In the modern era, tribes have made tremendous gains in retaining — and reclaiming — their sovereignty.1×1. See, e.g., President Barack Obama, Remarks by the President at the Tribal Nations Conference (Dec. 3, 2014), https://www.whitehouse.gov/the-press-office/2014/12/03/remarks-president-tribal-nations-conference [http://perma.cc/ALK2-VM5K] (“Together, we’ve strengthened your sovereignty . . . .”). But despite this external progress, some tribes have struggled to overcome internal governance challenges.2×2. See, e.g., Joseph Kalt, Constitutional Rule and the Effective Governance of Native Nations, in American Indian Constitutional Reform and the Rebuilding of Native Nations 184, 185 (Eric D. Lemont ed., 2006) [hereinafter American Indian Constitutional Reform]. One such challenge is presented by “IRA constitutions”: those constitutions either passed in the period shortly after adoption of the federal Indian Reorganization Act3×3. Act of June 18, 1934, ch. 576, Pub. L. No. 73-383, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461–479). The history and goals of the IRA are discussed in section A.1, infra pp. 1664–66. (IRA) in 1934 or created later but modeled after constitutions passed during that time.4×4. See, e.g., Introduction to American Indian Constitutional Reform, supra note 2, at 1, 2. IRA constitutions usually lack separation of powers. Instead, they often concentrate all or nearly all of a tribal government’s power into a single “legislative” branch, commonly referred to as a tribal council.5×5. Id. Some tribal councils have used their power to micromanage tribal government,6×6. See, e.g., Stephen Cornell & Joseph P. Kalt, Two Approaches to the Development of Native Nations: One Works, the Other Doesn’t, in Rebuilding Native Nations 3, 16 (Miriam Jorgensen ed., 2007). grant political favors at the expense of economic development,7×7. See, e.g., id. at 13–14. and, perhaps most troublingly, infringe upon individual rights.8×8. See, e.g., Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682, 684 (10th Cir. 1980) (“[T]he plaintiffs sought a remedy [against the tribal council for violations of their rights] with the tribal court, but were refused access to it. The judge indicated he could not incur the displeasure of the Council and that consent of the Council would be needed.”). In light of these and other good-governance concerns,9×9. Generally, when tribal governance scholars refer to good governance they (and this Chapter) mean governments (1) with a “demonstrated ability to serve the polity [that] encourages citizens to feel secure in investing in the future of the community” and (2) that “inspire confidence in outsiders who interact with tribes through social, commercial, and legal dealings.” Angela R. Riley, Good (Native) Governance, 107 Colum. L. Rev. 1049, 1064 (2007). many scholars and tribal citizens have called for reform of IRA tribal constitutions.10×10. See, e.g., Manley A. Begay, Jr., et al., Development, Governance, Culture: What Are They and What Do They Have to Do with Rebuilding Native Nations?, in Rebuilding Native Nations, supra note 6, at 34, 45. However, the very authority abused by some IRA tribal councils has also sometimes permitted tribal councils to thwart reform efforts.11×11. See, e.g., Introduction, supra note 4, at 7. Moreover, some IRA tribes12×12. This Chapter uses “IRA tribe” to refer to tribes that have constitutions typical of those adopted during the IRA era, even when such tribes have not organized under the IRA or the Oklahoma or Alaska versions of the IRA. have failed to enact reform because of other obstacles — such as the financial costs of operating multi-branch government — even when political conditions favored reform.13×13. Of course, some tribes have found that the IRA system serves them well. See Joseph P. Kalt, The Role of Constitutions in Native Nation Building: Laying a Firm Foundation, in Rebuilding Native Nations, supra note 6, at 78, 88–89.
