to vote."); Const, and By-Lawsof the ConfederatedTribes of theColville Reservation art. Ill, § 5 ("Anyenrolled member of the ConfederatedTribes of the Colvillereservation who is eighteen(18) yearsof age or over shallbe entitledto votein all tribalelections."); Const, and By-Lawsof the ForestCounty PotawatomiCommunity, Wis. art. Ill, § 4 ("Anyenrolled member of the Community who is at leastone-fourth (1/4) degreePotawatomi Indian blood and is eighteen(18) yearsof age or over shall be qualifiedto vote at all GeneralCouncil meetings.");Const, of the Fort Belknap Indian Communityof the Fort Belknap Reservation,Mont. art. VII, § 1 ("All membersof the communityof eithersex, overthe age of 21 years,are entitledto votein the districtin whichthey reside."); Const, of the Muscogee (Creek) Nationart. IV, § 2 ("Everycitizen . . . shallbe eligibleto votein thetribal elections provided that (a) theyare registeredvoters for elections; (b) theyare at leasteighteen (18) yearsof age at thedate of election. . . ; and (c) theyhold citizenship.");id. art.IV, § 7 ("Allcitizens shall be allowed to votefor the PrincipalChief and anysuch nationaloffice that shall be created."). 167. MatthewL.M. Fletcher,Same-Sex Marriage, Indian Tribes, and theConstitution, 61 U. MiamiL. Rev. 63, 78 (2006).

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ganization Act (IRA) in 1934.168 Many of the IRA constitutions,which often required that leaders be democraticallyelected,169 are stillin place today.170 ContemporaryIndian nations are employingthe vote to give voice to significantcultural changes withintribal communities. One example of thisphenomenon is reflectedin the recent rise of female leaders in tribal governments. In the past two decades, several tribes have, for the first time, elected women to high-rankingtribal leadership positions.171This includes Herminia Frias, who was the firstfemale to ever be elected to lead the Pascua Yaqui Tribe in Arizona.172 Frias is one in a growingtrend of women leaders. A 1981 Department of Education study found that there were sixty-ninefemale leaders among the more than 500 federally recognized Indian tribes.173By 2006, the number of women leaders of tribes had nearly doubled, hittingits zenith at 133.174 Women are also increasinglyprominent in tribal judiciaries.175 One tribe's combined trial and appellate court is comprised entirelyof females.176 The movement toward more women leaders in tribal communities demonstrates that members are using voice to effectuatechanges that are reflectiveof the broader cultural trendsoccurring within tribal nations and withinlib- eral societies in general. Beyond votingrights, citizens may also assertvoice throughthe exercise of free speech. As more fullydiscussed below, many tribal governments are structuredaround writtenconstitutions that often incorporate

168. IndianReorganization Act of 1934,Pub. L. No. 73-383,48 Stat.984 (codifiedat 25 U.S.C. §§461-479 (2000)). Approximately150 tribalconstitutions were adopted pursuantto the IRA. Goldberg,Members Only, supra note 142,at 437 n.3. 169. See Hope M. Babcock, A Civic-RepublicanVision of "DomesticDependent Nations"in the Twenty-FirstCentury: Tribal SovereigntyRe-envisioned, Reinvigorated, and Re-empowered,2005 Utah L. Rev.443, 495-96 (notingthat IRA "requir[ed]tribes to conducttribal elections and to adoptconstitutions and governmentalinstitutions modeled afterthose of the federalgovernment"). 170. Champagne,supra note 92, at 12 ("In manyother communities, colonial IRA constitutionalgovernments or non-IRAconstitutions have operatedfor more than sixty yearsand are oftentaken by many community members as the givengovernment."). 171. MonicaDavey, As TribalLeaders, Women Still Fight Old Views,N.Y. Times, Feb. 4, 2006,at Al. 172. CarmenDuarte, Pascua Yaqui FemaleTrailblazer, Ariz. Daily Star, Dec. 13,2006, at 5. 173. See Davey,supra note 171. 174. Id. 175. For example,I am honoredto be thefirst woman elected to theSupreme Court of the CitizenPotawatomi Nation. I join myIndian friendsand colleagues- including ChristineZuni Cruz, Wenona Singel, Stacey Leeds, and Pat Sekaquaptewa,among others - who proudlyserve as femalejudges for their respective tribes. 176. See AnnetteVanDeCar, A Woman'sPlace Is in ... theCourtroom, Odawa Trails (LittleTraverse Bay Bands of Odawa Indians,Harbor Springs, Mich.), Oct. 2006,at 1, 1, availableat http://www.ltbbodawa-nsn.gov/newsletter/newsletterframeset-3.htm(on file withthe ColumbiaLaw Review)(celebrating Wenona Singel,Rita Gasco-Shepard,JoAnne Cook,Jenny Kronk, and Donna Budnick,who constitute all-female court of LittleTraverse BayBand of Odawa Indians).

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provisions similar or identical to those contained in the U.S. Constitu- tion's Bill of Rights,including the freedom of speech.177 A brief review of available tribal constitutionsconfirms that freedom of speech is fre- quentlydelineated as an importantindividual right.178At the same time, however,free speech may not be identical in scope and import in tribal communities as it is in the dominant culture. Afterall, there are vastly differentcultural contexts in which the rightmay be asserted,and these differencesought to be thoughtfullyconsidered. In some indigenous communities,for example, the absence of voice- ratherthan evidence of an "illiberal" policy- may merelybe a reflectionof a deeply embedded communitarian culture that depends on unitywithin the tribal commu- nityas a matterof survival. As one Indian author puts it, "[m]ost tribal Indians are raised to thinkindependently and act forothers."179 In other words,tribal members are taughtto put the communitybefore theirindividual needs,180as Indian individualismis situatedwithin a larger "cosmic order of purpose and balanced powers."181Because of this communitarian ethic, some scholars have cautioned against an expansive application of free speech rights within tribal nations, suggesting that the closely bound nature of Indian tribes- which are largelycomprised of families and clans- could be severely damaged if such robust rights were required.182 Given these important cultural differences,voice or the right to speak in any particularIndian communitymay not be directlyanalogous to thatseen in the dominant culture. At the same time,good Native governance requires that citizens have some meaningfulavenue forvoice, as it provides the best method for tribalcitizens to express dissent and effec-

177. See Goldberg,Revitalization, supra note 75, at 893-96 (discussinggeneral processby which tribes adopted individualrights provisions); Kalt, Constitutional, supra note 88, at 208 ("[M]any tribes'constitutions contain a bill of rights.");Valencia-Weber, Racial Equality,supra note 128, at 362 (noting that IRA provided "boiler plate" constitutionalmodel that"many tribes adopted"). 178. See, e.g., Const,and By-Lawsof the ConfederatedTribes of Warm Springs Reservationof Or. art.VII (containingBill of Rightsprovision guaranteeing freedom of speech); Const,of theFort McDowell Yavapai Nation art. VIII (same); Const,and Bylawsof the ConfederatedSalish and KootenaiTribes of the FlatheadReservation, Mont. art. VII (same). 179. RobertA. Williams,Jr., Gendered Checks and Balances: Understandingthe Legacyof WhitePatriarchy in an AmericanIndian CulturalContext, 24 Ga. L. Rev. 1019, 1024 (1990). 180. Id. 181. Champagne,supra note 92, at 13. 182. See J. KennethReiblich, Indian RightsUnder the CivilRights Act of 1968, 10 Ariz.L. Rev.617, 623-24 (2004) (arguingthat such impositioninto intrafamily tribal life could possibly"lead to a furtherbreakdown of tribalsociety"); see also MatthewL.M. Fletcher,Theoretical Restrictions on the Sharingof IndigenousBiological Knowledge: Implicationsfor Freedom of Speech in Tribal Law, 14 Kan. J.L. & Pub. Pol'y 525, 535 (2005) (discussingDodge v. Nakai,298 F. Supp. 17 (D. Ariz.1968), in whichNavajo Nation harshlycensored free speech of non-Navajoattorney because his laughingat tribalelders duringleadership meeting was consideredgrave offense against elders) .

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tuate change fromthe inside.183This means even if tribalnations - muchlike the UnitedStates and othersovereigns - do not formallypro- scribevoice, speech rightsmust be protectedin practice,even when,in timesof threat,the perceived relative importance of citizens'speech vis-a- vis the government'sinterest in securityshifts.184 Effortsto achievethis fine balance can be seen in the tribalemploy- mentcontext. Here, freespeech rightsmay be particularlyvaluable to tribalmembers, who are oftenemployed by theirtribal governments.185 Like thestate and federalgovernments, Indian nationsmay lawfully stifle politicalspeech in the employmentcontext to protectthe businessinter- estsof the government.186But, at times,tribal members feel frustrated withsuch prohibitions,contending that restrictions prevent them from speakingout againsttribal corruption for fear of losing theirjobs.187 This becomesparticularly problematic in areas of the countrywhere the livelihoodof entirecommunities depends on tribalenterprises.188 In such cases, a tribalmember who is firedfrom her job forprotesting a tribalgovernment's mismanagement may have fewoptions in seekingal-

183. See Dagan 8c Heller,supra note 95, at 590-91 (contrastingvoice withexit as effectivemeans of communityparticipation and "community-building");cf. Esty, supra note 56, at 1520 ("[D]ebate and deliberationpromote rationalityand improve outcomes."). 184. In timesof strife, the U.S. governmenthas unabashedlysquashed the free speech interestsof Communists,anarchists, and terrorists.See Laura K. Donohue, Terrorist Speech and the Futureof Free Expression,27 Cardozo L. Rev. 233, 239-48, 316-18, 340 (2005) (discussingUnited States's handling of free speech rightsof Communists, anarchists,and terroristsin lightof perceivedthreats) . 185. Indian nationsemploy thousands of people in America,both Indian and non- Indian. See MatthewL.M. Fletcher,Tribal Employment Separation: Tribal Law Enigma, TribalGovernance Paradox, and TribalCourt Conundrum, 38 U. Mich.J.L. Reform273, 279 (2005) [hereinafterFletcher, Tribal EmploymentSeparation] ("Tribesare usually close-knitcommunities that generallyemploy a significantpercentage of Tribal Members.");Tom Wanamaker,Let the Games Begin: The EconomicImpact of Indian Gaming,Indian CountryToday (Canastota,N.Y.), Mar. 9, 2005, availableat http://www. indiancountry.com/content.cfm?id=1096410499(on file withthe ColumbiaLaw Review) (notingOneida NationEnterprises employs approximately 4200 people, of whomthree percentare Indian). 186. See Lauren Donovan,Hall SaysTribes' Free Speech Intact,Bismarck Tribune (N.D.), Aug. 11, 2004, at IB (providingexample of tribalemployer policy forbidding from with Donovan Tex Hall, a tribalchairman, who employees speaking press). " quotes defendsthe speech restrictivepolicies as Standardbusiness practices used to ensurethe integrityand accuracyof informationregarding the tribethat is releasedto the public.'" Id. She furtherquotes Professor Matthew Fletcher of theUniversity of NorthDakota Law School as saying"'[t] here's not anythingwrong with [Hall's policy],'since 'state and federalgovernments do it all the time.'". 187. See Diana Graettinger,Tribal Employees'Dismissal Prompts Lawsuit, Bangor Daily News (Me.), Aug. 26, 2006, at C4 (describingtribal court lawsuitalleging First Amendmentviolations filed by five tribalemployees fired for holding demonstration againsttribal government). 188. See, e.g., AndrewWard, Seminole High RollersObscure Tribal Hardship,Fin. Times (London), Dec. 9, 2006,at 21 (notingthat Mississippi Band of ChoctawIndians is "second-largestemployer" in state).

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ternateemployment.189 Of course,similar concerns are likelyprevalent forboth Indiansand non-Indiansresiding in countiesor citieswhere local, state,or federalgovernments serve as theprimary employers. In contrastto non-Indians,however, tribal members may experience particu- larlystrong connections to theirtribal community that simply cannot be replicatedelsewhere. Whilethe availableevidence indicates that at leastsome avenuefor voice is availablein manytribal communities, without an in-depthstudy of each particulartribe, it cannotbe stateddefinitively that every Indian nationprotects voice.190 And someprotection for voice is criticalto good Nativegovernance. In itsabsence, members may be forcedto opt forexit or exile in lieu of speech,which can havea devastatingeffect on boththe individualand the tribe.191

C. FoundationalGoverning Principles Indian tribesare at variousstages of nation-buildingdue, in part,to dramaticdifferences in theirhistories and structures.For example,some tribeshave been recognizedas nationssince theircontact with European colonizers,having entered into treaties with the colonialpowers that pre- ceded the formationof United States.192Contrast this with tribes that were"terminated" by the federal government in the 1950sand laterrein- stated,193or even thosethat only recently gained federalrecognition for the firsttime.194 Combined with other circumstancesspecific to each tribe- such as being removedfrom their aboriginal homelands, deci- mated by disease, placed on a reservation,or funneledinto boarding schools- vastdifferences in tribalgovernance are inevitable.195Similarly

189. See id. 190. In fact,given the insularnature of some Indian tribes,such an examination mightbe whollyinappropriate, if not impossible. 191. See infranotes 469-481 and accompanyingtext. There is a dearthof empirical evidenceon thistopic. Presently,there are no studiesthat indicate whether and to what extentindividual Indians seek exitfrom tribal communities due to an absence of voice. 192. See generallyFrancis Paul Prucha, The Great Father: The United States Governmentand theAmerican Indians (1986) (discussingtreaties between tribal nations and colonialpowers). 193. See FelixCohen, Handbookof FederalIndian Law 89-97 (LexisNexisMatthew Bender2005) (discussingperiod of federalIndian policyknown as "Termination"during whichpolitical relationship between many Indian nationsand federalgovernment was destroyed);see also Getches,Wilkinson & Williams,supra note 80, at 206-16 (statingthat morethan 100 tribessuffered "termination" during this era and thatsome tribes,such as Menomineein 1973 and Klamathin 1986,were only recently reinstated). 194. See, e.g., 25 U.S.C. §§ 1751-1760 (2000) (authorizingfederal recognition of MashantucketPequot Tribevia ConnecticutIndian Lands ClaimsSettlement Act, Pub. L. No. 98-134,97 Stat.851 (1983)). 195. See Champagne,supra note 92, at 12 ("There is no single template [of governance]that will work for most tribal governments or communities,since mosthave unique culturaland institutionalarrangements and histories.").Champagne goes on to pointout vastdifferences between tribes, noting that 330 of the 560 federallyrecognized tribalcommunities in the UnitedStates are situatedin Alaskaand California,with little

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diverseare the bases upon whichtribes rest their governments. While evidencedoes not indicatethat one typeof foundational governing principles is preferableto others,studies do revealthat the absence of any foundationalgoverning principles can be extremelydetrimental to tribal governance.196 Foundationalprinciples are importantbecause theyembody those setsof beliefsand rulesaround which government is structured.197Prac- ticallyspeaking, foundational principles define the scope of leaders' authority,provide parameters for the exerciseof power,and lay out the citizens'basic rightsvis-a-vis the state.198 Critical to allowingthe polity to directchange withingovernment, foundational principles also set forth howchanges in governmentalstructure can be effectuated,199though, by design,foundational principles should not be easilyaltered.200 A core characteristicof foundationalprinciples is thatthey embody a nation's characterand values,give life to nationalidentity, and, in some sense, representthe group'scommon history.201 Foundationalprinciples are mostobviously evidenced by a written constitution.Constitutional governance is a familiarstructure in Indian land and less than300 memberseach. Id.; see also Graham,supra note 111, at 610-11 (discussingdiversity of Indian tribalgovernance, including that of Santa Ana Pueblo, MississippiChoctaw, Navajo, Cherokee, Hualapai, and NorthernCheyenne tribes). 196. See Cornell, Curtis& Jorgensen,supra note 82, at 10-11 ("Effectiveself- governmentrequires a foundationof basic rulesthat spell out howthe nationwill govern itself.**).This work does notdirectly map onto theanalysis of good Nativegovernance, as it drawson studiesthat focused primarily on theeconomic success of Indiantribes, which, as I explain,is onlyone factorto considerin determiningwhether a tribeis governingwell. See supranotes 87-89 and accompanyingtext. 197. Cf.Jed Rubenfeld,On Fidelityin ConstitutionalLaw, 65 FordhamL. Rev. 1469, 1482 (1997) (discussingprocess of constitution-making,through which polity commits "to writinga set of foundationalprinciples to governthe life of the nation"); StephenJ. Schulhofer,Two Systemsof Social Protection: Comments on the Civil-Criminal Distinction,with Particular Reference to SexuallyViolent Predator Laws, 7 J. Contemp. Legal Issues 69, 84 (1996) (discussing"foundational principles that frame the relation betweengovernment and the individual"in contextof "'civil' deprivationsof liberty"); AbnerS. Greene,Uncommon Ground, 62 Geo. Wash.L. Rev.646, 647 (1994) (reviewing John Rawls,Political Liberalism (1993), and Ronald Dworkin,Life's Dominion (1993)) (describingRawls's position that "citizens should developa commonset of foundational principlesof justice to undergirdgovernment"). 198. See Cornell,Curtis & Jorgensen,supra note 82, at 10-11. 199. See id. at 11. 200. See SimonChesterman, Imposed Constitutions, Imposed Constitutionalism, and Ownership,37 Conn. L. Rev.947, 949 (2005) (declaringthat constitutions "are and should be notoriouslydifficult to change"). 201. See MarkTushnet, The Possibilitiesof Comparative Constitutional Law, 108 Yale LJ. 1225, 1270-81, 1307 (1999) (contrastingexpressivist countries whose constitutions come out of "distinctivehistory" and reflect"distinctive character," with other nations whose constitutions"operate at a substantialremove from their nations' character"). Tushnet believes that the United States is an expressivistcountry; one where our Constitution"does expressour nationalcharacter." Id. at 1271.