This Chapter is, with one exception,14×14. The exception is that those tribes that use a “general council” model are sometimes in the same position as IRA tribes when it comes to problems such as funding and size. See infra section C.1, pp. 1675–76. about IRA tribes that desire15×15. It is difficult to determine what a tribe “desires” without simply relying on the assertions of the tribe’s elected leadership. However, what a tribe desires and what its leadership claims the tribe desires do not always align. Cf. Cornell & Kalt, supra note 6, at 26 (noting that “[t]he standard approach [to economic development in Indian country] empowers selected individuals . . . but fails to empower the nation.”). but struggle to achieve constitutional reform.16×16. Technically, IRA government reform can be achieved without IRA constitutional amendment, but constitutional amendment is often the most effective path. Cf. Joseph Thomas Flies-Away et al., Native Nation Courts: Key Players in Nation Rebuilding, in Rebuilding Native Nations, supra note 6, at 115, 143 n.15 (“[T]here are ways to achieve court independence other than enshrining the principle in the constitution . . . . [However,] embodying judicial independence in the constitution is usually a more direct (and certainly more common) approach.”). Extant scholarship has urged IRA tribes to develop independent tribal courts.17×17. See Robert B. Porter, Strengthening Tribal Sovereignty Through Peacemaking: How the Anglo-American Legal Tradition Destroys Indigenous Societies, 28 Colum. Hum. Rts. L. Rev. 235, 283 (1997) (observing the existing focus on tribal courts). A notable dissenter on this point is Robert Porter. He has argued that “developing tribal court[s] in the current manner actually erodes tribal sovereignty.” Id. Porter, though, supports the development of tribal peacemaking systems. See id. at 295–304. This Chapter, however, proposes that scholars and reformers also focus on the development of independent tribal executive branches. When enacted together, tribal executive branches and tribal courts might be more effective at overcoming tribal council political opposition to separation of powers than tribal courts are by themselves. Moreover, tribal executive branches might be better suited than tribal courts to overcome other reform obstacles, such as the costs associated with change. And even if independent executive branches do not help tribes overcome their reform obstacles, three-branch separation of powers offers IRA tribes a number of other potential benefits that one-branch systems do not produce. True, both scholars and experience suggest that tribes should not automatically adopt separation of powers. For instance, separation of powers conflicts with some tribes’traditional, non-Western governance principles,18×18. See Duane Champagne, Remaking Tribal Constitutions: Meeting the Challenges of Tradition, Colonialism, and Globalization, in American Indian Constitutional Reform, supra note 2, at 11, 20–21; Kalt, supra note 2, at 201–03. But see Flies-Away et al., supra note 16, at 130 (noting that principles like separation of powers “are by no means exclusively Western ideals”). and some tribal separation of powers experiments have produced poor results.19×19. Interview with Jean Dennison, Adjunct Professor, Univ. of N.C. (Feb. 3, 2010), in Kraynal Alfred & Sierra Howlett, Reforming Tribal Constitutions 88, 91–92 (2010) (discussing the complications the Osage Nation faced when adopting a three-branch system). However, for IRA tribes that desire but have failed to achieve reform, independent executive branches merit further attention.
This Chapter proceeds in four sections. Section A provides background on IRA tribal governments, reviewing (1) their history and typical structure, (2) their perceived flaws, and (3) the most common proposal for their reform: the creation of independent tribal courts. Section A concludes by observing that scholars have largely neglected tribal executive branches as a subject of study in the context of IRA government reform. Section B then addresses a key obstacle to IRA government reform — political opposition by tribal councils — and analyzes how the simultaneous development of tribal courts and tribal executive branches could overcome this obstacle. Section C examines some other key obstacles to IRA constitutional reform: small size, poverty, and Public Law 28020×20. Act of Aug. 15, 1953, ch. 505, Pub. L. No. 83-280, 67 Stat. 588 (codified in scattered sections of 18 and 28 U.S.C.). PL 280, discussed in section C.2, infra pp. 1677–78, altered the scope of federal and state criminal and civil jurisdiction within certain parts of Indian country. (PL 280). It determines that these obstacles might not impede the creation of independent tribal executive branches as they have tribal courts. Thus, for tribes that face these obstacles, the creation of independent executive branches could be a viable temporary alternative to three-branch government. Finally, section D discusses other benefits that three-branch reform can produce.
1. The History of IRA Tribal Governments. — About forty-five percent of modern tribal governments trace their origins to the IRA.21×21. Elmer R. Rusco, A Fateful Time: The Background and Legislative History of the Indian Reorganization Act 301 (2000). A response to the perceived failures of allotment-era policies22×22. See Cohen’s Handbook of Federal Indian Law § 1.05, at 79 (Nell Jessup Newton et al. eds., 2012 ed.) [hereinafter Cohen’s Handbook]. — the goals of which were assimilation, the end of common tribal landownership, and by extension the elimination of “Indian civilization”23×23. See id.; id. § 1.04, at 74; see also, e.g., Champagne, supra note 18, at 18–19. — the IRA was designed to foster tribal self-governance.24×24. See Cohen’s Handbook, supra note 22, § 1.05, at 79–81. Among other things, it contemplated the development and adoption of tribal constitutions. To accomplish this task, the IRA directed the Bureau of Indian Affairs (BIA) to conduct an election in each tribe to determine whether the tribe wanted to be governed by the IRA.25×25. See Elmer Rusco, The Indian Reorganization Act and Indian Self-Government, in American Indian Constitutional Reform, supra note 2, at 49, 57. If the tribe accepted the IRA, the BIA then facilitated the development of a governmental structure for the tribe.26×26. See id. at 62–64. On some accounts, BIA lawyers used a Washington-made model constitution, to be tweaked for the needs of particular tribes.27×27. Graham D. Taylor, The New Deal and American Indian Tribalism 37 (1980). Others have stressed the document was merely an “outline.”28×28. E.g., Rusco, supra note 25, at 62–64.