This content downloaded from 128.97.244.188 on Wed, 11 Jun 2014 19:14:16 PM All use subject to JSTOR Terms and Conditions 1082 COLUMBIALAW REVIEW [Vol. 107:1049 country,as most tribestoday operate under a writtenconstitution.202 The CherokeeNation of Oklahoma,for example, functions based on a governmentalstructure that was firstset out in theirconstitution almost 200 yearsago.203 In recentyears, many tribes - includingthe Cherokees, the CitizenPotawatomi, Mississippi Choctaw, Confederated Salish and Kootenai Tribes of the Flathead Reservation,and the Northern Cheyenne- haveundertaken constitutional reform so thattheir constitu- tionsmore adeptlyaddress the challengestribal governments face in a contemporaryworld.204 Tribal leaders have recognizedsuch reformas constituting"an essentialfirst step in strengtheninggovernment stability, exercisinggreater political sovereignty, and enhancingprospects for in- creasedpolitical and economicdevelopment."205 Not all foundationalgoverning principles are capturedin the form of a writtenconstitution, however.206 For example,the Navajo Nation, thesecond largestIndian tribein America,governs pursuant to a written systemof tribalcodes ratherthan a constitution.207These writingscodify centuries-oldNavajo customarylaw.208 Similarly, many of the Pueblosof New Mexico,who stillgovern today in wayslargely consistent with their ancienttraditions, do not have writtenconstitutions but stillmaintain a constitutionalform of government.209Joe Kalt explainshow, for centuries,"the CochitiPueblo has sustainedcontinuity of collectiveorganiza- tionfor collective decision- and rule-making,although this organization wasnever written down as a 'constitution.'"210In suchcommunities, con- stitutionalprinciples, though unwritten, define the parametersof the in- digenouslegal systemthrough cultural requirements and sanctionsthat have been passed down orallyfrom family to familyfor hundredsor 1 thousandsof years.21 The formin whichfoundational principles are embodied- if they take a tangibleform at all- is not the criticalinquiry. Rather, from a governanceperspective, what is crucial is that a nation has identified

202. See Cornell,Curtis & Jorgensen,supra note 82, at 11. 203. See EricLemont, Overcoming the Politics of Reform: The Storyof the Cherokee Nationof OklahomaConstitution Convention, in AmericanIndian Constitutional Reform and theRebuilding of NativeNations, supra note 88, at 287, 290-93 (describingevolution of Cherokeegovernance from adoption of 1827 constitutionto present). 204. See Cornell, Curtis & Jorgensen,supra note 82, at 11; see also Kalt, Constitutional,supra note 88, at 192 (uItis strikinghow commonly one findsconstitutional reformoccurring within Indian nations now well-known for their political, social, cultural, and economicsuccess."). 205. Lemont,supra note 203, at 288. 206. See Kalt,Constitutional, supra note 88, at 188 (notingthat Great Britain, Israel, Navajo Nation,and severalNew Mexico Pueblos all have "constitutionalrule" without havingwritten constitutions) . 207. Cornell,Curtis & Jorgensen,supra note 82, at 11. 208. Id. 209. Kalt,Constitutional, supra note 88, at 188. 210. Id. 211. Id.

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foundationalprinciples upon whichit willbase itsgovernment.212 These principlesset the parametersfor all aspectsof the governmentand em- powerleaders and the polityalike to contemplate,examine, and, ifneed be, pressthe bounds of such foundationalprinciples for change. There is no questionthat the establishment or clarificationof foundational principles is hard work,213but the developmentand institutionalizationof foundationalprinciples is a processthat provides opportunity. Through thisprocess, tribes can developnationhood and become empowered"to establishthe languageand grammarof politicaldiscourse in a territory forthe years and decades to come."214Evidence shows that the endeavor is criticalto the successof indigenousnations.215

D. Providingfor theFair and NonpoliticalResolution of Disputes Good Nativegovernance requires that governments assure their nations'citizens that disputes will be dealt within a fairand nonpolitical manner.216This requirementis borne out by in-depthstudies of tribal communitiesdemonstrating that the presence of such disputeresolution forumsis integralto tribalnations' success.217 Citizens' beliefs that the resolutionsystem is politicizedand unfairfuel mistrust of government.218 Such sentimentsdrive members away from the communityand discour- age themfrom participating in triballife, thus "drainingcrucial assets fromthe nation."219 Fairforums for the resolutionof disputesare importantwith regard to tribes'dealings with outsiders as well.220In some cases,outsiders may

212. See id. at 187-91 (arguingthat "constitutional rule is ... human"and thus necessaryto existenceof "would be polities,"because absent constitutionalism, polities "are consignedto the Hobbesianpre-constitutional struggle"). 213. See Champagne,supra note 92, at 12-13 (notingthat process of constitutional reformis difficultone, and not everytribal nation is currentlyequipped to devote resourcesnecessary to project);cf. Feldman, Imposed, supra note 14, at 859-60, 879-85 (discussingtension between equality and autonomyin contextof constitution-buildingin Iraq and Afghanistan,particularly focusing on tensionsbetween goals of "local elites" versusthose of "theinternational community"). 214. Chesterman,supra note 200, at 950. 215. See Cornell,Curtis & Jorgensen,supra note 82, at 6-8 (describingstudies findingthat constitutional factors, including "practical sovereignty, . . . capable governing institutions,. . . and culturalmatch," were mostimportant in determiningindigenous nations'economic success). 216. See id. at 13-14; Rait, Constitutional,supra note 88, at 207-12 (explaining importanceof independentjudiciary for indigenous nation-building) . 217. See, e.g., Kalt,Constitutional, supra note 88, at 207-12 ("[T]he objectivedata indicatethat an independentcourt system, not subjectto usurpationof itsauthority and decisionsby the legislature or thechief executive, adds substantiallyto theability of Indian nationsto sustaineconomic developmentand create employmenton theirrespective reservations."). 218. See Cornell,Curtis & Jorgensen,supra note 82, at 13. 219. Id. 220. Id. at 6 (referringto "effectivegovernments" generally, noting that they "tend to have the respectof outsiders").

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be able to bringtheir claims only in a tribalforum.221 Such is the case, forexample, with civil rights complaints by non-Indian employees against tribalemployers.222 In such circumstances,it is importantthat tribes havemechanisms in place to adjudicatethese claims. Whereprotections are not present,outsiders may opt to reduce interactionswith tribes, which,in manycases, would be detrimentalto tribaleconomic viabil- ity.223Additionally, perceived unjust treatment of outsidersfuels motiva- tionsfor increased federal encroachment into intratribalmatters.224 Undoubtedly,Indian nations have made incredibleadvancements in creatingtribal resolution systems225 since many tribal justice systems were disruptedor dismantledby contactwith the colonial powers. But each tribe'sdispute resolutionsystem - in style,structure, funding, and resources- dependsheavily on thattribe's history and situation.For example, manyof the "terminated"California tribes were denied the opportunityto access much of the federalfunding earmarked for rebuilding indigenousjustice systems.226Accordingly, after being reinstated,many are onlynow in a positionto beginthe difficultprocess of creatingadju- dicatorybodies to resolvetribal disputes.227 Other tribes,by contrast,

221. Claimsbrought against tribal governments pursuant to ICRAmust be broughtin tribalforums. See supranote 7 and accompanyingtext. 222. See supranote 7 and accompanyingtext. 223. See Cornell,Curtis & Jorgensen,supra note 82, at 13-14 ("Aslong as people feel their claims will not be fairlyaddressed or that court decisions or appeals will be politicized,they will tend to mistrusttheir government and maytake their knowledge and theirenergy and go somewhereelse to live theirlives . . . ."). 224. See, e.g., San Manuel Bingo8c Casino v. NLRB,475 F.3d 1306, 1315 (D.C. Cir. 2007) (applyingNLRA againsttribe for violations of collectivebargaining rights) . 225. Getches,Wilkinson & Williams,supra note 80, at 420 (notingthere were seventy- one tribalcourts and thirty-two"Code of Federal Regulations"courts in 1978, and approximately275 tribalcourts and twenty-threeCFR courtstoday). Getches,Wilkinson and Williamsaffirm that "the numbers. . . tell onlypart of the storyof the growthand diversityof these unique and evolvinginstitutions that are in theforefront of modern tribal effortsto definethe meanings and scope of tribalsovereignty in UnitedStates society." Id. 226. See Carole Goldberg-Ambrose,Public Law 280 and the Problemof Lawlessness in CaliforniaIndian Country,44 UCLA L. Rev. 1405, 1417-18 (1997) ("Together, terminationand PublicLaw 280 formeda toxicbrew, eating away at thefunds authorized byfederal law forIndian welfare, education, and healthcare in California."). 227. For example, the KlamathTribes regainedfederal recognition in 1986 and produced a JudicialSystem Development Policy as part of the tribe'sEconomic Self SufficiencyPlan in 2000. KlamathTribes, The KlamathTribes Economic Self Sufficiency Plan (Oct. 12, 2000), at http://www.klamathtribes.org/ESSPWebO3.htm(on filewith the ColumbiaLaw Review).The Peoria Tribe of Indiansof Oklahomawas reinstatedin 1978, but no tribalcourt has been established.See PeoriaTribe of Indiansof Okla.,History, at http://www.peoriatribe.com/history.php(last visited Apr. 3, 2007) (on file with the ColumbiaLaw Review);Peoria Tribe of Indians of Okla., Tribal Government, at http://www. peoriatribe.com/tribal_government.php(last visited Apr. 3, 2007) (on file with the ColumbiaLaw Review).The ConfederatedTribes of Siletz was reinstatedin 1977 and reestablishedself-governance in 1992 witha writtentribal legal code and tribaljudiciary. See ConfederatedTribes of Siletz, History, at http://ctsi.nsn.us/History_and_Culture.html (lastvisited Apr. 3, 2007) (on filewith the ColumbiaLaw Review);Confederated Tribes of

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have had formaldispute resolution processes for almost two centuries,228 while many tribes exist somewhere between these two extremes. Tribal courts varydramatically in structure,style, and jurisdiction.229 For example, some tribal court systemsare based largely on the Anglo model, with trial and appellate courts fulfillingthe role of an independent judiciary.230 Other processes are drawn directlyfrom traditional customs and require claims to be brought before traditionalleaders or a group of elders.231 Courts may be designed to address conflictsdealing with specific subject matter,such as drug courts or specialized courts in- tended to handle only domestic violence or child custodymatters.232 In Indian countrytoday, tribes operate Peacemaker courts,intertribal appellate courts, and talkingcircles, among others.233 The subject matterof the cases being heard in tribalcourts requires judges to grapple with sophisticatedlegal analyses and controversialtop- ics. In fact,some of the most challenging issues facingAmerica today- such as the legalization of gay marriage and questions concerning the intersectionof race, identity,and citizenship- have been contemplated by tribalcourts. Justwithin the past fewyears, for example, the Supreme Court of the Cherokee Nation of Oklahoma heard cases regarding whether two Cherokee women could legally marry under Cherokee

Siletz,Tribal Ordinances, at http://ctsi.nsn.us/TribaLOrdinances.html(lastvisited Apr. 3, 2007) (on filewith the ColumbiaLaw Review). 228. See RennardStrickland, Fire and theSpirits: Cherokee Law fromClan to Court 53-72 (1975) (discussingevolution of governmentand justicewithin Cherokee Nation); StacyL. Leeds, CrossjurisdictionalRecognition and Enforcementof Judgments: A Tribal Court Perspective,76 N.D. L. Rev. 311, 319-22 (2000) (statingthat Cherokee have maintainedformal court system off and on since 1830s). 229. See generallyJustin B. Richland& Sarah Deer, Introductionto Tribal Legal Studies75-112, 313-58 (2004) (providingboth historicaland presentday overviewof tribaljustice systems). 230. See, e.g., CitizenPotawatomi Nation, Judicial, at http://www.potawatomi.org/ Government/Judicial/defaultaspx(lastvisited Apr. 3, 2007) (on filewith the ColumbiaLaw Review). 231. See, e.g., BarbaraAnn Atwood,Tribal Jurisprudence and CulturalMeanings of the Family,79 Neb. L. Rev. 577, 596 (2000) (describingPueblo's contemporarydispute resolutionforums, such as tribalelder-led talking circles). 232. See, e.g., id. at 592 (notingthat Navajo judicial systemis made up of seven districts,each withits own children'scourt and peacemakercourt); Eric L. Jensen& ClaytonMosher, Adult Drug Courts: Emergence,Growth, Outcome Evaluations, and the Need fora Continuumof Care,42 Idaho L. Rev.443, 444 (2006) (notingexistence of fifty- fourNative American tribal drug courts) . 233. See, e.g.,Atwood, supra note 231,at 592-98 (discussingvarious tribal courts and resolutionprocesses); Ronald EagleyeJohnny, The DuckwaterShoshone Drug Court, 1997-2000: MeldingTraditional Dispute Resolution with Due Process,26 Am. Indian L. Rev.261, 274-76 (2002) (discussingsuccessful development of drugcourt on Duckwater Shoshone Indian Reservation);Gloria Valencia-Weber,Tribal Courts: Custom and InnovativeLaw, 24 N.M. L. Rev. 225, 252 (1994) [hereinafterValencia-Weber, Tribal Courts](discussing Navajo PeacemakerCourt and NorthwestIntertribal Court System).

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law,234and whether the descendants of freed Black slaves- known as Freedmen- -could assert Cherokee citizenship as cultural, if not racial, Indians.235 As tribesare influenced by outsidersperhaps more than ever before, theyare seeking new ways to engage with contemporaryAnglo legal systems. As such, tribesacross the countryhave designed inventivedispute resolution mechanisms that creativelyfuse the traditionaland the modern.236 Some have been developed to pursue the dual goals of tribaljustice and communitybalance. The Duckwater Shoshone's drug court, which the Shoshone people have called "a successfulform of therapeutic jurisprudence," is one such example.237 The drug court is so effective- and is a compelling example of good Native governance- because it is rooted in the traditionof the people.238 The tribalmembers maintain a connection to the methods of instruction,guidance, and punishment of the drug court. These traditionsare described byJudge Johnny as being rooted in the Northern Paiute (Numu) and Western Shoshone (Newe) peoples' traditional dispute resolution processes.239 Judge Johnny describes these processes as historicallyoverseen by Indian doctors who took on the role of "medicine men" and also served as judges in tribal disputes.240 He explains that the Indian doctors "sought to returnspiri- tuality,harmony, and wholeness, to those affectedby a dispute or distur- bance," withrehabilitation, not revenge,serving as the "ultimategoal."241 Despite attemptsto squelch the traditionalresolution processes, the role of Indian doctors among Newe and Numu peoples survivedthrough oral tradition.242 The Shoshone's drug court has served as a model for other Indian nations, which similarlydraw on both ancient and modern practices to establish tribal legal systemsthat will assist in the development of tribal law.243 Such hybriddispute resolution forumshave sprung up all across

234. See Lois Romano,Battle over Gay Marriage Plays Out in Indian Country,Wash. Post,Aug. 1, 2005, at A2. 235. PressRelease, CherokeeNation, Cherokee Nation Court Rules on Freedmen Case (Mar. 7, 2006), availableat http://www.cherokee.org/home.aspx?section=story&id= 3ew0mQOIDrg=(on filewith the ColumbiaLaw Review). 236. See Getches,Wilkinson 8c Williams,supra note 80, at 449-50 (discussinghow tribeslike WinnebagoTribe of Nebraska,Hopi Tribe,and ColvilleConfederated Tribes use combinationof tribalcustomary laws and statutorylaw); Valencia-Weber,Tribal Courts,supra note 233, at 256-62 (discussingcreative use bytribal courts of customsand beliefsin formingjustice systems). 237. Johnny,supra note 233, at 261. 238. Id. at 265-69. 239. Id. at 265-66. 240. Id. at 265. 241. Id. at 265-66 (explainingthat "Euro-American concepts of justice of revenge and punishment"were not partof tribalculture, but imposedfrom without). 242. Id. 243. See id. at 275-76 (noting that forty-fivejurisdictions were implementingor studyingdrug courts by 1999); Kalt8c Singer,supra note 8, at 32-33.

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Indian country. Some, like the Court of Elders in the Sitka Community Association and the NorthwestIntertribal Court System,were designed to resolve, in particular,disputes that turn on questions of tribal cultural beliefs and customarytribal law.244 There has been a renewed and demonstrable commitmenton the part of Indian nations in recent years to integrateold and new waysinto tribaldispute processes to ensurejustice forlitigants.245 But the common thread linking these successful endeavors is the creation of judicial (or quasi-judicial) systemsthat are fair and nonpolitical.246 The fact that many such practices are not already in place is due, in large part, to the factthat when many tribesadopted theirconstitutions, the vastscope and extent of Indian nations' sovereign powers had simplynot been contemplated.247 This is one reason whyconstitutional reform has been so im- portantto indigenous nation-building: It has created an avenue for tribes to restructuretheir governing documents in order to adopt "explicitpro- tections for the independence of the judiciary."248 And several tribes, including the Cheyenne River Sioux and the Citizen Potawatomi Nation, have done so.249 Independent and nonpolitical dispute resolution systems provide importantassurances to both members and outsiders that their claims will be adjudicated fairly.250Their presence enhances the loyaltyand respect of members and outsiders alike because litigantsper- ceive that theyhave a genuine opportunityto bring their claims in a forum where resolution of the disputes will not be unduly influenced by political considerations.251

E. CulturalMatching

The final element of good Native governance is cultural matching.252 As evidenced by the name, "cultural matching" simply means there is a match between the "governing institutions"of the particular tribe and its "indigenous political culture."253 In other words, a tribal community'sideas regardingthe proper use and scope of authoritymust

244. Valencia-Weber,Tribal Courts, supra note 233, at 251-52. 245. See Kalt,Constitutional, supra note 88, at 198 (w[T]he challengeof devising legitimategoverning structures today is not a matterof 'going back'; it is ratherthe challengeof findinggoverning structures that match the realityof the contemporary culturesof Nativecommunities."). 246. See Cornell,Curtis & Jorgensen,supra note 82, at 13-14 ("This message[that disputeswill be treatedfairly, in nonpoliticalmanner] is criticalto the nation'ssuccess."). 247. Kalt,Constitutional, supra note 88, at 209. 248. Id. 249. Id. 250. Cornell,Curtis & Jorgensen,supra note 82, at 13. 251. See id. 252. See supranote 94 and accompanyingtext. 253. See Cornell,Curtis & Jorgensen,supra note 82, at 7 (defining"cultural match"); Cornell& Kalt,supra note 94, at 16 (describingsituations where governing institution did not matchindigenous culture).

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be reflectedin the tribe's governinginstitutions.254 Without this match, members will often see the governmentas illegitimate,resulting in its inabilityto garner the trustand loyaltyof the polity.255The requirement of culturalmatching spans all areas of tribalgovernance. Studies indicate that governmental institutions,policies, and economic development projects256are all vulnerable to failure if they are not a good cultural match.257 Failure among such institutionscan be devastating to an Indian nation. If a governmentfails, it may be unable to, interalia, maintain stability,produce economic gains, provide forbasic social services,or safeguard members' human rights.258 One of the most devastating effectsof colonialism on indigenous peoples - beyond the obvious historical atrocities of massacre, disease, and removal- has been the imposition of foreign governmental structures,property ownership systems, and religion.259These encroachments and others like them were devastatingto tribal communities largelybe- cause theywere a poor cultural match. Oftentimes,they undermined ex- istingIndian cultures,lifeways, and religions,breaking down triballife in waysfrom which it was difficult,if not impossible,for tribesto recover.260

254. See Cornell& Kalt,supra note 94, at 16 ("The crucialissue is the degree of matchor mismatchbetween formal governing institutions and contemporaryindigenous ideals . . . about the appropriateform and organizationof politicalpower.") . 255. See Cornell,Curtis & Jorgensen,supra note 82, at 7 (discussingloss of trustand allegiancein absence of culturalmatch between government and governed); Cornell& Kalt,supra note 94, at 16 (arguingthat new forms of governmentstill need to "resonate withdeeply-held community beliefs"). 256. See Cornell& Kalt,supra note 94, at 7 (notingthat old, or "standard,"view of tribaleconomic development incorporated philosophy that indigenous culture is obstacle to economicdevelopment, contrasting this with "new," "nation-building" approach that producesresults based on beliefthat "[i]ndigenous culture may be not an obstaclebut an asset"). 257. See, e.g., Kalt,Constitutional, supra note 88, at 202 (discussingimplications of poor culturalmatch between Oglala Sioux Tribe of Pine Ridge Reservation'sIRA-style governmentand itsindigenous political institutions, which culminated in "civilstrife and violence");Cornell & Kalt,supra note 94, at 10-11 (studyingnegative implications of poor culturalmatch in termsof tribaleconomic development) . 258. See Brooks,supra note 40, at 1160-62 (describingcharacteristics offailed states). 259. See, e.g., DawesAct of 1887,ch. 119, § 1, 24 Stat.388, 388-89 (repealed2000) (breakingof communaltribal lands into individual parcels that devastated tribal land base and Indian culture);Allison M. Dussias,Ghost Dance and Holy Ghost: The Echoes of Nineteenth-CenturyChristianization Policy in Twentieth-CenturyNative American Free Exercise Cases, 49 Stan. L. Rev. 773, 776-805 (1997) (discussingU.S. government's attemptsto remove Indians fromtheir land, destroyindigenous culture, and instill Christianand individualproperty philosophies). 260. Consider,for example, the commentsof WilmaMankiller, the former Principal Chiefof the CherokeeNation of Oklahoma,in referenceto the AllotmentAct, which brokeup communaltribal lands and imposedindividual ownership: Whathappened to us at the turnof the centurywith the loss of land,when our land was dividedout in individualallotments, had a profoundirreversible effect on our people. . . . Whenwe stoppedviewing land ownershipin commonand viewingourselves in relationto owningthe land in common,it profoundly altered

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Manygovernmental structures put in place pursuantto the IRA,for example,constituted a poor culturalmatch with existing tribal governance systems.261Joseph Thomas Flies-Away,a member of the Hualapai Tribe,describes how the IRA's centralizedstyle of government,including a powerfultribal council, supplanted the tribe'sexisting complex band and extendedfamily system of governance.262Flies-Away contends that "theimposed government design was not accordantto Hualapai culture and tookthe Hualapai awayfrom its customary and traditionalmeans of governance,"263causing the tribeto struggle.As withthe Hualapai, a poor culturalmatch between an external,Western-style government and internalindigenous political institutionshas had devastatingconse- quences forIndian nations.264In some cases,this has facilitatedthe de- scentof tribesinto chaos.265Many of these governmentalsystems still remain,sixty years later, unchallenged by currenttribal people.266 The lingeringeffects of colonialismsuggest that, until theypossess the re- sourcesand wherewithalto change,some tribeswill continue to struggle with policies, programs,and even religionsthat are a poor cultural match.267 Manytribes, however, have begun to contemplatethe difficultchal- lengesassociated with reforming governmental structures to achievecul- turalmatch, as theystruggle to advance theircultural and politicalsur- vivalby linking their traditional existence with their sovereignty. Rather thanseeking to shieldtheir "timeless" cultures from modernity - as out- sidersoften assume268 - Indian nationsstrive to maintaintheir cultural

our senseof communityand our socialstructure. And so thathad a tremendous impacton our people and we can nevergo back. The NativeAmericans: The Tribes of the Southeast: PersistentCultures of Resilient People (TurnerProductions, Inc. televisionbroadcast 1994). 261. See Kalt,Constitutional, supra note 88, at 202 (discussinghow IRA systemof governmentsent Oglala Sioux Tribe of Pine Ridge Reservation"down the path of hardship"). 262. Flies-Away,supra note 162, at 149. 263. Id. 264. Cornell8c Kalt, supra note 94, at 16 (notingthat governments organized under IRA followedpattern that was poor culturalmatch for many tribes) . 265. See Lemont,supra note 203, at 287 (describingconstitutional crises of Cherokee Nation in whichtwo competinggovernments were formedand tribalcouncil stopped conductingbusiness for a year). Lemont additionallynotes that "[t]his government instabilityhas oftenbeen attributedto outdated,Western-introduced tribal constitutions - documentsthat to varyingextents lack bothlegitimacy within tribal communities and the institutionalfoundations necessary for the effective exercise of governmentaction." Id. at 287-88. 266. Champagne,supra note 92, at 12 ("In manyother communities, colonial IRA constitutionalgovernments or non-IRAconstitutions have operatedfor more than sixty yearsand are oftentaken by many community members as the givengovernment."). 267. See id. at 20-21. 268. See, e.g., Sunder,Dissent, supra note 29, at 559-60 (discussingSanta Clara Pueblov. Martinez,436 U.S. 49 (1978), and implyingthat position of Martinez represented

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differencewhile living in a modern world.269 As they have long done, tribal people in America often seek to live separate and apart from the dominant societyand remain free to govern themselves.270At the same time,indigenous peoples desire to participatein policies being shaped by national and global governinginstitutions that pertain to theircontinued culturaland political existence.271The tools of modernity- such as tech- nology and the free market- are being cautiously employed as Indian nations negotiate their own unique place withinthe modern world.272 At times,however, the struggleto reconcile modernitywith tradition plays out in various aspects of tribal culture, from the creation of tribal dispute resolution systems,to the election of leaders, to definingappro- priate avenues for economic development. These concerns are aptly reflected in a statementby Rebecca A. Miles, who, at thirty-three,became the firstwoman to lead the Nez Perce Tribal Executive Committee in Idaho: We've become less traditional,and I'm part of that,and thatis a tough thingfor me to say. . . . I'm a modern leader in a modern government,and that is good and bad. How does somebody like myselfensure that my leadership worksto protect the traditions thatare so sacred to us- and thatmay not have included a woman in this role?273 Miles's statement exemplifies the delicate cultural evolution that sometimes creates tension withintribal communities. A similarphenom- enon can be seen at Sandia Pueblo, one of the more traditionaltribes in the United States.274 There, thirty-three-year-oldLynn Trujillo left the pueblo to study at Dartmouth College, later returning to work as her tribe's attorneyafter receiving a law degree.275 Trujillo admits that she has clashed with her father over the role of women and the future of democracy within the pueblo.276 Despite these tensions, she firmlybe- voice of modernityand change,while tribeand SupremeCourt held visionof Pueblo cultureas unchanging,fixed, and "hermeticallysealed"). 269. See Coombe, supra note 117, at 128, 131 (describingefforts of indigenous people to "promotemeasures that would ensure local controlover resources"while simultaneouslyusing "bicultural education" to "revitalizelocal culturaldifferences"). 270. See CharlesF. Wilkinson,American Indians, Time, and theLaw: NativeSocieties in a ModernConstitutional Democracy 14, 16 (1987) (assertingthat core tenetof federal Indian law has alwaysbeen to create"measured separatism" to allow tribesto live apart fromdominant culture). 271. See Coombe, supra note 117, at 131 (describingparticipation of networksof indigenouspeoples" in developing"political strategies 'for the defense of territory,culture and identitylinked to particularplaces'"). 272. See id. at 133. 273. Davey,supra note 171. 274. See Riley,Abramoff, supra note 116 (describinghow tribehas used revenues fromcasino for,among otherthings, programs to protectnatural environment around tribe'ssacred sites,land purchasesto insulatesmall village community from dominant culture,and buffaloherd used forreligious ceremonial purposes). 275. Id. 276. Id.

This content downloaded from 128.97.244.188 on Wed, 11 Jun 2014 19:14:16 PM All use subject to JSTOR Terms and Conditions 2007] GOOD (NATIVE)GOVERNANCE 1091 lievesthat the pueblo willonly survive if it is able to hang on to itstribal traditions.277For Trujillo,this means the tribewill have to findits own "balancebetween communal rights and individualrights, between tradi- tionalways of lifeand the developmentthat's going on."278 Thoughindigenous peoples struggleto meld the traditionaland the modern279- and, specifically,to incorporatenew waysof thinkinginto triballife in a waythat is a culturalmatch - theirmany years of successin doingso has facilitatedtheir continued existence.280 The abilityof tribal culturesto surviveis remarkable,particularly given the vastassimilative effortsthey have confronted for hundreds of years.281 Part of thissuccess is due to indigenouspeoples' understandingof theirplace in a changing world,particularly in relationto othersovereigns. In thisregard, tribes have enteredinto intersovereignrelationships which, when theyare an appropriatecultural match, can serveas effectivemeans of actuallyfur- theringautonomy and self-determination.282As Judith Resnik has so aptlypointed out, in our globalizedworld all sovereignsare interdependent to increasingdegrees, and, at times,compete to exerciseauthority "in thesame space."283Despite a long-standingdesire for "measured separatism"and thefreedom to livewithout encroachment by the dominant society,284tribal nations have long understoodthat, in some instances, thebest way to servetheir communities is to workinterdependently with othersovereigns to achievegood Nativegovernance. This willingnessto engage as interdependentsovereigns may, in fact,reflect practices that

277. Id. 278. Id. 279. See Lemont,supra note 203, at 288 (noting that tribes"are engaged in a fundamentalrethinking of how to balance entrenchedWestern institutions with often competingtraditional, cultural, and politicalvalues**). 280. See Coombe, supra note 117, at 133 (citing Marshall Sahlins, What Is AnthropologicalEnlightenment? Some Lessonsof the TwentiethCentury, 28 Ann. Rev. Anthropologyi, ix (1999)). For example,the CochitiPueblo have incorporatedgolf - a primarysource of economic development- into theirtraditional lives. Selcraig,supra note 111. Tribal elders say that golf has "helped nurturea more traditionallife by encouragingchildren to walk in naturefor theirfour-hour rounds, to be honestwith themselvesand withothers and to practiceself-discipline.** Id. One leader states: "The Cochitiare a verytraditional people. . . . Golfis keptin perspectivehere, the way it should be." Id. 281. See DavidH. Getches,A Philosophyof Permanence: The Indians'Legacy for the West,J. West,July 1990, at 54, 62-63 ("The remarkablepart of the historyof American tribesis not thatthey were victims of unrelentingattempts to changethem. But it is truly astoundingthat they did manageto hold ontosome land and thatthe core of theirculture remainsintact.**). 282. See CaroleGoldberg & Duane Champagne,Is PublicLaw 280 Fitfor the Twenty- FirstCentury? Some Data at Last,38 Conn. L. Rev. 697, 725-26 (2006) (discussinghow retrocessionallowed one tribeto createtribal police forcethat, in conjunctionwith state authorities,resulted in declinein highwaydeaths and betterunderstanding of benefitsof concurrentjurisdiction) . 283. Resnik,Tribes, supra note 23, at 134. 284. See Wilkinson,supra note 270, at 14-16.

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are a good culturalmatch for some tribes.After all, manyIndian nations formedconfederacies and alliancesin pre-and post-contactAmerica to facilitatetheir survival and continuedexistence. Some confederacies- suchas theHaudenosaunee, which is comprisedof theSix Nationsof the Iroquois Confederacy- are stillallied today,and have become powerful interdependentsovereigns.285 Strategicalliances between tribes and othersovereigns can be seen in a rangeof areas,but perhapsmost often in the area of criminallaw. Because of thebizarre criminal jurisdictional scheme that has arisendue to Congressand the SupremeCourt acting at odds withone another- and, far too often,against the interestsof tribalsovereignty - criminal jurisdictionhas long been a problemin Indian country.286As a result, manytribes now have cross-deputizationagreements with state law en- forcementto facilitatecooperation in criminalmatters.287 The resulting agreementscan vary,but theytypically authorize tribal police to arrest anyviolator of statelaw, whether Indian or non-Indian.288These agreementscan be of greatbenefit to tribalpolice who,without such agreements,would be impotentto arrestnon-Indians for crimes committed on triballands.289 Though imperfect,cross-deputization agreements facilitate the pooling of resourcesbetween tribes and states,furthering the shared goal of law enforcementand the tribe'sinterest in greaterself- governance.290 Interdependenceamong tribes and statesis seen in a varietyof other areas as well. Pursuantto the Indian GamingRegulatory Act,291 tribes and statesare now engagedin intensenegotiations regarding the scope and termsof gamingcompacts that benefit both sovereigns.292Other intersovereignrelationships are builtaround issues of environmental protectionand naturalresource management. For example,the Nez Perce havetaken a lead rolein a combinedtribal, state, and federalgovernmen-

285. See Ray Halbritterwith Steven Paul McSloy,Empowerment or Dependence? The PracticalValue and Meaningof NativeAmerican Sovereignty, 26 N.Y.U.J. Int'l L. & Pol. 531, 534-39 (1994) (describingHaudenosaunee people and historyof confederacy). 286. See generallyKevin K Washburn,American Indians, Crime, and the Law, 104 Mich. L. Rev. 709 (2006) [hereinafterWashburn, American Indians] (describing challengesassociated with criminal jurisdiction in Indian countryand suggestingpossible reforms). 287. See Goldberg& Champagne,supra note 282, at 727-28 (describingcross- deputizationprocess). 288. Id. 289. Id. at 728. These agreements,however, suffer from the drawbackthat tribal police mayonly arrest non-Indians for violation of state,not tribal,law. Id. 290. Id. at 727-28. 291. 25 U.S.C. §§ 2701-2721 (2000). 292. See KevinK Washburn,Federal Law, StatePolicy, and Indian Gaming,4 Nev. LJ. 285, 286 (2004) (commentingon tribaldependence on state law for legalityand profitabilityof Indian gaming).

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tal effortto protectgray wolf populations in the RockyMountains.293 The ColumbiaRiver Inter-Tribal Fish Commissionis comprisedof many tribesworking together to save the salmon of the PacificNorthwest.294 And the Great Lakes Indian Fish and WildlifeCommission, a tribally chartedintertribal organization, has teamed up with the U.S. Forest Service to protect treaty-guaranteedhunting, fishing, and gathering rights.295 These arejust a fewexamples that highlight the importance of incor- poratingculturally matched facets of modernlife into tribal communities to advancetribal governance objectives. In orderfor tribes to engage in good Nativegovernance, it is essentialto devisegovernmental programs and institutionsthat reflect each nation'sparticular history, values, and vision. As studiesof tribalgovernments bear out, a solid culturalmatch betweenthe tribe's governing institutions and itsindigenous political cul- tureis criticalto the pursuitof good Nativegovernance.296

III. ExaminingGood Native Governance

Many Indian nationsare alreadyengaged in good Nativegovern- ance. Tribes are selectivelyimplementing external policies and laws whilestill holding onto tribaltradition in waysthat facilitate the survival of indigenousculture. In PartII, I havegiven many examples of howthe requisiteelements of good Nativegovernance are successfullymanifested in thedaily activities of Indian nations.297 In thediscussion that follows, I willfocus on a fewexamples of practicesor traditionswithin Indian na- tionsthat would appear, from an outsideperspective, to fallshort of good governance.By focusingon these particularexamples I seek to show that,in some cases,good governanceand Nativegovernance part ways. Nevertheless,I seek to demonstratethat Native governance - evenwhen radicallydifferent from the growingglobal standard- can nevertheless be "good."

293. Kalt& Singer,supra note 8, at 11 (citingHarvard Project on Am. Indian Econ. Dev., Idaho Gray Wolf RecoveryWildlife Program, at http://www.ksg.harvard.edu/ hpaied/hn/hn_1999_wolf.htm(last visitedApr. 3, 2007) (on filewith the ColumbiaLaw Review)). 294. Id. (citingHarvard Project on Am. Indian Econ. Dev., Columbia RiverInter- Tribal Fish Commission,at http://www.ksg.harvard.edu/hpaied/hn/hn_2002_fish.htm (lastvisited Apr. 3, 2007) (on filewith the ColumbiaLaw Review)). 295. Id. at 27 (citingHarvard Project on Am. Indian Econ. Dev., TreatyRights/ NationalForest Memorandum of Understanding,at http://www.ksg.harvard.edu/hpaied/ hn/hn_2000_mou.htm(last visited Mar. 6, 2007) (on filewith the ColumbiaLaw Review)). 296. See Cornell8c Kalt,supra note 94, at 16. 297. See supraPart II.

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A. TraditionalIndigenous Dispute Resolution Practices As withmany indigenous people, traditionalNavajos believe that all thingsin the universeare interconnected.298The divineand thesecular are inseparable,and the activities,ceremonies, and ritualsof day-to-day lifeare designedto securebalance in the universe.299In the Navajo system,extended family networks play a criticalrole in achievingthis sacred balance.300 The traditionalNavajo world view, combined with their unique clan structure,supplies the contextualframework within which the Navajo Peacemakingsystem functions.301 Potentiallitigants in the Navajo Nationhave the optionof avoiding litigationand the adversarysystem by takingtheir case to a Peacemaker Court.302The naaVaani,or peacemakers,are leaderswho are selectedby the community.303Like all thingswithin the traditionalNavajo world, the peacemakingprocess is infusedwith ceremony, tradition, and religious significance.304Proceedings are generallycommenced with prayer, whichis used to readythe naaVaaniiand theparticipants for the reconcil- iationprocess.305 Navajo cultureprovides that all membersof the com- munitywho are affectedby the disputemay attend.306 During the proceedings,everyone has an opportunityto be heard.307Chief Justice Yazzieof theNavajo Supreme Court explains the reason for a community focusthat reaches beyond the victimand the perpetrator: If,for example, someone hurts me, myfamily is involvedin the disputebecause I am hurt. If I hurtsomeone else and I am obligedto paycompensation to makeup forthe injury, my fam- ilyis involvedbecause theyhave a responsibilityto help pay the

298. AngelaR. Riley,Recovering Collectivity: Group Rights to IntellectualProperty in IndigenousCommunities, 18 CardozoArts & Ent. LJ. 175, 224 (2000). 299. Id. 300. See CaroleE. Goldberg,Overextended Borrowing: Tribal Peacemaking Applied in Non-IndianDisputes, 72 Wash. L. Rev. 1003, 1013 (1997) [hereinafterGoldberg, Overextended](describing "the sacred nature of balance or orderwithin the traditional Navajoworld-view"). 301. See id. at 1014. In additionto PeacemakerCourts, the Navajo Nation also has an Anglo-stylejudicial system. The Navajo Nation court systemin its totalityhears approximately100,000 cases a year, thus developinga robust Navajo common law. Getches,Wilkinson & Williams,supra note 80, at 421. 302. RobertYazzie, "Life Comes fromIt": NavajoJustice Concepts, in NavajoNation Peacemaking:Living Traditional Justice 42, 51-52 (MariannaO. Neilsen& JamesW. Zion eds.,2005) [hereinafterYazzie, Life Comes fromIt]. Peacemakingcan also be invokedat otherperiods in theadversary process. See RobertYazzie, Healing as Justice:The Navajo Response to Crime, in Justiceas Healing: IndigenousWays 121, 130-31 (Wanda D. McCaslined., 2005) [hereinafterYazzie, Healing]. 303. Yazzie,Life Comes fromIt, supranote 302, at 51. 304. Id. at 50 ("Outsidethe Navajo perspective, a 'ceremony'is seen as a gatheringof people to use ritualto promotehuman activity.To Navajos,a ceremonyis a means of involvingsupernatural assistance in the largercommunity of reality."). 305. Goldberg,Overextended, supra note 300, at 1014. 306. Yazzie,Healing, supra note 302, at 124. 307. Id. at 125.