Regardless of which account is more accurate, at the prompting of the BIA many tribes did indeed adopt tribal constitutions during this period,29×29. See id. at 73–74. and the resultant IRA governments often share a similar governmental structure, one that lacks separation of powers or other checks and balances.30×30. Champagne, supra note 18, at 20. Instead, a single tribal council — usually made up of somewhere between five and fifteen31×31. Kalt, supra note 13, at 86. democratically elected members32×32. Riley, supra note 9, at 1077. — wields nearly all of the tribe’s legislative, executive, and judicial power.33×33. See, e.g., Champagne, supra note 18, at 20 (describing IRA tribal council powers as “usually . . . plenary”). When the majority of the council’s members reach a decision, it is virtually impossible to overturn.34×34. Id.
To the extent an executive exists in these governments, that executive is frequently called the tribal chair.35×35. See Stephen Cornell & Miriam Jorgensen, Getting Things Done for the Nation: The Challenge of Tribal Administration, in Rebuilding Native Nations, supra note 6, at 146, 156–57. Often the council selects the chair from among its own members.36×36. See Kalt, supra note 13, at 86–87. Sometimes the voters directly elect the chair.37×37. See id. at 87. But even under direct elections, “the tribal chair [executive] is chair of the legislature and is only a separate branch of the government in a very weak sense.”38×38. Id. (brackets in original). In part because of this lack of an independent executive, council members in many IRA governments are entangled in the day-to-day execution of the laws and administration of the government.39×39. See Stephen Cornell, Remaking the Tools of Governance: Colonial Legacies, Indigenous Solutions, in Rebuilding Native Nations, supra note 6, at 57, 65, 69–70 (noting the “community expectation” that “tribal councils . . . will do everything,” id. at 65); Cornell & Jorgensen, supra note 35, at 157.
One significant change has occurred in many IRA tribes since the IRA was enacted. In response to congressional efforts to foster tribal, rather than federal, administration of programs designed to benefit Indians, many tribes have developed bureaucracies.40×40. See Cornell & Jorgensen, supra note 35, at 151. The head of a tribal bureaucracy is often referred to as a tribal administrator, a position akin to a city manager.41×41. See id. at 154. Yet unlike city managers — who frequently maintain independence from city councils42×42. See id. at 150. — tribal administrators in IRA tribes usually lack independence.43×43. See id. at 157–58.
2. Perceived Flaws in IRA Constitutions. — IRA tribal constitutions have been heavily criticized in recent decades. Scholars have questioned whether adoption of tribal constitutions facilitated tribal governance, and they’ve speculated that IRA constitutions were designed to force assimilation in response to the non-Indian perception that tribal governance models were inferior to Western ones.44×44. See, e.g., Rusco, supra note 25, at 49–50 (noting but challenging this view). They’ve also criticized the BIA’s use of a one-size-fits-all approach to tribal constitutions45×45. See, e.g., The Harvard Project on Am. Indian Econ. Dev., The State of the Native Nations 19 (2008) [hereinafter The Harvard Project]; Robert J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 34 Idaho L. Rev. 465, 494 n.230 (1998). (and the concomitant failure to incorporate non-Western governance principles into the constitutions46×46. See, e.g., David E. Wilkins & Heidi Kiiwetinepinesiik Stark, American Indian Politics and the American Political System 65 (3d ed. 2011). ). Finally, they’ve alleged that IRA constitutions cannot achieve political legitimacy within tribal communities because they are a product of the federal government rather than of the tribes they govern.47×47. See, e.g., The Harvard Project, supra note 45, at 126 (describing IRA governments as “culturally mismatched systems”); Introduction, supra note 4, at 2; Kalt, supra note 2, at 185.
In addition to these critiques related to the imposition of Western values on IRA tribes, scholars have argued that if tribal governments should be modeled after Western governments, IRA constitutions are insufficiently Western in a key regard: the lack of separation of powers.48×48. See, e.g., Eric Lemont, Overcoming the Politics of Reform: The Story of the Cherokee Nation of Oklahoma Constitution Convention, in American Indian Constitutional Reform, supra note 2, at 287, 301. Scholars and other commentators have observed that thisabsence of separation of powers produces two primary problems. First, it prevents the enforcement of remedies for violations of individual rights.49×49. See Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682, 684 (10th Cir. 1980) (reviewing a dispute where “[t]he [tribal] judge indicated he could not incur the displeasure of the Council”); Steven Chestnut, Firsthand Accounts: Governmental Institutions, in American Indian Constitutional Reform, supra note 2, at 220, 224–26. In the context of tribal government, individual rights can spring from tribal constitutions, tribal statutes, tribal customary or common law, and the Indian Civil Rights Act, 25 U.S.C. §§ 1301–1304 (2012 & Supp. I 2013). See Carole E. Goldberg, Individual Rights and Tribal Revitalization, 35 Ariz. St. L.J. 889, 892, 899 (2003). The federal Constitution, though, does not provide Indians — or non-Indians — rights vis-à-vis tribes because tribes are separate sovereigns that predate the Constitution. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). Allegations of violations of individual rights tend to be associated with tribal enrollment, tribal eviction, and tribal banishment. See, e.g., Riley, supra note 9, at 1050–51, 1072. These types of disputes are outside of the jurisdiction of state and federal courts, leaving tribal bodies as the only possible fora for vindication of individual rights. See id. at 1056. The perceived need to increase protections of individual rights is a key distinction between tribes and a governmental form that otherwise might seem analogous to tribes, or at least small tribes: municipalities. Municipalities often centralize power in a single entity, such as a city council, but federal courts are empowered to prevent municipalities from infringing on federal constitutional and statutory rights. Second, it incentivizes instability, corruption, and micromanagement50×50. See, e.g., Kalt, supra note 13, at 98. that in turn impede the development of a tribe’s government, businesses, or economy more generally.51×51. See, e.g., Andrea Skari, The Tribal Judiciary 36 (1989); Champagne, supra note 18, at 20; Kalt, supra note 2, at 206, 210–11.