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compensation. This is one of the waysthe Navajo clan worksas a legal system.308 The role of the peacemaker is to "talk out" the problem, but not to judge.309 Rather,after a period of prayerand afterthe participantshave had a chance to speak, the peacemakers guide the participants to a resolution.310 Even though the Navajo Nation also maintains a thriving"Anglo- style"court system,the parties or the judges may redirect cases to the Peacemaker Court.311 Thus, if the parties consent to go through the Peacemaking system,a criminal dispute is converted into a civil one.312 Oftentimes,criminal matters are never even referredto the police or law enforcementdue to logisticaland pragmaticconstraints.313 Peacemaking can be used to deal with almost any conflictarising withinthe tribe,including problems related to alcoholism and addiction, domestic violence, sex-relatedoffenses, and other familydisputes.314 Peacemaking is effectivefor the Navajos because the principles upon which Peacemaking is constructedare a "match" with Navajo culture.315 Not having been imposed from the outside, Peacemaking in the Navajo Nation is organic and built from traditional Navajo views about the world.316Though the Peacemaker Court was only officiallyestablished in 1982 in response to dissatisfactionwith the Anglo model of "verticaljustice,"317it is, in the words of ChiefJustice Yazzie, "[A] modern legal insti- tutionthat ties traditionalcommunity dispute resolution to a court .... It is a means of reconcilinghorizontal (or circle) justice to verticaljustice by using traditional Navajo legal values . . . ."318 Peacemaking serves the needs of relativelysmall, close-knit,clan-based communities like those that comprise the Navajo Nation, where citizens must have positive relationships with one another for there to be social harmony.319Accord- ingly,the Navajo Peacemaker Court- reflectiveof the Navajo's belief sys-

308. Id. at 124. 309. Id. 310. Id. at 125-26. 311. See Yazzie, Life Comes from It, supra note 302, at 51. 312. Valencia-Weber, Tribal Courts, supra note 233, at 252. 313. Yazzie, Healing, supra note 302, at 131 ("There is [another] use of peacemaking .... The Navajo Nation is 25,000 square miles big. ... [It does not] have enough police to patrol that large an area."). Due to these constraints,Chief JusticeYazzie furtherstates, "Rather than call the police, many people call a peacemaker." Id. 314. Id. at 132. 315. The existence of "over 250 certified peacemakers in the Navajo Nation" and their "[handling] of hundreds of cases" attest to the effectivenessof the "peacemaker dispute resolution system." See Getches, Wilkinson & Williams, supra note 80, at 428. 316. Yazzie, Life Comes from It, supra note 302, at 51. 317. Id. 318. Id. 319. Id. at 48 (explaining how Navajo clanship establishes justice system that promotes k'e, or "deep, learned emotional feelings,"which in turn "create[s] solidarityof the individual with his or her clan").

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tern- is structured around reconciliation and restorativejustice, not conflict.320 Peacemaking constitutesgood Native governance for the Navajo for both philosophical and pragmatic reasons. First,it has legitimacywithin the communitybecause it is based on the Navajo world view and is inex- tricablyintertwined with the Navajo's beliefsabout the universe.321Thus, Peacemaking arises fromwithin the tribe's traditionalsystems and oper- ates withinNavajo culture as an authentic,unromanticized Navajo wayof resolvingdisputes and keeping the communityconnected. Peacemaking also embodies good Native governance because it re- sponds to the pragmatic concerns raised by the jurisdictional nuances that exist withinIndian country.322Because states lack jurisdiction over crimes committed by Indians against Indians on the reservation,323the burden to prosecute these crimes largely falls on the federal government.324But federal prosecutorsmay be too overburdened (or politically uninterested) to prosecute felonies like domestic violence and child abuse thatare funneled into the federal criminaljustice system.325More- over, given the extreme isolation of many Indian reservations,Indian victims and defendants must sometimes travel hundreds of miles to the nearest federal courthouse326to be tried by a jury of "peers"- a jury that

320. Yazzie,Healing, supra note 302, at 127 ("Nativejustice is restorativejustice. It restorespeople to good relationshipswith each other."). 321. See Goldberg, Overextended,supra note 300, at 1014-15 (explaining connectionbetween traditional Navajo rituals and beliefsystems and modernpeacemaking courts);Yazzie, Life Comes fromIt, supra note 302, at 42 ("Our religiousleaders and elders say thathuman-made law is not true 'law.' . . . [W]hile Anglo-Europeanlaw is concernedwith social control by humans, Navajo law comes from creation. It concernslife and the means to live successfully.");see also ChristineZuni Cruz, Four Questionson CriticalRace Praxis: Lessonsfrom Two Young Livesin Indian Country,73 FordhamL. Rev. 2133, 2155 (2005) (explaininghow Anglo law conflictswith traditionaldispute mechanismsof Pueblo, whichfocus on conceptssuch as healing,kindness, mercy, and disciplinethat humble perpetrator). 322. Washburn,American Indians, supra note 286, at 715 (describingfederal laws that comprisebasis of criminaljurisdiction in Indian countryas creating"a complex jurisdictionalframework"). 323. Worcesterv. Georgia,31 U.S. (6 Pet.) 515, 561 (1832) (statingthat "the laws of Georgiacan have no force"within Indian territorydue to tribalsovereignty). 324. The federalgovernment has jurisdiction pursuant to the MajorCrimes Act over enumerated"major" crimes, such as murder,manslaughter, kidnapping, and assault, committedby Indians againstIndians within Indian country.18 U.S.C. § 1153 (2000). Tribes have concurrentjurisdiction over such crimes,but pursuantto ICRA may only imposepenalties of up to a $5000 fineand one-yearimprisonment. 25 U.S.C. § 1302(7) (2000). Accordingly,serious felonies will not be prosecutedto thefullest extent of thelaw unlessthe federalprosecutor takes action. 325. See Washburn,American Indians, supra note 286, at 733 ("Becauseof the non- reviewabilityof decisions to decline prosecutionor to under-prosecute,the weak or nonexistentpolitical accountability of federalprosecutors to tribalcommunities, and the lack of media interestin Indian countryprosecutions, federal prosecutors feel little externalpressure to treatIndian countrycases seriously."). 326. Id. at 768.

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will verylikely be entirelynon-Indian and will have little if any contact with the way of life on the reservation.327This troubling realityhas fu- eled the perception among some reservationIndians that the Anglo system is unjust to both the victimand the defendant.328 Thus, for many Indians, intratribalresolution of such disputes may be a far more desirable alternative.329 But the Peacemaker Court and similar bodies are unlikelyto satisfy the standards of good governance for a varietyof reasons. Liberal democratic theory- from which the notion of good governance is derived- requires a strictseparation between the state and religion.330 Though theoriesof retributivejustice in America, for example, may be deeply embedded in religiousviews, they must not reflecttheir religious roots when applied by the state's hand. The liberal state forbidsentanglements between religion and law.331 Thus, one potential problem with the Peacemaking Court from a good governance perspective is evident. Peacemaking works for the Navajo preciselybecause it is an infusion of the religious or sacred with day-to-daylife.332 There is no separation.333 Peacemaking is inherently "religious' in that it draws on ceremony, prayer, ritual, and the supernatural to restore balance, harmony, and peace to the world. Thus, Peacemaking violates one of liberalism's most sacred tenets: Religion and the state shall not mix.334

327. Id. at 762. 328. See id. at 710-15 (describingdifficulties faced by defendants,witnesses, and attorneysinvolved in Indian countrycases, and concludingthat "federal justice in Indian countrysimply may not accord with many of thebasic legal principles that guide American courts,prosecutors, and law enforcementofficials"). 329. See supranotes 311-314 and accompanyingtext. 330. See MichaelW. McConnell,Why Is ReligiousLiberty the "FirstFreedom"?, 21 CardozoL. Rev.1243, 1244 (2000) ("In manycircles today, religion is seen as an essentially illiberalphenomenon in our publiclife - a challengeto therational and tolerantethos of modernliberalism."). 331. See Goldberg,Overextended, supra note 300, at 1016 ("U.S. legal and political cultureformally and practicallydisavows any penetrationof religioninto law." (citing Stephen Carter,The Cultureof Disbelief: How AmericanLaw and PoliticsTrivialize ReligiousDevotion (1993))). 332. This is one reason whythe "borrowing"of indigenousjustice techniquesby nonindigenouscommunities has been criticized.See id. (notingthat there is "no ready equivalent"to Peacemakingin non-Indiansociety). 333. See id. at 1015 ("[T]raditionaltribal law and tribalsacred lifeare thoroughly intertwined."). 334. See Yazzie,Life Comes from It, supra note 302, at 42 ("Our religiousleaders and elderssay that human-made law is not iaw.' Law comesfrom the HolyPeople who gave the Navajo people the ceremonies,songs, prayers,and teachingsto know it"). The conflictbetween liberalismand theocraticgovernment has particularresonance in contemporarytimes. For example,this debate playedout in the relativelyrecent drafting and adoptionof the Iraqi constitution,particularly as the United Statessimultaneously tried to promotethe dual goals of democracyand secularism.But, as scholarswho consultedon the draftingof the Iraqi constitutionhave noted,the morefreedom Iraqis had to design their constitution,the more theocraticit became, such that "more democracymeant more Islam." Noah Feldman8c Roman Martinez, Constitutional Politics

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Peacemaking may violate other principles of good governance as well. First,it is not clear that Peacemaking is sufficientlytransparent.335 As one scholar contends, "Seeing the decisionmakerin action and observ- ing who has influenced the process is essential to a sense of decisionmaking fairness,rationality, and neutrality,as well as to public understanding of the policy results."336Part of this aspect of transparencyis the availa- bilityof writtendecisions to "provide[ ] a check against the inappropriate and unaccountable exercise of authority."337While Peacemaking may be sufficientlytransparent for the Navajo, its transparencymay be less evident from an outsider's perspective. In one sense, Peacemaking is an embodiment of the ultimate act of community. It is more inclusive and open to affectedparties than, for example, the American system. On the other hand, without court reporters,sworn testimony,or rules of evidence,338Peacemaking may be called into question fora lack of openness or insufficientdue process.339 Moreover, when cases are funneled into Peacemaking, criminal acts are dealt with as civil matters.340This, too, may be objectionable due to reduced federal oversightof civil cases coming from tribal court, as well as the perception that Peacemaking consti- tutesthe "privatization"of criminalmatters.341 The privatizationof criminal law has long been disfavoredas out of alignmentwith the values and mores of the liberal democratic commitment.342 Some of these criticismsturn on the definitionalscope of the attributes encompassed withingood governance. Because good governance is stillrelatively amorphous and its termsmay take on differentmeanings in various contexts, it is difficult to ascertain with precision whether - Peacemaking- and other such indigenous justice systems would be found to run afoul of good governance.343 Nevertheless,the freedom of Indian tribes to deal internallywith criminal mattersfree from interfer- and Textin theNew Iraq: An Experimentin IslamicDemocracy, 75 FordhamL. Rev.883, 884 (2006). 335. Cf. Esty,supra note 56, at 1530 ("Transparencyis a core good governance attribute. . . ."). 336. Id. 337. Id. at 1529. 338. See Yazzie,Healing, supra note 302, at 125 ("Navajopeacemaking has a place for people to expresshow theyfeel without rules of evidenceto quiet them."). 339. See Esty,supra note 56, at 1530 (u[O]pennessand some opportunityfor public participationhave . . . emergedas nearlyuniversal principles of good governance."). 340. See supranote 312 and accompanyingtext. 341. See supra notes327-330 and accompanyingtext. 342. Curiously,the Anglo system is nowborrowing from indigenous justice systems in the formationof nonadversarialstyle dispute resolutionprocesses. See generally Goldberg, Overextended,supra note 300, at 1017-19 (warningof difficultiesof uninformedimportation of indigenousjustice systems into non-Indian legal culture). 343. As Carole Goldberg pointed out to me, many of the perceivedinfirmities surroundingPeacemaking may be curedsimply by the factthat it requiresthe consentof bothparties. E-mail from Carole Goldberg,Professor of Law,UCLA, to author(Mar. 28, 2007) (on filewith the ColumbiaLaw Review).

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ence by the dominantsociety was curbed long ago. Both the Major CrimesAct of 1883344and ICRA345were inspiredby deep suspicionof Indianjustice on thepart of thedominant society.346 Both pieces of leg- islationextended greater federal control over criminaljustice matters withinIndian country.347As good governancestandards continue to flourish,and as the Westbecomes increasingly skeptical of governments thatexpressly concede connectionsbetween religion and law,348it is not far-flungto suggestthat the PeacemakerCourts, as one example,could come underintense scrutiny by outsiders.

B. UndemocraticForms of Governance In the internationalcontext, democracy is almostalways included as an essential corollaryto or component of good governance.349 Accordingly,as effortsto spread good governancearound the world have increased, democracy promotion has become a significant internationaland U.S. policy objective.350This remains true even thoughthe exportationof democracyhas certainlyhad itsproblems, including,inter alia, the emergenceof illiberaldemocracies abroad.351

344. 18U.S.C. § 1153 (2000). 345. 25 U.S.C. §§ 1301-1303 (2000). 346. See Riley,Illiberalism, supra note 1 (manuscriptat 4-5) (notingthat IRCA enactmentwas tied to beliefthat tribal governments were corruptand unfair); see also supranote 26 (describingMajor Crimes Act's enactment as responseto criticismsof tribal justice). 347. See Riley,Illiberalism, supra note 1 (manuscriptat 52-55) . 348. See Feldman,Imposed, supra note 14, at 861-65 (discussinghow constitutional reformersin Iraq wantedto keep Islam out of constitution,though this was inconsistent withviews of some Iraqi people). 349. See, e.g.,Poluha & Rosendahl,supra note 13,at 2 (contendingthat international discoursehas defined"good governance"as requiringfree and fairelections); Botchway, supra note 12, at 189 (arguingthat democracyis essentialcomponent of legitimate government);Esty, supra note 56, at 1507 ("Democracyis seen in the modernday as fundamentalto legitimategovernance."). It should not be forgotten,however, that democracyitself is a nuanced and complicatedterm. Afterall, the modern liberal democracy- such as that in America- was designedso that the people would have a limitedrole in electingofficials and effectingpolicy changes. MarcF. Plattner,Response, Liberalismand Democracy:Can't Have One Withoutthe Other,Foreign Aff., Mar.-Apr. 1998,at 171, 172, 174. 350. See Koh, Exceptionalism,supra note 61, at 1498-99 (arguingdissemination of democracyhas become central to American foreignpolicy, including its role as justificationfor war); Paul R. Williams& FrancescaJannotti Pecci, Earned Sovereignty: Bridgingthe Gap BetweenSovereignty and Self-Determination,40 Stan. J. Int'lL. 347,369 (2004) ("The values shaping and inspiringthe contemporarycommitments of the internationalcommunity include ending ethnic violence, stopping human rights atrocities, promotingdemocracy, and encouragingthe rule of law."). 351. See, e.g.,Chesterman, supra note 200, at 949 (arguing,in regardsto Bosnia,that "flaweddemocracy may sometimes be worsethan no democracyat all"). See generally Zakaria,supra note 18, at 101-02, 105 (arguingthat democracy may actually entrench powerof illiberalstates).

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The election of Hamas to power in Palestine serves as one cautionary tale.352 Good Native governance challenges the assumption that democracy is required forgood governance. As Carole Goldberg asserts,"At the root of the argument that protectingindividual rightsin Indian countrypro- motes respect and growthfor tribesis a normativeclaim about the superi- orityof the Anglo-Americansystem of democratic majorityrule and individual rightsover tribalgoverning systems."353 In reality,there are tribes withfunctioning governments and stable economies thatdo not maintain democracies. Both anecdotal and empirical evidence suggeststhat good Native governance can and does exist in the absence of democracy. One recent study of Indian nations revealed that tribes' success depended much more on the qualityof the leadership than the typeof governmental systemthe tribe had in place.354 In other words, u[t]hose societies that govern well do better- economically, socially and politically- than those that don't."355 A number of tribes in the United States do not select their leaders through direct democracy, but neverthelessmaintain functioning,capable governments. In some cases, these tribes operate based on clan systems or employ complex (and sometimes secretive) methods for the selection of leaders that are rooted in hundreds of years of tribal culture and religion.356 The Sandia Pueblo, for example, has retained its traditional structurefor choosing its leaders.357 As a theocraticnation, religion is prominent in all facets of Pueblo life,with no separation between the private (religious) and public (secular) spheres.358 Both the proce- dure and substance of leadership selection is rooted in the tribe's tradition as a religious and patriarchalsociety. To date, religious leaders still sequester themselvesfrom the rest of the tribe and, through a period of

352. See Noah Feldman, Ballots and Bullets, N.Y. Times, July 30, 2006, § 6 (Magazine), at 9 (arguingUnited States'sIraq War and democracypromotion policy "encouragedelections in Lebanon and Palestine,opening the door to entitieslike Hezbollahand Hamas"). AsJed Rubenfeldargues in regardto democracypromotion in the Islamicworld, promoters of democracymust "be preparedto respectits outcomes," includingthe "rightof Islamicsocieties to divergefrom us on mattersof sex equality,the proper relationshipbetween church and state,and so on." Rubenfeld,Unilateralism, supra note 62, at 2016. Rubenfeldfurther notes, "There is such a thingas illiberal democracy."Id. Promotingdemocracy means it is possiblemore illiberal democracies will be created. 353. Goldberg,Revitalization, supra note 75, at 921-22. 354. See Cornell,Curtis & Jorgensen,supra note 82, at 6. 355. Id. ("To governwell is to increasethe society's chances of effectively meeting the needs of itspeople."). Of course,whether any particular country is evergoverning "well" can be debated,and thequality of governanceis moreappropriately viewed as situatedon a spectrum,rather than as an all or nothingproposition. 356. See, e.g.,Valencia-Weber, Racial Equality,supra note 128,at 368-69 (discussing exampleof Onondaga governancethrough clan system). 357. Riley,Abramoff, supra note 116. 358. Id.

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prayer,discussion, and debate,emerge with the names of the men who willlead the tribe.359Tribal members often decline to inquireinto the detailsof theprocess.360 Despite maintaining an extremelyprivate, traditional,and undemocraticgoverning structure, the Sandia Pueblo are cul- turallycohesive, well functioning,and economicallystable. They have managedto successfullyincorporate modern tools to effectuatetheir con- tinuedcultural survival.361 The variousnations of the Haudenosaunee,which is comprisedof the Six Nationsof the Iroquois Confederacy,similarly employ undemo- craticpractices.362 Eight clans span thesenations, and all are "organized culturally,socially and politically"by the matrilinealsystem.363 Under thissystem, children - regardlessof theirgender - become membersof theirmother's clan upon birth.364Thus, historically "the transmission of all titles,rights, and propertydescended through the femaleclan line to the exclusionof the male" under Iroquoislaw.365 All facetsof Iroquois life,including the selectionof leaders,are structuredaround the clan system.Pursuant to traditionaltribal law, each of theclans selects a Clan Motherwith authority to appointa male Chiefafter receiving input from the otherwomen in the clan.366The Clan Mothersare empoweredto directcertain actions of theChiefs, and ifthey determine that a Chiefhas failedto fulfillhis duties,they can removehim.367 Because the clan system is criticalto the appointmentof leaders,women wield great power withinthe community.368Adherence to the clan systemis strict:The leader of the Oneida Nation,for example, concedes thathis own children are not Oneida because theyhave Onondaga citizenshipvia their mother'sclan.369 The Onondaga,one of the Haudenosauneenations, provide a good example of how thismatrilineal clan systemshapes governance.Clan Mothersdecide whichmen will become Faith Keepers and governthe

359. Id. 360. Cf. id. (quoting formertribal governorwho, "'[o]ut of respect [for his] culture,'"did not inquireinto why religious leaders replaced him). 361. For example,the Sandia Pueblo have used theirsignificant gaming revenues to aid in the reclamationof theirtraditional lands and to advancetraditional culture. Id. 362. Originallythere were only fivenations in the Confederacy:the Onondaga, Oneida,Seneca, Cayuga, and Mohawks.Williams, supra note 179,at 1038. The Tuscarora joined in 1724, making it the sixth. Michael Cousins, AboriginalJustice: A HaudenosauneeApproach, injustice as Healing: IndigenousWays, supra note 302, at 141, 156 n.4. 363. Williams,supra note 179,at 1038-39. 364. Id. 365. Id. 366. Id. at 1040. 367. Id. 368. See id. ("The Iroquois constitutionalsystem of genderedchecks and balances soughtto insure,at least in theory,that women'svoices could alwaysbe heard and respectedon all issuesof tribalpolicy."). 369. Halbritter8c McSloy,supra note 285, at 554 n.79.

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nation via theirpositions on the council.370 The Clan Mothers also hold the power to remove the Faith Keepers if theydo not act for the benefit of the tribe.371Western-style democracy is not seen in the nation, because "[n]o one votes for the Clan Mothers nor for the Faith Keepers who serve on the governingcouncil that enacts the laws."372 Whether indigenous systemsof selecting leaders run afoul of good governance depends on the particular definition of democracy one adopts. Though democracy promotion has become a core function of the developed West's international policies, liberal theory has long ac- cepted limits on the people's power to directlyelect their leaders.373 Such limits still appear to fall within the realm of good governance.374 Thus, selection processes seen withinthe Haudenosaunee, for example, thatare based on consensus and require tribalparticipation and account- abilityon the part of those in power,375may still meet the standard. Be- cause the Clan Mothers are alwaysaccountable to their respectiveclans, even in picking the Chief, the people have a voice, if indirect, in the selection and removal of their leadership. Other tribes' processes- like those of the traditionalNew Mexico Pueblo, who vest the power to select leaders in only a small number of religious figures376- might be more problematic from an outsider's view of democratic governance. Never- theless, as scholars of tribal governance have pointed out, where these systemsare embedded in the political structureand culture of the tribe, the "authorityexercised under procedures and standards . . . are everybit as compelling and recognized by the people as the dominant society's pieces of paper on display at the National Archives."377 The forms of governmentdiscussed here work for these particular tribesbecause theyare both consistentwith foundational governingprin- ciples and are a cultural match. Even absent the elements demanded by - liberal democracy, these nations- and, undoubtedly,others like them are governing"well." That is, theyappear to be sufficiently"meeting the needs of [their] people," one of the aspects of good governance,378by combining tribal traditionsand the tools of modernityto facilitatetheir self-governanceand continued existence. But because they do not employ direct democratic methods identical to those promoted by the devel-

370. See Valencia-Weber,Racial Equality,supra note 128,at 368-70. 371. Id. 372. Id. 373. See Planner,supra note 349, at 172, 174. 374. See id. 375. Dependingon exactlyhow power is distributedwithin the clans in selectingthe Clan Mothers,it is not clearthat the traditional Haudenosaunee government falls short of the definitionof a "representativedemocracy." 376. See Kalt,Constitutional, supra note 88, at 195 (notingthat Pueblo government officialsare appointedby "senior theocrat"). 377. Id. at 188. 378. Cornell,Curtis & Jorgensen,supra note 82, at 6.

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oped West,such systemsof governancemay, indeed, fallshort of good governancestandards.

C. Banishment Giventhat this Article addresses banishment as an area wheretribal nationscould enhance good Nativegovernance,379 it may seem counter- intuitivethat I also includeit here as an exampleof how tribesare governingwell. But,if combined with the otherpreviously discussed requisite elements- namely,freedom of dissent,foundational principles, independentbodies for the resolutionof disputes,and culturalmatching- banishmentmay, in fact,exemplify good Nativegovernance. Banishmentwas traditionally imposed as a legitimateform of punish- mentin indigenouscommunities.380 As communalsocieties, tribes had to functiontogether to survive.Those who threatenedthe existenceof thegroup and refusedto livein harmonywith others could be exiled.381 In contrastto the U.S. system,for example, which authorizes the execu- tion of murderers,many tribal communities opted, instead,for banishmentas a punishmentfor taking another's life.382 Today, there has been a resurgencein banishmentas a wayof dealingwith wrongdoers in tribal communities.383In some cases,banishment is employedin itstraditional sense,as a meansof healingand conciliation;in others,it is a reactionto the modernrealities of tribaljurisdiction and reservationlife. In a handfulof recentcases, tribal communities have employedban- ishmentas it was traditionallyused - to servein the healingprocess and to assistin reconnectingthe perpetratorspiritually to the tribe.384In suchcases, banishment is usuallytemporary and designedto facilitatethe

379. See infraPart IV.B. 380. See Colin Miller,Banishment from Within and Without:Analyzing Indigenous SentencingUnder International Human Rights Standards, 80 N.D. L. Rev.253, 255 (2004) ("Banishmentperhaps is mostdeeply rooted in certaintribal cultures in the Americas, whichhave used thepunishment for centuries."). I wasreminded of thebanishment issue byJoseph H. Martin,a formerChief Judge of the SaginawChippewa Tribal Court,who contendsthat banishment was alwaysused amonghis people as a methodof dealingwith wrongdoersand those who refusedto live peacefullywith other members.Joseph H. Martin,Question & AnswerSession at the MichiganState Univ. Coll. of Law Conference: IndigenousJustice Systems (Mar. 17-18, 2006). 381. See Cousins,supra note 362, at 154 (notingthat, under the GreatLaw of Peace of the Haudenosaunee,banishment may be imposedon thosewho "engagein antisocial acts or hurtfulbehavior"). 382. See, e.g., K.N. Llewellyn& E. AdamsonHoebel, The CheyenneWay: Conflict and Case Law in PrimitiveJurisprudence 167 (1941) (discussingCheyenne Law of Killing, whichauthorized banishment as appropriatepunishment for murderers); Cousins, supra note 362, at 153 (notingthat, pursuant to GreatLaw of Peace, "executionis a defined sanctionwithin Haudenosaunee society" but "ithas seldombeen used"). 383. See, e.g., Sarah Kershaw8c Monica Davey,Plagued by Drugs,Tribes Revive AncientPenalty, N.Y. Times, Jan. 18, 2004, at 1; Renee Ruble,Banishment Laws Revived AmongIndians, Wash. Post, Ian. 25, 2004,at A9. 384. See Miller,supra note 380, at 255-61 (discussing"rehabilitative, restorative, and re-integrativegoals" of banishment).

This content downloaded from 128.97.244.188 on Wed, 11 Jun 2014 19:14:16 PM All use subject to JSTOR Terms and Conditions 1 104 COLUMBIA LAW REVIEW [Vol. 107:1049 perpetrator'sself-examination and eventual returnto the community.385 In a recent case, two Tlingit teenage boys were banished fromtheir tribal communityfor armed robbery and assault with a deadly weapon of a pizza deliveryman.386 They were sentenced to a period of exile on separate remote islands for one year,where theywere expected to surviveon theirown.387 A Tlingit elder stated that the banishmentwas designed to make the boys "ruminate on their crime, purifytheir spirits,and make restitutionto the victim."388Used in this manner, banishment is employed as a method of healing, where the tribal member can sit in isolation and contemplate the consequences of his crimes before returningto the tribal community.389As one author writes of banishment: "When people have to survivealone or are forced to live withother communities in shame, they can go through intense personal reflection that often leads to spiritualawakening."390 The resurgence of banishment in indigenous communitiesis also at- tributableto the practical limitationsthat tribesface in controlling(often drug-related)crime on isolated, sometimes poverty-strickenreservations. Federal laws and Supreme Court decisions greatlylimit tribes' abilityto police reservations,391and under ICRA tribes may only impose criminal punishmentson Indians of up to $5000 in finesand one year of imprisonment.392Although the federal governmenthas jurisdiction to trymajor crimes,such crimes regularlyescape the attentionof federal prosecutors, who are often located hundreds of miles away from the reservation.393 And tribeshave no criminal jurisdictionover the crimes of non-Indians,

385. See Cousins,supra note 362, at 154 (explainingthat banishment "rarely occurs forlife" and servesto facilitateoffender's "return to a spiritualstate where he or she can be sociallyinter-connected"). 386. Miller,supra note 380, at 257 & n.19. 387. Id. at 259. 388. Id. at 257 (internalbrackets omitted). 389. See, e.g., John Balzar, Two Alaska Indian Youths Banished to Islands for Robbery,L.A. Times,July 15, 1994,at A3 (discussingcase of twoTlingit boys who were banishedto remoteisland for crimeof assaultand robbery).See generallyRobert D. Cooter & WolfgangFikentscher, Indian CommonLaw: The Role of Customin Indian TribalCourts (Part II of II), 46 Am.J. Comp. L. 509, 554-55 (1998) (discussingvarious banishmentcases). 390. Cousins,supra note 362, at 154. 391. See AssimilativeCrimes Act, 18 U.S.C. § 13 (2000) (permittingfederal prosecutionof statelaw crimes);Indian Country Crimes Act, 18 U.S.C. § 1152 (extending federaljurisdiction to "Indiancountry"); Major CrimesAct, 18 U.S.C. § 1153 (mandating federaljurisdiction over enumeratedcrimes); Oliphant v. SuquamishIndian Tribe,435 U.S. 191,212 (1978) (rulingthat tribal courts do not have criminaljurisdiction over non- Indiansunless specifically authorized by Congress). 392. 25 U.S.C. § 1302(7) (2000). 393. See Washbura,American Indians, supra note 286, at 710-15,733 ("[T]he sheer distance between United States Attorney'sOffices and many of the federal Indian reservationsthey serve present tremendous obstacles Perhapsas a result,United States Attorneyshave been widelycriticized for decades forfailing to giveproper attention to Indian countrycases.").

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even when such crimes occur on the reservation.394So when federal prosecutorsfail to respond to repeated requests to remove a non-Indian drug dealer froma reservation,for example, some tribalcommunities use theirauthority to ban the drug dealer fromthe reservationfor a period of time.395 Many tribes have taken such actions, including the Turtle Mountain Band of Chippewa, which recently enacted an "Exclusion Code" for this purpose.396 Because tribeslack criminaljurisdiction over non-Indians, they are increasingly employing banishment to protect members from non-Indian criminals who hide out on Indian reservations, all too aware of the jurisdictional nuances that keep law enforcement officialsclambering. Due particularlyto the massive increase in drug-relatedcrimes on reservations,some tribes are using banishment to police the actions of members as well.397 Unlike non-Indians, Indians are processed through the tribe's criminaljustice systemprior to banishment. Sometimes such banishmentsare temporary,but tribeshave demonstrateda willingnessto permanentlyexile those who repeatedlyput the communityat riskby en- gaging in criminal drug-relatedactivity.398 When banishmentis properlyemployed in either of these categories of cases, it comports with the requirements of good Native governance. Applied contextuallyas a traditionalremedy for healing and restitution, banishmentis an effectiverestorative justice technique because it can po- tentiallyreturn harmony to Native communities. Where banishment is implemented as a pragmatictool to police reservations,it provides Indian tribeswith a mechanism to keep tribalmembers safe fromthe ills of criminal behavior that too often go unaddressed by the criminal justice system.

394. Oliphant,435 U.S. at 212. 395. See Ruble,supra note 383; cf.Kershaw & Davey,supra note 383. 396. Susanne Nadeau, Non-IndianOusted fromReservation, Grand ForksHerald (N.D.), May19, 2006,available at http://www.topix.net/content/kri/25950874911245776 98640681928150982520803(on filewith the ColumbiaLaw Review). 397. See, e.g.,The Problemof Methamphetamine in IndianCountry: Hearing Before theS. Comm.on IndianAffairs, 109th Cong. 20 (2006) (statementof Jefferson Keel, First Vice President,National Congress of AmericanIndians, and LieutenantGovernor of the ChickasawNation) (discussingefforts of Lummi to ban drugdealers, both Indian and non- Indian, from reservation).This approach is controversial,however, as some tribal membersargue thatthe banishmentprocess is too easilysubverted by corruptofficials. See, e.g., CheleyHokanson-Gonzales, Letter to the Editor,Tribal BanishmentProposal CreatesPossibility of Corruption,Lahontan Valley News & Fallon Eagle Standard(Nev.), Dec. 15, 2006, available at http://www.lahontanvalleynews.com/article/20061215/ opinion/11 21 50033/0/archives (on filewith the ColumbiaLaw Review)(contending that "abuse of thiskind of ultimatepower is verydangerous" and arguingthat tribes should insteadexpand drugtreatment programs). 398. See Nadeau, supranote 396.

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Although banishment is still used in some circumstanceswithin the United States,399it is widelyconsidered to fall outside the parameters of good governance. From a U.S. perspective,banishment - particularlyof the type sufferedby the Tlingit boys400- is likely to run afoul of the Eighth Amendment's ban on cruel and unusual punishment.401When the Supreme Court considered the question of whether a militaryde- sertercould sufferloss of citizenshipfor his crime, the Court argued that banishmentis "a fate universallydecried by civilized people," while maintaining that the punishment of death is "widelyaccepted" and does not "violate the constitutionalconcept of cruelty."402 This does not mean thatbanishment would necessarilyviolate global good governance standards or that such a violation would necessarily mean a failure of Native governance. Afterall, the United States uses its own- at timesdraconian - policies of immigration,deportation, and nat- uralization to determine its membership.403Such practices certainlypar- allel banishment: They can be temporaryat times, but may also be ac-

399. Banishmentis stillused as a formof punishmentwithin the United States. Doron Teichmann,The Marketfor CriminalJustice: Federalism, Crime Control,and JurisdictionCompetition, 103 Mich. L. Rev. 1831, 1851 (2005) (discussing"158-county banishment"rule in 159-countyGeorgia, whereby certain criminals are givenoption of beingbanished to remotecounty or leavingstate altogether, and recentlyenacted Cicero, Illinoisordinance allowing for banishment of gang membersfrom city). 400. See supra textaccompanying notes 386-389. 401. See Clare E. Lyon,Alternative Methods for SentencingYouthful Offenders: UsingTraditional Tribal Methods as a Model,4 AveMaria L. Rev.211, 232 (2006) (noting thatalthough Eighth Amendment might prohibit banishment generally, tribal sovereignty makesamendment less relevantto tribalpractices). 402. Trop v. Dulles,356 U.S. 86, 99, 102 (1958). The Courtnoted thatexile of the soldier in this case would essentiallymake him "stateless."Id. at 102. This situation contrastswith exile or disenrollmentof an Indian withinthe United Stateswho would presumablymaintain his or herAmerican citizenship despite the loss of tribalenrollment. 403. Accordingto KevinR. Johnson,"U.S. immigrationlaws . . . have barredracial minorities,political dissidents, the poor, actual and alleged criminals,and homosexuals fromour shoresand - oftenpursuant to proceduresthat are difficult... to squarewith the notionof due processof law- havecaused themto be deportedfrom the country." Kevin R. Johnson,The "Huddled Masses"Myth: Immigration and CivilRights 2 (2004). For examplesof such conduct,see, e.g., Nina Bernstein,Immigrants Go fromFarms to Jails, and a Climateof Fear Settlesin, N.Y. Times,Dec. 24, 2006, at A21 ("Some longtime [farmworkers]with American children were deported too quicklyfor goodbyes, or remain out of reachin thefederal detention center in Batavia,N.Y., where immigrants are tracked byalien registrationnumber, not by name."); Julia Preston, Immigrants' Families Figuring Out Whatto Do AfterFederal Raids, N.Y. Times, Dec. 16,2006, at A13 (describingraids by Immigrationand Customs Enforcementagents of meat-packingplants, resultingin detentionof both illegal immigrantsand residentsnot carryingpapers with them, and toughdecisions they faced as to whetherto leave citizenfamily members in UnitedStates alone or bringthem back to home country);see also Daniel Kanstroom,Deportation, Social Control,and Punishment:Some ThoughtsAbout Why Hard LawsMake Bad Cases, 113 Harv.L. Rev.1890, 1890-91 (2000) ("Welive in a timeof unusual vigor, efficiency, and strictnessin the deportationof long-termpermanent resident aliens convictedof crimes.. . . Deportationis now oftena virtuallyautomatic consequence of criminal conviction.").