3. Proposals for IRA Tribal Government Reform. — Scholars have suggested addressing this separation of powers problem.52×52. See Introduction, supra note 4, at 2–3. But in doing so, they’ve emphasized the development of independent tribal courts, not both independent tribal courts and independent tribal executive branches.53×53. See, e.g., Kalt, supra note 13, at 98 (“Today, establishment of separation of powers is a common theme of many Native nations’ constitutional reform efforts, particularly when it comes to matters of tribal courts . . . .”); McCarthy, supra note 45, at 492 (“[A] series of studies have called for greater independence of the tribal judiciary, culminating in the 1989 report of the Special Committee on Investigations of the United States Senate Select Committee on Indian Affairs.”). This general lack of discussion of executive branches in the literature on IRA tribal governments persists despite the fact that many non-IRA tribes do have independent executive branches. See, e.g., Wilma Mankiller & Michael Wallis, Mankiller, at xxi (1993). In fact, to the extent that scholars have directly discussed tribal executive branches, they’ve often expressed skepticism. Professors Duane Champagne and Joseph Kalt have warned that independent tribal executive branches do not match many tribes’ cultural norms.54×54. See Champagne, supra note 18, at 22; Kalt, supra note 2, at 201–03. Further, Kalt has noted that tribal operations might become too complicated for one office to manage.55×55. See Kalt, supra note 2, at 202–03.
Placing these critiques aside for the moment, why else have tribal executive branches received so little attention? Some scholars appear to be satisfied that in many IRA tribes, tribal executive branches are already sufficiently separated from tribal councils.56×56. See, e.g., The Harvard Project, supra note 45, at 19–20; Wilkins & Stark, supra note 46, at 71. Separately, other scholars seem to have determined that some tribal councils are in practice controlled by tribal chairs.57×57. See, e.g., Kalt, supra note 2, at 201. When these situations exist, empowering a tribal executive branch could prove superfluous — even harmful.
Yet these observations do not hold for a large number of IRA tribes. Many lack any separation between their executive and legislative branches.58×58. See Champagne, supra note 18, at 20–22. And when it comes to the power of tribal chairs, there is evidence that many tribal chairs function as tribal council puppets — rather than the other way around — because they must obey the whims of ever-shifting59×59. See Manley A. Begay, Jr., et al., Rebuilding Native Nations: What Do Leaders Do?, in Rebuilding Native Nations, supra note 6, at 275, 276 (observing high turnover in elected tribal leadership). tribal council coalitions.60×60. See, e.g., Champagne, supra note 18, at 29; Carroll Onsae, Firsthand Accounts: Governmental Institutions, in American Indian Constitutional Reform, supra note 2, at 227, 230. The high turnover of elected leadership in Indian country can decrease a chair’s power both because the chair must readjust to new council members’ priorities and because the chair herself is likely to fear losing her position. In short, then, there is room for the development of executive branches should IRA tribes desire to travel that path; as the next two sections argue, those tribes that desire but have not yet achieved constitutional reform have good reason to explore this avenue.