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companiedby permanent disenrollment and exile.404Despite the use of banishment-stylepractices by the dominantsociety, though, banishment maymake tribesvulnerable to encroachment.The factremains that in- ferencesin both law and culturepersist about the typesof governments that apply the penaltyof banishment,which mirrormany outsiders' deeplyembedded beliefs about Indians- thatthey are primitive,uncivi- lized,and intolerable. I contend,nevertheless, that banishment satisfies good Nativegov- ernancestandards so long as it is employedin the presenceof the other requisitefactors. But, as arguedmore fully below, there have been legiti- mateconcerns raised with regard to banishmentthat go to itsimplemen- tationand application. If banishmentis not applied fairlyand in a nonpoliticalway, forbidden by or inconsistentwith the foundational gov- erningprinciples of the tribe,or implementedabsent a culturalmatch, it lackslegitimacy. Perhaps most importantly, banishment cannot be used in responseto theexercise of voice. Ifbanishment is imposedcontrary to theseprinciples, it mayrun afoulof good Nativegovernance and be un- derminedas a legitimateform of punishment. Havingfocused in PartIII on Nativegovernmental institutions and practicesthat likely fail under a global good governancestandard, but nonethelesscomport with good Nativegovernance, I willnow examine tribalgovernance practices that both deviate from the globalstandard of good governanceand possiblyrun afoul of good Nativegovernance as well.

IV. EnhancingGood Native Governance Manyperceived shortcomings of tribalgovernments can be directly tracedto a failureof the federalgovernment to liveup to itsobligations to Indiannations. There is a vastbody of literaturedetailing this volatile relationship,including genocide throughstarvation, disease, and mas- sacres; treatyabrogation; mismanagementof Indian monies; and breachesof thetrust responsibility.405 Though many Americans conceive of theseas historicalwrongs - and some are- the U.S. governmentcon- tinues,in a varietyof ways,to undermineor altogethersabotage the survivalof indigenousnations in America.406 While I fullyacknowledge this reality and understandthe climate withinwhich many tribal nations emerged from the colonial period,I neverthelessposit thatIndian tribesin a contemporaryworld are in a positionto more fullyconsider their obligations to theircitizens. With

404. See, e.g., Fong Haw Tan v. Phelan,333 U.S. 6, 10 (1948) ("[Deportation is a drasticmeasure and at timesthe equivalentof banishmentor exile."). 405. Much of thishistory is recountedin MatthewL.M. Fletcher,Sawnawgezewog: "The Indian Problem"and the Lost Artof Survival,28 Am. Indian L. Rev.35 (2003). 406. SupremeCourt jurisprudence of the last twodecades, forexample, has been extremelydetrimental to tribalsovereignty. See Frickey,Exceptionalism, supra note 77, at 452-61.

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this in mind, this section focuses on two specific areas where Native governance could be enhanced withintribal communities. First,where they are absent, tribesshould provide meaningfulforums for the adjudication of civil rightsclaims by both members and nonmembers,which includes at least partial waivers of sovereign immunityfor the purpose of such claims. Second, tribesshould ensure thatbanishment or disenrollmentis carried out only when accompanied by the other requisite good Native governance factors.

A. Waiversof Sovereign Immunity in Tribal Courtsfor ICRA Claims

In the United States, the federal, state, and tribal governmentsall enjoy sovereignimmunity - the rightto be free fromlawsuits for damages filed against it withoutits consent.407 The primarypurpose of the doctrine is to ensure that the sovereign is not subjected to lawsuitsfor its actions unless it waives its immunity.408Various rationales have been of- fered to explain the sovereign immunitydoctrine, including the related theories that the "King can do no wrong"409and that the sovereign cannot be subject to the rightsit has established.410A robustvision of sovereign immunityis also thought to address separation of powers concerns,411in that it assistsin "maintain[ing] a proper balance among the branches of the federal government."412Finally, it has also been noted that the doctrine is useful to limit costly lawsuits that "would interfere with the government'sability to carryout its officialduties and enforce-

407. Sovereignimmunity is an Englishcommon law doctrinethat dates back to the thirteenthcentury, and is the foundationof the idea thatthe King could not be sued withouthis consent.Clyde E. Jacobs,The EleventhAmendment and SovereignImmunity 5, 7 (1972). State sovereignimmunity is rooted in the EleventhAmendment: "The Judicialpower of the UnitedStates shall not be construedto extendto anysuit in law or equity,commenced or prosecutedagainst one of the UnitedStates by Citizens of another State,or by Citizensor Subjectsof any ForeignState." U.S. Const,amend. XL Tribal sovereignimmunity is rootedin federalcommon law. See SantaClara Pueblov. Martinez, 436 U.S. 49, 58 (1978) ("Indian tribeshave long been recognizedas possessingthe common-lawimmunity from suit traditionallyenjoyed by sovereignpowers." (citations omitted)). Suits by state governmentsand privateactors are prohibitedabsent tribal waiveror congressionalconsent. See, e.g., KiowaTribe of Okla. v. Mfg.Techs., Inc., 523 U.S. 751, 754 (1998) ("As a matterof federallaw, an Indian tribeis subjectto suitonly whereCongress has authorizedthe suitor the tribehas waivedits immunity."(citations omitted)) . 408. In the case of Indian tribes,however, Congress has the authorityvia itsplenary powerto waivethe sovereignimmunity of Indian tribeswithout their consent. See Santa ClaraPueblo, 436 U.S. at 58 (notingthat sovereign immunity, "like all other[ ] [aspectsof tribalsovereignty], is subject to the superiorand plenarycontrol of Congress"). 409. HaroldJ. Krent,Reconceptualizing Sovereign Immunity, 45 Vand. L. Rev. 1529, 1530 (1992). 410. VickiJ. Limas,Employment Suits Against Indian Tribes: BalancingSovereign Rightsand CivilRights, 70 Denv. U. L. Rev. 359, 371 (1993). 411. Id. 412. Krent,supra note 409, at 1530.

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ment ofjudgments thatwould cause economic losses thatcould impair or destroygovernment functions."413 Sovereign immunityis widelyemployed by all sovereignswithin the United States,but it has particularimport for tribalgovernments. Histor- ically,tribes have struggledwith financial solvencyand have long existed on tiny budgets, operating on poverty-strickenreservations. As such, Indian nations have relied heavilyon the sovereign immunitydefense to protecttribal communities.414 Despite the impressionthat tribesare now wealthy, the reality is that the vast majority of tribes are struggling. American Indians are still among the poorest people in the country.415 Thus, tribal governmentsmust alwaysbe mindfulof the need to govern so as to keep tribesintact. From the tribe's perspective,this may require the assertion of sovereign immunityto foreclose the funneling of resources out of tribal coffers,and instead direct scarce resources to areas where theymay best serve the needs of the tribalcommunity. For example, an Indian tribe that takes the economic viabilityof the government into account when determiningthe balance between an individual's civil rightsclaim and the tribe's liabilitymay decide that the cost to tribalgov- ernmentwould be devastatingif it paid out to individual tribalmembers the amount of money sought, even ifwarranted. This view is reflectedin one tribaljudge's view of the defense: [C]riticallyimportant community interests are being protected by thisimmunity: Suits against the tribeseeking damages attack the communitytreasury. This money belongs to all the people of the Sauk-Suiattlenation. It must be guarded against the at- tacks of individuals so that it can be used for the good of all in the tribalcommunity. Secondly, any suit against the tribeforces the tribe to expend communitymonies in legal fees. The possible amounts that can be expended on thiseffort would be great if suits of thisnature are not limited. Finally,the entire commu- nitystands to sufferirreparable harm if theirleaders, foreseeing possible liabilities at every action, are unable to fulfillthe re- sponsibilityof their offices.416 However, given that tribal forums are the sole locus in which non- habeas ICRA claims may be brought, many tribes have nonetheless

413. Limas,supra note 410, at 371. 414. See CatherineT. Struve,Tribal Immunity and TribalCourts, 36 Ariz.St. LJ. 137, 168 & n.179 (2004) (citingAmelia A. Fogelman,Note, SovereignImmunity of Indian Tribes: A Proposalfor Statutory Waiver for Tribal Businesses, 79 Va. L. Rev. 1345, 1349 (1993) ("Courts and commentatorshave justifiedthe continued existenceof tribal sovereignimmunity primarily as a meansto protectscarce tribal resources.")). 415. See Hope M. Babcock,Reserved Indian Water Rights in RiparianJurisdictions: Water,Water Everywhere, Perhaps Some Drops for Us, 91 Cornell L. Rev. 1203, 1243 (2006) ("Indians are today among the poorest people in the United States,with reservationsthat 'continue to rankamong the most economically depressed sectors of the nation.'" (citationomitted)). 416. Limas,supra note 410, at 371 (quotingMoses v. Joseph, 2 TribalCt. Rep. A-51,A- 54 (Sauk-SuiattleTribal Ct. 1980)).

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elected to waive theirsovereign immunity for purposesof civil rights claims.417Some waiversare effectuatedthrough tribal law, in theform of constitutionalprovisions,418 legislative acts,419 or byvirtue of thedevelop- ment of a tribalcommon law.420Tribal courtssometimes waive tribal sovereignimmunity on thegrounds that such waivers are consistentwith, or even mandatedby, ICRA or Santa ClaraPueblo.421

417. Manytribal courts have interpretedICRA - per Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)- as creatingan impliedwaiver of tribalsovereign immunity in tribal courtsfor purposesof ICRA claims. See, e.g., AlexanderTallchief Skibine, Brief for Respondents,Martinez v. Santa Clara Pueblo,14 Kan. J.L. & Pub. Pol'y 79, 86 (2004) ("[M]ost tribalcourts interpretICRA as an implied waiverof the tribes' sovereign immunityin theirown tribalcourts and have takenseriously their role in implementing theAct's protections." (citations omitted)). Othersexpressly waive their immunity for civil rightssuits in tribalcourts through their tribal constitutions. See, e.g.,Menominee Indian Tribeof Wis.Const, art. XVIII, §§ 1-2 (waivingtribal immunity in tribalcourt for Indian CivilRights Act cases); see also Goldberg,Revitalization, supra note 75, at 900 ("Mosttribal courtsor councilswaive sovereign immunity so as to enablelitigants to challengeactions of tribalofficers for violating the Act."); RobertJ. McCarthy,Civil Rights in Tribal Courts: The IndianBill of Rightsat ThirtyYears, 34 Idaho L. Rev.465, 480-83 (1998) (discussing tribalcourts that have found tribalsovereign immunity waived for purposesof ICRA claims). Otherscholars have claimed, however, that sovereign immunity is preventingcivil rightsclaims against tribal governments. See, e.g.,Peter Nicolas, American-Style Justice in No Man's Land, 36 Ga. L. Rev.895, 959 (2002) ("[Many]tribal courts have held thatICRA does not abrogatea tribe'ssovereign immunity in tribalcourt and have declined to entertainsuits brought against tribes under ICRA. . . . [E]ven forviolations of ICRA, injuredparties find themselves without a forumin whichto adjudicatetheir claims against thesetribes." (footnote omitted)); Rosen, Multiple Authoritative Interpreters, supra note 102,at 509 ("The doctrineof tribalsovereign immunity, however, is a potentialdoctrinal obstacleto the tribalcourts' functioning as forato vindicateICRA rights."). 418. See, e.g., MenomineeIndian Tribe of Wis.Const, art. XVIII, § 2. 419. See, e.g., ColvilleTribe Law 8c Order Code § 1-5-5(2005) (waivingColville Tribes'sovereign immunity in tribalcourts for suits brought under ColvilleTribes' Civil RightsAct); FortMcDermitt Paiute-Shoshone Tribe of Or. & Nev.Law & OrderCode, ch. 1, §§1, 3 (2003) (stipulatingthat Tribal Council maywaive immunity to enforceequal protectionand proceduraldue processrights). 420. See, e.g., Murphyv. StandingRock Sioux ElectionComm'n, 17 Indian L. Rep. 6069, 6070 (StandingRock Sioux Tribal Ct. 1990) (rejectingElection Commission's argumentthat they enjoyed sovereign immunity via theirstatus as instrumentalityof tribe); O'Brienv. FortMojave Tribal Court, 11 IndianL. Rep. 6001,6002 (FortMojave Tribal Ct. 1983) (rejectingdefense of sovereignimmunity as "a dinosaurof injustice");Limas, supra note 410, at 379-80 (notingthat "a tribalcourt may look to its tribe'scommon law to determinethe existence or extentof immunity,"and discussingO'Brien as exampleof case waivingimmunity under tribalcommon law). 421. See Limas,supra note 410, at 380-81 (notingthat Cheyenne River Sioux Tribal Courtof Appeals rejected tribe's defense of sovereignimmunity, finding that under Santa ClaraPueblo, "'tribal courts must entertain causes of action based on ICRA'" (quoting DuPree v. CheyenneRiver Hous. Auth.,1 Indian L. Rep. 6106, 6108 (CheyenneRiver Sioux TribalCt. App. 1988))). Limasadditionally notes that the TurtleMountain Tribal Court relied on Santa Clara Puebloto find that ICRA amounted to an "'express, of intentto to the tribalcourt unequivocalexpression congressional providejurisdiction " based upon allegedviolations of an individual'scivil rights protected by ICRA.' Id. at 380 (quotingDavis v. Keplin,18 IndianL. Rep. 6148,6149 (TurtleMountain Tribal Ct. 1991)). I do not mean to suggestthat tribal courts should find a waiverof immunitywithin ICRA

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Despite the large number of tribesthat do waive the defense of sovereign immunityfor the purpose of ICRA claims, there remain a sizeable number of tribes that do not.422 This means that the assertion of the sovereign immunitydefense keeps many ICRA suits from ever being liti- gated in tribal court.423 Thus, despite all the good reasons for assertion of the defense, principlesof good Native governance stronglysuggest that tribesought to take it upon themselvesto waive their immunityvia their own constitutions,statutes, or common law, in order to address the civil rightsclaims being raised by tribal members and non-Indian claimants. And even while acknowledging the persuasive, pragmatic reasons for waivingthe defense,424it is not upon this rationale that I make myclaim. Good Native governance requires the waiver of the defense so that ICRA claims may be heard in a tribal forum.425As Marshall stated in Santa Clara Pueblo,"Tribal forumsare available to vindicate rightscreated by ICRA."426 He emphasized: "Tribal courts have repeatedlybeen recognized as appropriate forums for the exclusive adjudication of disputes affectingimportant personal and propertyinterests of both Indians and non-Indians."427The Court made no exception for tribesin whichjudi- cial authorityis vested in a nonjudicial entity,such as (in the case of the Santa Clara Pueblo) a tribal council, calling such fora "competent law- applying bodies."428 As Marshall's opinion emphasizes, civil rightsviola- tions will only be addressed if the tribal forums- uniquely qualified to hear these matters- are available. And such forumsare criticalfor good whereone has not been expresslystated. In fact,federal Indian law supportsthe theory that- absent an expresswaiver of immunityby Congress- such limitationson tribal sovereigntywill not be inferred. 422. See, e.g.,Fletcher, Tribal Employment Separation, supra note 185,at 322 ("Most TribalCourts do not findthat ICRA waivesa Tribe'simmunity."). 423. See Limas,supra note 410, at 360 ("Withthe exception of habeascorpus actions, whichcan be heardin federalcourts, tribal courts are generallythe onlyforums available forICRA claims. In responseto ICRAsuits against them in tribalcourts, some tribesassert the defenseof sovereignimmunity."); Rosen, MultipleAuthoritative Interpreters, supra note 102,at 509 ("Manytribal courts have held thatICRA does notwaive tribal sovereign immunity,but haveallowed prospective injunctive relief or damageswhere tribal officials act beyondthe scope of theirduty."). 424. The factthat tribal governments are protectedfrom suit by sovereign immunity has caused Congressto attemptto pass legislationabrogating that immunity for ICRA claims. Limas, supra note 410, at 361; see also John W. Borchert,Comment, Tribal ImmunityThrough the Lens of the ForeignSovereign Immunities Act: A Warrantfor Codification?,13 EmoryInt'l L. Rev.247, 250-51 (1999) (notingthat defense of sovereign immunityfeeds political backlash against tribes, leading Congress to tryto pass lawsthat wouldcondition tribal funding on waiversof immunity). 425. Thoughthere may be compellingreasons why tribes ought to waive immunity for a varietyof disputesother than civil rights claims - such as contractdisputes, commercial disputes,etc. - I do not addressthose here. 426. Santa Clara Pueblo v. Martinez,436 U.S. 49, 65 (1978). 427. Id. (citingFisher v. Dist. Court,424 U.S. 382 (1976); Williamsv. Lee, 358 U.S. 217 (1959); Ex parteCrow Dog, 109 U.S. 556 (1883)). 428. Id. at 66 (citingUnited States v. Mazurie,419 U.S. 544 (1975)).

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Native governance. When tribal members seek redress for wrongs that theyfeel have been perpetrated against them, theywill lose faithin the legitimacyof the government if they are given no opportunityto be heard. In order for tribal members to have faithin the tribe and to be incentivizedto continue to investin the community,they must have access to a nonpolitical forum for resolution of their disputes. Waiver of the defense of sovereign immunityis part of this calculus. Even where a tribalforum is available, if the tribeis shielded by the sovereignimmunity defense, the litigantmay, nevertheless,be whollyprecluded from pursuing his or her claim. And as other scholars have noted, even "marginal" or "aspiring state[s]" "ought not to be able to be fullyexcused fromany and all formsof accountability."429 I do not mean to suggest that tribesshould grant wholesale waivers of immunity.In fact,not onlywould I argue against waiversfor unlimited monetary damages in most cases, for example, I think it prudent that some tribespreclude monetaryrelief altogether. But it is up to each tribe to weigh for itselfthe parameters of its immunityand the scope of the claims it will allow withinthe tribal forum. Wealthier tribesmay, for example, conclude that monetaryjudgments are appropriate, while tribes withfar fewerresources may offerinjunctive or declaratoryrelief only.430 Some tribes have enacted limited waivers, allowing suits for monetary damages to the extent the losses will be covered by insurance.431 This is not to say that litigantswill always be satisfiedby the limitsimposed by tribal governments. In many cases, they most certainlywill not.432 But there is a catharsisfor those who feel theyhave been wronged in having their claims heard. Providinga venue for individuals to tell their stories will be good for the tribalcommunity in several respects. Adequate tribal fora and limited waiversof immunitywill inspire the confidence and loyalty of citizens who feel they have been harmed by tribal governments. And outsiders,too, many of whom now workfor Indian nations, ought to

429. JudithResnik & JulieChi-hye Suk, Adding Insult to Injury:Questioning the Role of Dignityin Conceptionsof Sovereignty,55 Stan. L. Rev. 1921, 1955 (2003) (identifying Santa Clara Pueblo as exampleof sovereignin need of accountability). 430. A studyof tribal courts revealed that this tact has, indeed, already been undertakenby some tribalcourts. See Newton,supra note 75, at 339 ("Some tribes. . . specificallywaive sovereign immunity for Indian Civil Rights Act cases, but limit that waiver to injunctiveor declaratoryrelief."). 431. See, e.g.,Johnson ex rel. Gould v. Navajo Nation,5 Navajo Rptr.192, 200 n.4 (1987) (discussingNavajo Nation SovereignImmunity Act, Navajo Nation Code tit. 1, §§ 551-555 (1995), whichincludes provision permitting lawsuits against tribe for money damagesthat are coveredby insurance). 432. Forexample, former non-Indian female employees of the Thunder Valley Casino have sued forsexual harassment.They are attemptingto taketheir claims to statecourt, despitethe offer by the tribe to send theclaims to an independentarbitrator. The women refusedto use the tribe'sresolution alternative because theywould not be allowed to recover punitiveor exemplarydamages. See DorothyKorber, Ex-Casino Workers' HarassmentCase Faces KeyHearing: Judge to Rule on TribalSovereignty Issue in Seven Women'sLawsuit Against Thunder Valley, Sacramento Bee, June 4, 2006, at Bl.