1. The Problem of IRA–Tribal Council Political Opposition. — As discussed above, one of the very reasons that scholars have advocated for the formation of tribal courts, and the creation of tribal separation of powers more generally, is that tribal councils in IRA tribes normally exercise unchecked, nearly plenary power over tribal affairs. Yet this proposed method for checking tribal council power presents a conundrum: tribal council political opposition itself can prevent the formation and continued operation of independent tribal courts.61×61. As of 2002, the Bureau of Justice Statistics reported that 188 tribes in the continental United States operated tribal courts, Bureau of Justice Statistics, U.S. Dep’t of Justice, Census of Tribal Justice Agencies in Indian Country, 2002, at iii (2002), http://bjs.ojp.usdoj.gov/content/pub/pdf/ctjaic02.pdf [http://perma.cc/PC4J-48J4], though that number is now believed to be higher, Wenona T. Singel, Indian Tribes and Human Rights Accountability, 49 San Diego L. Rev. 567, 581 (2012). The Alaska Legal Services Corporation reported that there were seventy-eight tribal courts in Alaska in 2012. Alaska Legal Servs. Corp., 2012 Alaska Tribal Court Directory at ii–iii (2012), http://alaskatribes.org/uploads/2012-tc-directory.pdf [http://perma.cc/NJY3-PJKC]. The BIA reported that there were 566 federally recognized tribes as of January 2016. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 81 Fed. Reg. 1509 (Jan. 29, 2016).
This conundrum is partly a product of the powers that IRA constitutions frequently grant to tribal councils.62×62. See Champagne, supra note 18, at 20, 28. Whether it be through an IRA tribal council’s unchecked appointment power,63×63. See, e.g., Const. of the Blue Lake Rancheria art. V, § 6(n); Const. of the Hopland Band of Pomo Indians art. XIII, § 2. removal power,64×64. See, e.g., Const. of the Blue Lake Rancheria art. V, § 6(n); Const. of the Hopland Band of Pomo Indians art. XIII, § 4; see also Kalt, supra note 13, at 91–92 (observing that an absence of constitutional protections for tribal court independence leads to “judges who are routinely appointed and then removed from office, as tribal councils approve or disapprove of those courts’ and those judges’ decisions,” id. at 92). authority to control tribal judge salaries,65×65. See, e.g., Const. of the Hopland Band of Pomo Indians art. XIII, § 4; Skari, supra note 51, at 36. or outright power to sit as the tribe’s appellate court,66×66. See Felix S. Cohen, On the Drafting of Tribal Constitutions 32 (David E. Wilkins ed., 2006); Wilkins & Stark, supra note 46, at 77. most IRA tribal constitutions grant the tribal council control over so many facets of the tribal court that the tribal council can prevent a tribal court from forming even when an IRA constitution contemplates that a tribal court will exist. Moreover, these levers of control do not cease to exist after a tribal council appoints a judge. Thus, when a judge decides a controversial case, fear of losing the next election, or personal ethics, might prevent tribal council members from interfering with or ignoring the decision. But law will not.67×67. See, e.g., Flies-Away et al., supra note 16, at 121–22 (describing tribal courts that exist in IRA tribal governments as commonly being “[p]owerless judicial systems,” id. at 121, and noting that in some tribes “elected officials repeatedly meddle in court cases,” id. at 122). And of course, when a tribal court decision is unpopular, disregarding the decision might actually help the incumbent tribal council members win reelection.
Yet the problem is more than just the letter of tribal constitutional law. IRA constitutions have skewed incentives in many tribal governments. Tribal councils — and the simple majority of voters that elected them68×68. Cornell & Kalt, supra note 6, at 13–14 (“[T]ribal governments — and, therefore, elected tribal leaders — are the primary distributors of the resources that tribal citizens need, especially jobs. . . . People vote for whomever they think will send more resources in their direction.”); see also Interview with Robert Williams, Professor of Law, Univ. of Ariz. Law Sch. (Feb. 10, 2010), in Alfred & Howlett, supra note 19, at 118, 120 (observing that when a tribal constitution “spawn[s] . . . a culture of corruption[,] . . . incompetence[,] . . . intransigence[,] . . . and nonaccountability,” voters don’t “trust anybody to reform [their] constitution”). — can lack significant reason to sacrifice their power.69×69. See id.; see also The Harvard Project, supra note 45, at 27 (noting that “like governmental systems everywhere, [governmental forms and institutions in Indian country] create vested interests in their own perpetuation”). Nor is it necessarily easy for voters to overrule the tribal council. True, IRA constitutions sometimes permit the voters to initiate the constitutional amendment process instead of allowing only the tribal council to do so. See Jason P. Hipp, Essay, Rethinking, Rewriting: Tribal Constitutional Amendment and Reform, 4 Colum. J. Race & L. 73, 86–87 (2013). Yet the percentage of voters required to initiate IRA constitutional reform is in fact quite high. Compare id. (noting that the BIA recommends that tribes adopt constitutional provisions that initiate the amendment process upon submission of a petition signed by 30% of the qualified voters and citing IRA tribal constitutions that currently contain similar provisions), with Jennifer Meling-Aiko Jensen, Comment, Legislative Power at Odds: The Effect of a Referendum Petition in Idaho, 48 Idaho L. Rev. 553, 556–57 (2012) (canvassing the thresholds that states set for voter-initiated legislative reform and noting that Wyoming sets its mark at 15%, Oregon at 10%, Washington at 4%, Maryland at 3%, Massachusetts at 2%, Idaho at 6%, and New Mexico at the “hefty” 25%, id. at 556). When this is so, those in the minority can come to see attempts to influence the tribal council as fruitless exercises.70×70. Cf. Carole Goldberg-Ambrose with Timothy Carr Seward, Planting Tail Feathers 22 (1997) (discussing “tribal elections, where members are tempted to use force because they perceive there is no legal authority to restrain corruption, chicanery, or failure to follow tribal rules”); Beverly Wright, Firsthand Accounts: Maximizing Citizen Participation and Ownership in Reform Processes, in American Indian Constitutional Reform, supra note 2, at 272, 275 (“The lack of ‘standing rules’ and respect for one another result in an inability to keep order during meetings and create a hostile environment. . . . This has led to the apathy and nonparticipation we face today.”). Exacerbating the problem, some tribes have attempted reform in the past but reform was not enacted or did not prove durable,71×71. See Chestnut, supra note 49, at 224 (“So the principle [of separation of powers] is there, but implementation is another question . . . .”); Wright, supra note 70, at 274 (“About six or seven years ago, Joe Kalt and some other Harvard researchers came down and put together a report on strengthening our constitution. We went through the whole process and they tore our constitution apart, and they made recommendations and we have a nice report. And I have the report sitting on my shelf and it is covered with dust. The tribal members were not interested.”). undermining reformers’ ability to persuade the citizenry that reform can be achieved in the future.72×72. See Stephen Cornell et al., Seizing the Future: Why Some Native Nations Do and Others Don’t, in Rebuilding Native Nations, supra note 6, at 296, 311. Once incentives are skewed, if reformers successfully enact legal, even constitutional, changes that technically fix the obstacles to tribal court independence, tribal courts can still fail, for self-interest can lead tribal councils to disregard newly enacted legal reforms.73×73. See Chestnut, supra note 49, at 226 (“[Asking the council to fire the judge or reverse a decision] still happens, even after this ordinance [assigning judicial discipline to a Constitutional Court]. . . . I recently got a call from the tribal president, who told me that the tribal council had just voted six to two to remove a judge. So you can write things down . . . .”); see also Robert C. Jeffrey, Jr., Essay, The Indian Civil Rights Act and the Martinez Decision: A Reconsideration, 35 S.D. L. Rev. 355, 356–57 (1990). As Felix Cohen observed, constitutions that are “not the natural offspring of Indian hearts and minds” are “merely scraps of paper.”74×74. Cohen, supra note 66, at 3; cf. The Federalist No. 48, at 305 (James Madison) (Clinton Rossiter ed., 2003) (questioning the sufficiency of “parchment barriers”).
These problems are difficult to overcome. In fact, some tribes have found themselves unable to amend their constitutions until confronted with a crisis.75×75. See, e.g., Lemont, supra note 48, at 287. But, as the rest of this section details, adding tribal executive branches could substantially change the equation. Three-branch reform could prove more appealing to tribal councils, eliminating the need to wait for a crisis to achieve reform. Further, once enacted, three-branch reform could prove more effective because it need not assume that tribal leadership will change: three-branch reform is designed to alter incentives, not people.76×76. Cf. Cornell & Kalt, supra note 6, at 13–14 (noting that tribal council members face powerful temptation to abuse their authority). For those tribes where skewed political incentives are the problem, three-branch reform can push political incentives back in the other direction.77×77. See Flies-Away et al., supra note 16, at 131–32. As mentioned above, Champagne and Kalt have pointed out that concentration of executive power is sometimes a mismatch with tribal cultural norms. Indeed, a tribe should be careful about adopting a governance structure that is not a “cultural match.” At the same time, when a tribe has desired but been unable to achieve reform due to skewed political incentives, that failure in and of itself might be evidence that the tribe’s existing system is a poor cultural match.
2. A Basic Tribal Executive Structure. — As noted above, tribal chairs are the executives within most IRA tribes. But as also noted above, tribal chairs are often “executives” in only a loose sense. In this regard, three characteristics of the relationship between tribal councils and tribal chairs commonly appear. First, a tribal chair’s role is to lead the tribal council, while the executive power itself is exercised by the tribal council as a whole. Second, tribal chairs are often, though not always, chosen by tribal councils from among their own members. Third, tribal council members other than the tribal chair are frequently involved in day-to-day executive functions, including personnel decisions.