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be afforded a fair opportunityto bring their claims. For all those- In- dian and non-Indian- who enter the tribe's domain and jurisdiction, the resolution of veryimportant civil rightsclaims is an integral component of good Native governance.

B. Banishment

Banishment has received a great deal of attentionin recent years.433 Though I have discussed it previouslyin the context of good Native governance,434it must also be addressed as a source of serious contention withintribes. As I have argued, banishment can serve a legitimatefunc- tion as a bona fide punishmentwithin Native communitiesas long as it is implemented in conjunction with other aspects of good Native governance - voice, the presence of a fairand nonpolitical forumfor the resolution of disputes, and cultural matching,in particular. But recent storiesof banishmentin the news raise the inferencethat, at least in some instances, tribal members are being permanentlyexiled from their tribal communities in the absence of the other requisite governance factors. Allegations that tribalmembers have been banished for voicing dissent against triballeadership are particularlytroubling. In the case of one California rancheria, for example, the Los AngelesTimes re- ported that 174 members- fifteenpercent of the tribe's total enroll- - ment were banished because their common relativevocally opposed a proposed casino development deal.435 Another California tribe purport- edly disenrolled seventytribal members, including the vice chair of the tribal council, for signing a petition to recall other elected officials.436 Subsequently,two tribalmembers who expressed vocal opposition to the previous banishmentswere also disenrolled.437 In that instance, the tribal chairwoman,Glenda Nelson, reportedlysaid that the tribalmembers were disenrolled for the sake of tribal unity,because the dissidents' actions were destroyingthe tribe.438Just recently, five tribal members were

433. See, e.g.,Poodry v. TonawandaBand ofSeneca Indians,85 F.3d 874,879 (2d Cir. 1996) (holdingthat Native Americans banished from tribe can challengelegality of their "conviction"under ICRA habeas provision);Quair v. Sisco,359 F. Supp. 2d 948, 971 (E.D. Cal. 2004) (relyingon Poodry,85 F.3d at 895-98, in holdingthat "banishment from the reservationconstitutes detention in thesense of a severerestriction on petitioners'liberty not shared by othermembers of the Tribe"); Michael Hiltzik,Fairness Is the Loser in TribalIdentity Crisis, L.A. Times,Apr. 5, 2004, at Cl (discussingunfairness and limited judicial reviewof tribal"disenrollment" disputes); Calif. Tribe Threatensto Disenroll Dissidents,Indianz.com, Sept. 29, 2003, at http://www.indianz.com/news/archives/001 695.asp (on filewith the ColumbiaLaw Review)(discussing attempted disenrollment of tribalmembers who signedvoting recall petition). 434. See supraPart III.C. 435. Hiltzik,supra note 433. 436. MaryWeston, Appellants Disenrolled for Speaking Out, OrovilleMercury Reg. (Cal.), Dec. 12, 2006, availableat http://www.rlnn.com/ArtDec06/AppellantsDisenrolled ForSpeakingOuthtml(on filewith the ColumbiaLaw Review). 437. Id. 438. Id.

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allegedly "shunned" by their tribe for several years for filinga lawsuitto demand review of tribal finances.439 They were not informed of their banishment- which will preclude them fromaccessing their tribalmembership benefits for seven years- until almost a month after the tribal council's decision.440 And there are other cases that raise questions about the rightsof minorityfactions who claim theyare being punished for speaking out against powerful elites.441 Such stories are troubling froman indigenous perspective,not only because injustice may be perpe- tratedon individual Indians, but because such storiesraise the ire of the non-Indian communityand furtherinstigate misconceptions and animos- itytoward tribes,even when such incidences are extremelyisolated. As set forthabove, good Native governance requires that members have the freedom of voice or dissent. But even in tribes that hold elections or protectvoice throughfreedom of speech, such rightsare illusory if the exercise of voice resultsin one's exile from the community. After all, "the fairnessand decency of any state should be assessed not alone througha studyof whetherits majoritiesexamine it and find it good, but througha studyof whetherits minoritiesfind it good."442 That is, how a communitytreats acts of dissidents is part of how group identityis defined.443When dissentersare permanentlyexiled from a tribal commu- nity444for speaking out against governingelites - particularlywhen such ejections occur in the absence of a nonpolitical dispute resolution process- we must look criticallyat the governmentsallowing or facilitating these results. I do not mean to suggest there are no cases in which even permanent banishment might be justified. In fact,I have already detailed two broad categories of cases where I contend banishment falls within the parameters of good Native governance, and there are most certainly others.445But tribalbanishment is an extremelyharsh penalty. Though it does not invoke the Supreme Court's concerns that exile necessarily creates "statelessness,"446it does raise serious questions. Afterall, tribal members who are exiled fromtheir tribewill still have American citizenship, but unless theycan satisfyeligibility for enrollmentin another tribe

439. Sean Gonsalves,State 'Reviews' Complaints of Tribe Dissidents, Cape Cod Times, Feb. 8, 2007, availableat http://www.rlnn.com/ArtFeb07/StateReviewsComplaintsTribe Dissidents.html(on filewith the ColumbiaLaw Review). 440. Id. 441. See, e.g.,Shenandoah v. Halbritter,366 F.3d 89, 92 (2d Cir.2004) (allegingthat "officialrepresentative" of Oneida Indian Nation used power"to suppress,harass, and intimidate. . . dissidents"by "enact[ing]an illegal housingordinance permitting the seizureand destructionof [dissidents']homes without providing just compensation"). 442. StephenL. Carter,The Dissentof the Governed97 (1998). 443. See id. 444. Evidence suggeststhat, under traditionalIroquois law, banishmentis rarely permanentand sparinglyused. Cousins,supra note 362, at 154-55. 445. See supraPart III.C. 446. Trop v. Dulles, 356 U.S. 86, 99, 102 (1958); see also supra note 402 and accompanyingtext.

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or are adoptedby another Indian nation, they will be permanentlydevoid of tribalcitizenship. This maynot onlydeprive them of valuablegoods and services,but can also leave themwithout any avenue in whichto ac- cessand practicetheir tribal culture, causing a devastatingloss of cultural identity. The gravityof banishmenthas not been lost on the courts,which have foundways to manipulatewell-settled law to reviewinternal tribal membership decisions.447 In Poodryv. Tonawanda Band ofSeneca Indians, forexample, the Second Circuitemployed wildly circuitous reasoning to find groundsupon which to hear the plaintiffs'case.448 There, the Senecas claimed that the actions of the dissidents- in theirefforts to forma competinggovernment within the tribe to combatalleged corruption and mismanagementby tribalgovernment - had committedtrea- son.449The individualmembers were told of theirbanishment and dis- enrollmentvia a notice that read, in part: "It is witha great deal of sorrowthat we informyou thatyou are nowbanished from the territories of theTonawanda Band of the Seneca nation. You are to leave now and neverreturn."450 In itsopinion, the court noted that "detention" for purposes of ICRA could be metonly by either physical imprisonment or "sever[e]. . . actual or potentialrestraints] on liberty,"and then characterizedplaintiffs' banishmentas fallingwithin this definition so as tojustify federal court reviewof theirclaim.451 The court'sreaction to the factsof Poodrymay indicatethat they were as troubledby the perceived absence of theother good Nativegovernance factors as theywere by the banishment itself. In fact,the court focused on variouselements of thecase thatwere not critical to its findingthat plaintiffs had been "detained"by the tribe. For example,the opinion reflects the court's acknowledgment that, if it could not reviewthe case, the plaintiffshad no otheravenue of reviewwithin thetribe.452 The courtalso highlightedthe cursory manner in whichthe plaintiffswere simultaneouslyinformed of their crime and their punishment.453 Of course,treason is a seriousoffense, and a sovereigngovernment has an obligationto protectitself against individuals advocating its de- mise.454In fact,the United States recently caused a mediafrenzy when it

447. See Riley,Illiberalism, supra note 1 (manuscriptat 26-30) (discussingrecent encroachmentsby federal judiciary into tribalmembership disputes). 448. 85 F.3d 874, 893-95 (2d Cir. 1996). 449. Id. at 878. 450. Id. 451. Id. at 893-95. 452. The courtstated that "[i]f the reasoningof SantaClara Pueblo forecloses federal habeasjurisdiction, the petitionershave no remedywhatsoever.** Id. at 885. 453. See id. at 877-78. 454. See Dennis v. United States, 341 U.S. 494, 519 (1951) (Frankfurter,J., concurring)("The rightof a governmentto maintainits existence - self-preservation- is the mostpervasive aspect of sovereignty.").

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brought the firsttreason charge in fiftyyears against U.S. citizen Adam Gadahn for promoting the agenda of the terroristorganization Al Qaeda.455 Thus, tribalnations are obviouslynot alone in seeking to protect themselves against overthrowor mutiny.However, when applying such a harsh penalty to tribalmembers, the Senecas may have been able to avoid federal interferencehad they more clearly demonstrated- for the good of their individual members and their Nation as a whole- that the plaintiffs'punishment was imposed in conjunction with the other good Native governance factors. Historyand contemporarycircumstances tell us that that,unless limited, powerfulelites may misuse theirauthority.456 This is not to say that tribes should avoid employing banishment as a punishment altogether. But because banishment has the potential for such grave abuse - to si- lence dissenting voices or to increase remaining members' shares of goods and services- it is criticalthat it is used in conjunction with other importantprotections. The absence of any of the requisite factorsmay raise concerns about the legitimacyof banishment and, correspondingly, Native governance.

V. Why Tribes Should Strive for Good Native Governance

Even though ICRA extended certain civil rightsprovisions to tribal governments,the factremains that,in manyrespects, tribes are free to act illiberally.457In my work, I have argued for maintenance of the status quo: That is, that self-determinationrequires that each individual tribe be afforded the freedom to self-govern,and that there ought not to be greater federal (or international) encroachment on the internal governance of tribal nations.458 Given this position, it is perhaps unwise for an outsider459to even attempt to map out the parameters of good Native governance. At the same time, there are real concerns about Native governance, arisingfrom both withinand withouttribal communities.460 As tribalna-

455. Eugene Volokh,The Case forTreason, L.A. Times,Oct. 14, 2006,at B17. 456. See Cornell,Curtis & Jorgensen,supra note 82, at 10 (explainingthat abuse of power is seen in governmentsaround world, and thus, central challenge of self- governmentis findingeffective leadership that "gets things done" whileprotecting citizens fromabuses of power). 457. Or at least, theyare free to engage in governancethat deviatesfrom that requiredof the stateand federalgovernments pursuant to the Bill of Rights.See Riley, Illiberalism,supra note 1 (manuscriptat 17-18). 458. Id. (manuscriptat 81-83). 459. Though I am a tribalmember and a Justiceon myNation's Supreme Court, I believethat each individualtribal government is a separate,independent sovereign. Thus, to the extentI am advocatingfor a standardto governall tribes,I am, in some sense,a quasi-outsider. 460. See Champagne,supra note 92, at 11 ("Formany [tribal] communities, there is a growingsense of crisis and a movementto remake tribal constitutions.");Kalt, Constitutional,supra note 88, at 184 ("Indian nationsare sittingducks for those who

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tionscontinue to assertsovereignty - attempting in some cases to recap- turethe fleeting attributes of externalsovereignty461 - global governance standardsfor all sovereignsare being shaped. Indian nationsare faced withthe unique opportunityto enterthis dialogue by supplying evidence thatNative governments, too, are takingtheir sovereign responsibilities seriouslyand respondingto the tribalpolity, even if theydo so in ways thatdeviate from the practices of thedominant regime. As scholarshave noted,governmental accountability is part of, not an affrontto, sovereignty.462So the questionremains: as long as Indian nationsare not (yet) requiredto engage in thisexamination of sovereignty,why would they?More importantly,why should they? There are manyreasons why today's tribal nations ought to critically contemplatethe changingnature of sovereigntyand the responsibilities thatare concomitantto theexercise of sovereignrights. After briefly dis- cussingand thendisregarding what might appear to be themost compel- lingjustification for adhering to good Nativegovernance - thatis, to minimize or altogetheravoid furtherfederal encroachmenton tribal governments- I focuson twocompelling reasons for the implementation of good Nativegovernance by contemporary tribal governments. I willdeal, first,with pragmatic considerations. Much of the recent literatureon Indian nations- particularlythat which is criticalof tribal governance- focuseson pragmaticreasons for tribes to moreclosely emulate the dominantsociety.463 There is a sound rationalefor this position. The U.S. governmenthas triedfor many years to effectthe full and totalassimilation of Indian peoples. In fact,there were entireeras of

would wish to limit tribalsovereignty by pointingto examples of politicaldisarray, unenforcedlaw, and irrationallyenforced law."). 461. See, e.g., MichelleChen, Navajos, Cuba StrikeUnprecedented Trade Deal, New Standard,Sept. 4, 2006, at http://newstandardnews.net/content/index.cfm/items/3629 (on filewith the ColumbiaLaw Review). 462. E.g., Resnik& Suk,supra note 429, at 1928 (citingChayes & Chayes,supra note 31, at 27). 463. See, e.g., AmeliaA. Fogleman,Note, Sovereign Immunity of Indian Tribes: A Proposalfor StatutoryWaiver for Tribal Businesses,79 Va. L. Rev. 1345, 1347 (1993) (arguingthat waiver of tribalsovereign immunity for tribal businesses provides "powerful bargainingtool, increases the likelihoodthat tribes will attract non-Indian business, and defuses the impetusfor potentiallyadverse congressionalor judicial action"); Eric Reitman,Note, An Argumentfor the PartialAbrogation of FederallyRecognized Indian Tribes' SovereignPower over Membership,92 Va. L. Rev. 793, 800 (2006) (arguingfor "effectivefederal remedy for the victims of wrongful disenrollment, disenfranchisement, or banishment,and for putativemembers to whom membershiphas been wrongfully denied"); see also Champagne,supra note 92, at 11 (notingthat increased globalization has led Nativepeoples to realize theirgoals for "greatercontrol over theireconomic, political,and culturallives," and correspondingnecessity for "more effectiveforms of government"to achievethose goals); Kalt& Singer,supra note 8, at 21 ("Tribesknow that the SupremeCourt has grantedCongress plenary power to [diminishor abolish tribal government].... Tribeshave, in otherwords, extremely strong incentives to act fairlyto non-Indiansin theirdealings.").

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Indian policy directlydevoted to achieving this goal.464 Even though we are now in an age of Self-Determination,465the Supreme Court has up- held Congress's plenary authorityover Indian affairs,466which has been used in the past and could be used in the futureto effectuatepolicies that are whollydetrimental to Indian sovereignty.There is littledoubt in the context of ICRA decisions, for example, that Congress could authorize federal court review of tribal court decisions if it so chose.467 But Congress's power likely goes even further. In fact, some scholars have noted that "Congress has the power to take away [tribes'] sovereignpowers entirely."468 These pragmaticconcerns are powerfuland real. But I do not focus on them here as a justificationfor adhering to principles of good Native governance. Instead, I assert that, as sovereign nations, tribes ought to contemplate their duties to their citizens independent of what the dominant regime threatens to, or in fact, may do. The concerns that are raised by thisArticle are bigger than the relationshipbetween the Indian tribes and the federal government;rather, they go to the heart of the legitimacy,stability, and survivalof indigenous governments. I contend that the concept of good Native governance has broader and more persuasive application than thatcontemplated in the context of its usefulness in stavingoff the forces of an encroaching regime. Thus, I brieflysketch out here two alternatejustifications for adhering to good Native governance: First,I focus on the prohibitivelyhigh cost of exit to the tribal community. Second, I explore the responsibilitiesthat Indian nations have implicitlytaken on by virtueof theirappeal to internationalhuman rightsprinciples. Most scholarship dealing withexit costs focuses on the price paid by the individual. Turning thatexamination on its head, I focus here on the enormous costs associated with exit, not to the individual, but to the group that remains. If it is true that "the absence of good governance causes economies to atrophyand societies to splinter,"469one plausible reason for this is that those who lose faith in the governmentexit the

464. See Cohen,supra note 193,at 75-84,89-97 (discussingperiods of federal Indian policyknown as "Allotmentand Assimilation"and "Termination"). 465. Id. at 97-113. 466. Lone Wolfv. Hitchcock,187 U.S. 553, 566 (1903). 467. Kalt& Singer,supra note 8, at 20. 468. Id. at 21; see also Frickey,Common Law, supra note 77, at 11 (notingthat Congresshas authorityto dismantletribal rights); Robert A. Williams,Jr., Learning Not to Livewith Eurocentric Myopia: A Replyto ProfessorLaurence's Learning to Livewith the PlenaryPower of Congressover the Indian Nations,30 Ariz. L. Rev. 439, 449 (1988) ("Congresscan unilaterallyand whimsicallydestroy the abilityof tribesto exerciseself- governingpowers."). 469. See Franck,Democracy, supra note 53, at 14.

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community.470As a result,the communityis weaker,more insulated, and more vulnerable to fractionization. Exit of individual Indians from tribal communities is extremely harmfulto tribes in unique ways. Alwaysvulnerable to an encroaching dominant culture, indigenous peoples are particularlyso in this age of globalization.471Given that indigeneityas a wayof life is currentlyunder threat,preserving group identityand Indian lifeways472is more criticalto indigenous peoples' culturalsurvival than ever.473Thus, keeping individual Indians engaged in tribal life- and, accordingly, minimizing incidences of exit by members- is essential for tribes' continued existence. Simplyput, when individual members are forced to leave their tribalcul- tures- either by law, coercion, or ostracism- the group may experience serious cultural loss. Exit should also be minimized because keeping members engaged in triballife facilitates change fromwithin rather than impositionfrom without.474 Expansive avenues for dissent will provide an opportunityfor tribal members,even those who are in the minority,to participate in tribal government475and to contribute to the cultural evolution of the tribe.