To create an independent tribal executive, this Chapter recommends altering all three of these characteristics. First, the executive power should be condensed into a single figure that this Chapter calls a “tribal governor.”78×78. “Governor” is among a number of terms that tribes have used to refer to their chief executives. See Wilkins & Stark, supra note 46, at 70 (noting the use of the terms “president,” “governor,” “chairman,” “spokesman,” “chief,” and “principal chief”). Second, the tribal governor should be a tribal citizen who is chosen and removed solely by the tribal citizenry. Third, the tribal governor’s actions should be unreviewable in at least one key area: the hiring and firing of tribal employees who work in departments that have historically lacked independence from the tribal council.79×79. For instance, tribal gaming commissions — the tribal departments that regulate Indian casinos — have often successfully maintained independence from tribal councils. See Kathryn R.L. Rand & Steven Andrew Light, How Congress Can and Should “Fix” the Indian Gaming Regulatory Act: Recommendations for Law and Policy Reform, 13 Va. J. Soc. Pol’y & L. 396, 456 n.182 (2006). Tribal councils — which start from a position of plenary power — should retain whatever authority is not granted to tribal governors and tribal courts, including the ability to enact tribal legislation and appropriate tribal funds.80×80. For a discussion of other executive reforms IRA tribes might consider, see this Chapter’s Conclusion, infra section E, pp. 1683–84. This Chapter is less prescriptive regarding the form that a tribal court should take, as existing literature has already thoroughly explored many potential approaches to structuring tribal courts. See, e.g., Flies-Away et al., supra note 16. At a minimum, though, a tribal council’s unchecked appointment power, removal power, authority to control tribal judge salaries, and often outright power to sit as the tribe’s appellate court, should be restrained, if not eliminated altogether. Moreover, the tribal court should be empowered to decide separation of powers questions. See id. at 129.
3. Overcoming Political Opposition to Creation of Separate Branches. — One potential way of overcoming tribal council opposition — in the separation of powers context or in any other — is to recognize that tribal councils are not monolithic entities. Rather, they are composed of individual tribal council members. And an individual tribal council member can have incentives that push her to take actions that diverge from the tribal council’s institutional interests.81×81. See Cornell & Jorgensen, supra note 35, at 168 (“Like others, Native Nations confront human nature, the fact that some people are inclined to serve themselves . . . .”).
The creation of a tribal governor presents a situation where the tribal council’s institutional incentives and at least some of the individual council members’ incentives are likely to diverge. After all, many tribal council members, like many politicians in other governments, seek to increase their individual power and prestige. A tribal governor would be more powerful than any individual tribal council member (although not, in this model, than the council as a whole). Consequently, the tribal governor position could also become more prestigious than the tribal council member position. Further, in this model a tribal governor would be a tribal citizen elected by the tribal citizenry. Under IRA constitutions, so are tribal council members. Thus, at the time that the tribal council contemplates whether to embrace or resist the creation of a tribal governor, the tribal council members themselves are the tribal citizens who have the most experience in winning the sort of election that stands as the gateway to the tribal governor position.
It’s possible to set up similar individual tribal council incentives in the design of tribal courts, but doing so imposes costs that are not present in the executive context. Many tribes want judges to come from outside the tribe because, for example, tribal citizens are viewed as incapable of being impartial82×82. See, e.g., Goldberg-Ambrose with Seward, supra note 70, at 44 n.75; Porter, supra note 17, at 280. or, especially in small tribes, the citizenry believes it currently lacks enough citizens qualified to be judges.83×83. See, e.g., Flies-Away et al., supra note 16, at 132. In the same vein, some tribes have required that their judges be attorneys.84×84. See, e.g., Bishop Paiute Tribal Court Ordinance No. 2003-03 § 9 (Aug. 28, 2003). Tribal judges who are attorneys are rare in some parts of Indian country. See David Patton, Tribal Law and Order Act of 2010: Breathing Life into the Miner’s Canary, 47 Gonz. L. Rev. 767, 787 (2012). However, tribes that wish to take advantage of recent federal statutes that affect tribal jurisdiction must hire tribal judges who have legal training. See id. Moreover, even before Congress passed these federal laws, some scholars recommended that tribes increase tribal judges’ minimum qualifications. See Flies-Away et al., supra note 16, at 133, 145 n.20. These requirements inevitably diminish the appeal of the tribal judge position for council members who might otherwise eye a separate branch as a potential political stepping stone. After all, permitting people from outside the tribe to be judges increases competition. And requiring that tribal judges be attorneys would disqualify many tribal council members from being tribal judges. Thus, proposing the creation of a tribal governor and a tribal court would enable reformers to present a reform package that appeals to individual tribal council members, without having to sacrifice the benefits that can stem from the selection of non–tribal citizen attorneys as tribal judges.
Further, some tribal council members will find the tribal governor position inherently more appealing than the tribal judge position, and vice versa. Judicial functions, executive functions, and legislative functions are generally quite different from one another. Creating two new branches at once, then, increases the chance that a majority of the tribal council will desire at least one of the newly created positions.
Finally, if history tends to repeat itself, then the tribes that desire but have failed to achieve reform are the ones where tribal councils are most likely to undermine the tribal court. And as long as tribal council members perceive a real chance that the tribal court will fail, they have less reason to want to be the tribal judge. Yet this vicious cycle can be turned virtuous: if three-branch reform poses a better chance of withstanding tribal council political opposition once enacted than does two-branch reform — as the conclusion to this section now argues — then it also poses a better chance of being enacted in the first instance.