470. Dagan 8cHeller, supra note 95, at 590-91 (arguingthat exit is likelyin absence of "democraticself-government"). 471. See Porter,Pursuing the Path, supra note 76, at 130 (statingthat "forces of assimilation"could resultin "completeabsorption of Indigenouspeoples intoAmerican society");Riley, Straight Stealing, supra note 76, at 113 (statingthat threats to indigenous peoples are exacerbatedby globalization). 472. Tribes are strugglingto maintain their cultural distinctiveness,including preservingNative languages, customary law, and access to sacred places. See generally KristenA. Carpenter,A PropertyRights Approach to Sacred Sites: Assertinga Place for Indians and Nonowners,52 UCLA L. Rev. 1061 (2005) (arguingproperty law should protectIndian interestson federallyowned land). 473. See Porter,Pursuing the Path, supra note 76, at 130 ("[T]he survivalof Indigenouspeoples is predicatedupon embracingIndigenization and pursuinga distinct developmentpath at some level."(emphasis omitted)). 474. I recognizethat advocatingthat tribesbe left to change fromwithin is a controversialproposition. This battle- betweenautonomy and equality- rageson within the tribalcontext, and also throughoutthe globe. For example,Noah Feldmanargues in relationto a western-styleconstitution in Iraq: [Constitutional practices emerge and ripeninto custom when the relevant elites see it as consistentwith their interests for these practices to be adopted. Bythis I meanthat political elites tend to guaranteeand enforcerights to theequality and libertyof personsother than themselves only when they come to see thoserights as beneficialto theirown interests in preservingthe constitutional order. So long as egalitarianor liberalprinciples are imposedon politicalelites against what they perceiveas theirown interests,they will resistthem withall means at their disposal. Feldman, Imposed, supra note 14, at 883 (emphasis omitted). But see Sunder, Enlightened,supra note 14, at 893 ("Transnationalinfluence is inescapable;political and culturalautarky is hard to imagine. Powerand ideas hardlypause at passportcontrols. And diversepeoples, even governingelites . . . look acrossborders for validation.") . 475. See, e.g., Gerken,supra note 150, at 1775 (describinghow dissent"encourages electoralminorities to takepart in the projectof governance").

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Makingan effortto keep tribalmembers engaged in triballife enriches the communityand makes it more likelythat the politywill shape the futureof the tribeconsistent with changing values. By contrast,where voice is squelched, individualtribal members may feel theyhave no choice but eventualexit (or exile).476Such optionsare sure to come at the expense of the group'sexistence. When thishappens, both individual tribalcitizens and indigenousnations suffer. The greatlengths to whichmany tribal governments go to keep Indi- ans engagedin triballife evidence that they share these concerns. Some tribesare reconsideringmembership ordinances and modernizingtheir constitutionsto reflecta growingemphasis on inclusiveness.477Other tribeshave extended financial assistance to tribaldescendants who do not qualifyfor official enrollment.478 Even the Santa Clara Pueblo- which, in some respectsmay be creditedwith spurring much of today'scritical dialogue surroundingIndian governments479- is makingattempts to keep those raised in the communityengaged in triballife. They have establisheda committee,which includes children of Santa Clara women who weredenied membershipdue to the decisionin Martinezas well as one of the originaldefendants in the case, to studythe impactof the patriarchalmembership ordinance on the pueblo.480Though the work towardinclusion is laudable, it is indisputablynot universal.And, as

476. See Dagan & Heller,supra note 95, at 590-91 ("'[T]he decisionwhether to exit willoften be takenin lightof the prospectsfor the effectiveuse of voice.'" (citationand emphasisomitted)). 477. See, e.g., ChippewaLeader Seeks Broader EnrollmentCriteria, Indianz.com, Mar. 21, 2006, at http://indianz.com/News/2006/013071.asp(on file with the Columbia Law Review)(noting that Chippewa tribal leaders fear theirone-fourth blood quantum requirementis resultingin "self-termination]"of tribe,and, accordingly,seek to allow blood fromcombination of all Chippewatribes to compriserequisite quantum). 478. See Molly Davis, Tribe Extends Help to Kin Lacking Casino Ties, Press- Enterprise(Riverside, Cal.), May 5, 2006, at Bl (describingMorongo tribe program grantingaid to tribaldescendants who don't receivefunds from tribe's casinos and are in need). 479. See Santa Clara Pueblo v. Martinez,436 U.S. 49, 56, 71-72 (1978). Some critics claim that Santa Clara Pueblo'sdeference to tribal sovereigntyhas resultedin the oppressionof individualrights. See, e.g.,Amy Gutmann, Identity in Democracy47 (2003) (arguingwith regard to Santa ClaraPueblo that "group sovereignty often amounts to a licensefor the dominantmembers of a group to impose injusticeon others");Sunder, Dissent,supra note 29, at 559-60 (arguingthat Court's decision entrenched tribal elites and violatedindividual liberty of Martinez). Mainstreamfeminists have also been highly criticalof the Court'sdecision. See, e.g., CatharineA. MacKinnon,Whose Culture?A Case Note on Martinezv. Santa ClaraPueblo, in FeminismUnmodified 63, 65-69 (1987) (arguingthat Pueblo tribalgovernance is rooted in male supremacy);Judith Resnik, DependentSovereigns: Indian Tribes,States, and the FederalCourts, 56 U. Chi. L. Rev. 671, 702 (1989) (arguingthat Santa ClaraPueblo Court prioritizedsovereignty interests oversubordination of women). 480. See Valencia-Weber,Racial Equality,supra note 128, at 373.

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manytribes continue to lose members,481the long-termsurvival of indigenous groupsgrows correspondingly uncertain. Beyondthe high costs of exit to the community,there is another reason thatIndian nationsought to strivefor good Nativegovernance. Indigenousgroups in the past fewdecades have begun to use human rightsinstruments to asserttheir own claimsfor fair treatment from the governmentsto whichthey are subject.482Because indigenouspeoples are usinginternational human rights systems to advancetheir own claims, I suggestthat they also mustcontemplate the concomitantobligations theyhave, as sovereigns,to the Nativepolity. Thus, any critical examination of sovereignty- tribal or otherwise- must be situatedwithin the largerframework of theserapidly changing global conceptions of thedu- tiesof the state. Despitepresenting many drawbacks, globalization and technological advanceshave made possiblea global networkof indigenouspeoples.483 As a result,indigenous groups have aligned themselves internationally.484 Theynow have a realvoice on theinternational plane, as theycoordinate withNGOs and engagein politicaldiscourse on thenational and interna- tionallevels to advance theirrights under internationallaw.485 Indige- nous peoples are increasinglyemploying the languageof rightsto advo- cate for theircultural and politicalsurvivial, and are oftendoing so as part of a global indigenouspeoples' movement.486In a recentwork, ThomasFranck recounts how Native groups are supportingother indige-

481. The shrinkingof Indian nationsthrough blood-quantum requirements is a subjectof particularconcern. See, e.g., Flies-Away,supra note 162, at 157 (notingthat Hualapai have blood quantumrequirement of one-fourth,which, according to author, meansthat "[d]ue to thediminishing degree of Hualapai blood overa verylong periodof time,under the currentconstitution, the Hualapai Tribe is destinedto disintegrate"). 482. See S. JamesAnaya, International Human Rightsand IndigenousPeoples: The Move Toward the MulticulturalState, 21 Ariz.J. Int'l & Comp. L. 13, 14-16 (2004) (discussinginternational human rights regime and itsconnection to indigenouspeoples); see also UnitedStates v. Dann,470 U.S. 39, 45 (1985); Mayagna(Sumo) AwasTingni Cmty. v. Nicaragua,2003 Inter-Am.Ct. H.R. (ser. C) No. 79, \ 140 (Aug. 31, 2001), availableat http://www.corteidh.or.cr/docs/casos/articulos/seriec_79_ing.pdf(on file with the ColumbiaLaw Review)(holding in favorof humanrights and aboriginalproperty claims of AwasTingni people of MoskitoCoast in Nicaragua);Angela R. Riley,Indian Remains, Human Rights:Reconsidering Entitlement Under the Native American Graves Protection and RepatriationAct, 34 Colum. Hum. Rts.L. Rev.49, 79-83 (2002) (discussingcase). 483. AngelaR. Riley,Indigenous Peoples and thePromise of Globalization:An Essay on Rightsand Responsibilities,14 Kan. J.L. 8c Pub. Pol'y 155, 157 (2004) [hereinafter Riley,Globalization] (noting how indigenouspeoples are using technologyto facilitate theircultural survival and to engage in global indigenouspeoples' rightsmovement). 484. See Anaya,supra note 482, at 14 ("Numerousprocesses within the international systemhave focusedon the commonset of ongoingproblems that are centralto the demands of indigenousgroups .... These internationalprocesses now reveal a contemporarybody of internationalhuman rights law on the subject"). 485. See Coombe,supra note 117, at 128. 486. See id. at 125 (discussingincreased politicization of indigenous peoples in world and theirquest forrights and recognition).

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nous peoples in the world, particularlyas they seek to hold dominant governments accountable for atrocities committed against them.487 Franck tells the story of Letty Scott, an Australian Aboriginal woman whose husband committedsuicide in a Darwin prison.488After his death, Scott became vocal about the treatment her husband and other aboriginals had sufferedat the hands of the Australian government.489 With help fromthe MashantucketPequot Nation, an Indian tribelocated in the state of Connecticut, Scott made her case public. She eventually received the attention of the U.S. Congress, British nongovernmental groups, and the United Nations Human Rights Subcommission.490 As Franck points out: "These [actions] made LettyScott's case a global issue of good governance."491 The LettyScott case illustrateshow indigenous peoples are tapping into norms of good governance to hold states accountable for their historical and continued mistreatmentof indigenous peoples.492 Scott and the Pequots relied on relativelyinformal means to effectuatechange, but the same goals are manifestedin indigenous groups' effortsto use the law and formal legal systemsto reach similar results. One case in particular has garnered much attention. In the fall of 2001, the Inter-American Court on Human Rightsdecided Mayagna (Sumo) Awas TingniCommunity v. Nicaragua.*9*The Awas Tingni, an indigenous group, sought legal recognition of their rights to their traditional territoriesfrom the Nicara- guan government.494The Awas Tingni alleged in their petition to the Inter-AmericanCommission that Nicaragua had not protected the traditional lands of the Awas Tingni, due, in part, to the state's decision to authorize logging by a Korean company in the Awas Tingni's territory.495 Consistent with the findings of the Commission, the Inter-American Court agreed that Nicaragua had violated the Mayagna (Sumo) communityof Awas Tingni's land and resources rightsunder Article 21 of the American Convention on Human Rights.496As a remedy,Nicaragua was

487. Franck,Democracy, supra note 53, at 16. 488. Id. 489. Id. 490. Id. 491. Id. 492. Id. at 17 ("How a governmentgoverns is no longera matterto be determined exclusivelyby each governingelite."). 493. Mayagna(Sumo) AwasTingni Cmty. v. Nicaragua,2003 Inter-Am.Ct. H.R. (ser. C) No. 79, \ 159 (Aug. 31, 2001), availableat http://www.corteidh.or.cr/docs/casos/ articulos/seriec_79_ing.pdf(on file with the ColumbiaLaw Review). 494. S.JamesAnaya & RobertA. Williams,Jr., The Protectionof IndigenousPeoples' Rightsover Lands and Natural ResourcesUnder the Inter-AmericanHuman Rights System,14 Harv.Hum. Rts.J. 33, 37-38 (2001). 495. Id. at 37. 496. Awas Tingni,79 Inter-Am.Ct. H.R. \ 153; see also JamesAnaya, Indigenous Peoples' ParticipatoryRights in Relationto DecisionsAbout Natural Resource Extraction: The More FundamentalIssue of What RightsIndigenous Peoples Have in Lands and Resources,22 Ariz.J. Int'l & Comp. L. 7, 13-14 (2005) (discussingAwas Tingni).

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ordered to enact the necessarymeasures for the "delimitation,demarca- tion, and titlingof [the indigenous community's]lands, . . . withfull par- ticipationby the Communityand takinginto account its customarylaws, values, customs, and mores."497 In another case, Maryand Carrie Dann, two Indian sistersand members of the Western Shoshone tribe,battled the federal governmentfor years to keep their land.498 The U.S. governmenthad long maintained that a monetaryjudgment in favorof the Western Shoshone Nation for takingthe tribe's land had compensated the Danns, even though no dis- tributionplan had been devised to conveythe money to the tribe.499The Danns argued that "the land ha[d] been in the possession of theirfamily from time immemorial"500and that they had never received compensation for the taking.501But the Supreme Court disagreed, ruling against the Danns.502 Eventually,the Danns filed theircase withthe Inter-Ameri- can Commission of Human Rights.503Here, as in Awas Tingni,the Inter- American Commission sided withthe indigenous group, holding that the United States had unlawfullydeprived the sistersof their rights,and that its actions "were not sufficientto complywith contemporary international human rightsnorms, principles, and standards that govern the determination of indigenous propertyinterests."504 As these cases demonstrate,indigenous peoples are takingadvantage of the "human rightsculture"505 to secure their own place in the global community. A theory of good Native governance assumes that corresponding duties come along with indigenous peoples' exercise of their rights.506However, I make thisclaim withone criticalcaveat. That is, the

497. AwasTingni, 2003 Inter-Am.Ct. H.R. 1 164. 498. See United States v. Dann, 470 U.S. 39, 41, 42 (1985) (calling conflict "longstanding").The Courtnoted that the taking of Shoshoneland occurredin thelatter partof the nineteenthcentury. Id. The Dann sistersfiled their action in 1974; it was not arguedbefore the Supreme Court until 1984, with a decisionrendered in 1985. Id. at 39, 43-44. 499. Id. at 44 ("[T]he UnitedStates maintained that the requirementof 'payment' under [the relevantstatute] was satisfiedby the congressionalappropriation of the $26 millionaward into theTreasury account"). 500. Id. at 43. 501. Id. at 43-44. 502. Id. at 50. The Courtdid leaveopen thequestion of whether the Danns possessed "individualaboriginal rights" to theland becausethe lower courts had notaddressed it. Id. 503. Dann v. UnitedStates, Case 11.140,Inter-Am. C.H.R., Report No. 75/02,OEA/ Ser.L./V/II.117,doc. 5 rev. I 1 (2002). 504. Id. \\ 139, 144. Despitethe rulingin theirfavor, however, the Departmentof the Interiorconfiscated and sold the 225 head of cattleon the Danns's land. Getches, Wilkinson& Williams,supra note 80, at 294. 505. See Stacy,supra note 11, at 2049 ("We livenow in a humanrights culture. . . . [Hjuman rightshave become the language in whichpeople, groups,and even nation states,frame their requests for better treatment from others ...."). 506. See Riley,Globalization, supra note 483, at 164 ("[W]hile we can and should hold thepowerful governments of theWest and profit-seeking,multi-national corporations

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statusof Indian tribesas "domesticdependent nations"507 - whose terri- toryis encompassedwithin a larger,dominant government - significantly complicatesissues of sovereignobligation. Virtually all indigenouspeoples existwithin the bordersof largernation-states who owe themdu- ties.508All too often,the relationshipbetween indigenous groups and the nationsin whichthey reside is markedby a denial or completeabro- gationof the responsibilitiesowed to indigenouspeoples. Thus, today's humanrights culture must not onlycontemplate the claims of individual Indiansvis-a-vis tribal governments. It mustalso encompassindigenous peoples' claimsof self-determinationand sovereigntyvis-a-vis the domi- nantstate.509 In sum,it is clear thatcontemporary governments - tribal or otherwise- cannot ignore the human rightsof theirmembers. Sovereignty should not be used as a shield to justifythe denial of basic rightsand liberties.510All sovereignsshould thus, in some sense,strive to be "good." At thesame time,however, the obligationsof tribalgovernments to their membersmust be contemplatedin thecontext of theconcomitant duties owed to tribesby the larger,dominant regime in conjunctionwith the goal- deeply embedded in internationalhuman rightslaw511 - of preservingthe continuationand existenceof minoritycultures.512

Conclusion More workis to be done to fullyconstruct a theoryof good Native governance.While I have drawnon actual examplesfrom indigenous communitiesto supportmy arguments, this piece is largelya theoretical and normativework. I have not undertakenthe kindof empiricalstudy thatwould be requiredto determine,for example, exactly what the op- portunitiesare for exit withineach of the over 500 tribeswithin the

accountablefor their responsibilities, we should not turnour focusaway from our own responsibilitiesto workfor and advocatefor our own people."). 507. CherokeeNation v. Georgia,30 U.S. (5 Pet.) 1, 17 (1831). 508. See Peter Manus, Sovereignty,Self-Determination, and Environment-Based Cultures:The EmergingVoice of IndigenousPeoples in InternationalLaw, 23 Wis.Int'l LJ. 553, 553 (2005) (defining"indigenous peoples" as "raciallydistinct populations whose long-termhistories connect them with identified areas of land situatedwithin the borders of globallyrecognized nations"). 509. Resnik8c Suk, supra note 429, at 1943-44 (addressingclaims of indigenous peoples for "recognitionthrough collective rights to sovereignty"and discussing internationaldocuments that protect rights of indigenousgroups). 510. See id. at 1925-26 ("Whateverprerogatives governments once had, theycannot . . . treathuman beings with utter disregard and assertsovereignty as an absolutedefense to theiractions."). 511. See generallyS.James Anaya, Indigenous Peoples in InternationalLaw (2d ed. 2004) (detailing status of indigenous peoples within internationalhuman rights framework). 512. A futurework provides a frameworkto explain how these competingrights ought to be reconciled. Angela R. Riley, The Human Rights Hierarchy(2007) (unpublishedmanuscript, on filewith author).

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UnitedStates that are engagingin Nativegovernance. And otherimpor- tantquestions similarly remain unanswered. How, forexample, should conflictsbetween the right to dissentand culturalmatch be reconciledin anyparticular case? Whatis thestandard for determining whether a spe- cifictribal forum is fairand nonpolitical?I havenot fully addressed these and otherpressing issues in thispiece, and theyare certainlyworthy of a separate,deeper examination. Nevertheless,this Article represents an initialstep toward conceiving of a new theoryof governanceunique to indigenousnations. This piece revealsthat there are compellingreasons to resistthe temptationto mechanicallyimpose the growingglobal conceptionof good governance on theindigenous peoples ofthe world. Significantly, this Article demon- stratesthat governance exists in our contemporaryworld that may deviate fromthat seen in the developedWest, but thatis, nevertheless,"good." Thus,if one acceptsthe theoryof good Nativegovernance, such acceptance mayhave broaderimplications for defining relationships between otherinterdependent sovereigns situated far beyond the bordersof the UnitedStates.

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