4. Withstanding Political Opposition Once Separate Branches Are Created. — Tribal governors might be effective at resisting attempts to undermine their authority, particularly when they are combined with tribal courts empowered to resolve separation of powers questions.85×85. Cf. Flies-Away et al., supra note 16, at 129 (“Ideally, the tribal judiciary . . . works to ensure that the obligations set forth in the constitution and other tribal laws are met by all those they govern.”). If so, then a tribal governor may be an important addition to tribal efforts at separation of powers reform even if said addition does not help overcome tribal council resistance to the initial creation of separate branches.
Under this model, the tribal governor would have a political base that is independent from the tribal council’s. Thus, when the tribal governor felt her branch was threatened, she would be well placed to make her case directly to the tribal citizens — the citizens she convinced to elect her in the first instance. This benefit is not necessarily unique to elected tribal governors; tribes might also obtain it by creating elected judges. But in this regard the addition of tribal governors to reform proposals provides at least two benefits over the proposals of tribal courts alone: First, it diminishes the downsides of using appointed judges,86×86. See id. at 132 (discussing why tribes sometimes prefer to use appointed judges, such as the fear that elected tribal judges “may be beholden to certain constituencies whose support was key to putting them in office”). because at least two political branches will still exist. Second, because some elected tribal court judges may feel that it is inappropriate for the judicial branch to reach out directly to the citizenry,87×87. Cf. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1666 (2015) (“Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity.”). In particular, judges who are attorneys may have internalized this mindset. Cf. id. (“This principle dates back at least eight centuries to Magna Carta . . . .”). three-branch reform lessens the risk that, even if tribal court judges are elected, the benefits of having multiple political branches will fail to materialize.
Moreover, by enacting three-branch reform, tribes could achieve the benefits of having both citizens and noncitizens serve as checks on tribal councils. As noted above, tribal judges are sometimes not tribal citizens. In some instances a tribal governor who is a tribal citizen may be more effective at fighting battles with the tribal council than a noncitizen tribal judge, as such a judge might be less invested in the tribe.88×88. Cf. Cornell & Kalt, supra note 6, at 21 (“[Outside decisionmakers’] incentives to improve decisions are modest. After all, it’s not their community’s future at stake.”). Other times, noncitizens will feel empowered to challenge a tribal council decision precisely because a noncitizen has nothing to lose but her position. Creating tribal executive branches alongside tribal courts, then, would allow the former to draw from citizens while the latter could include noncitizens.89×89. Cf. Alyce S. Adams et al., Governmental Services and Programs: Meeting Citizens’ Needs, in Rebuilding Native Nations, supra note 6, at 223, 231 (noting that those tribes that have received the “Honoring Nations” award from the Harvard Project on American Indian Economic Development have “a mix of staff recruited from within the tribe’s citizenry and from outside the community”). Relatedly, tribal citizens might end up perceiving some disputes as inappropriate for tribal courts to handle — a perception akin to some of the motivations underlying federal court jurisprudence such as the political question doctrine. Cf. Mankiller & Wallis, supra note 53, at 263 (“I strongly disagreed with that [Cherokee Judicial Appeals Tribunal] decision at the time, and I still believe the judges should have allowed the runoff election to proceed with Bearpaw as a candidate. . . . This virtually handed Byrd the position of principal chief.”). Tribal governors could fight such battles with the tribal council, while leaving to the tribal court those battles that the tribal citizenry perceives as more appropriately resolved in a judicial forum.
Most importantly, constitutional actors in a three-branch system face different incentives than do those in a two-branch system, and these different incentives produce at least two effects. First, they can help curb bad behavior. To any one branch, each of the other two branches becomes not just a potential opponent, but also a potential ally. For instance, if the tribal governor and the tribal council are at odds, they may turn to tribal court resolution.90×90. Cf. Flies-Away et al., supra note 16, at 131 (discussing the role that tribal courts can play in “guard[ing] against flagrant abuses” on behalf of the legislative and executive branches). And if the losing branch subsequently seeks to undermine the tribal court, the winning branch has reason to preserve the court’s independence. Even if at other times the tribal governor and the tribal council are united against the tribal court, they may hold back from attacking the tribal court, or else each lose the court as a potential ally for when the political branches no longer stand together.
Second, the different incentives can encourage good behavior. Those tribal leaders who want to respect the boundaries of their authority, when presented with requests to exceed such boundaries, can say, “I can’t interfere.”91×91. Id. Of course, for some citizens, this claim may ring hollow, and they may continue to demand tribal council action.92×92. See sources cited supra note 73. But without reform, such leaders cannot even credibly make the claim. And of course, culture can change with time. If some citizens begin to believe those leaders who say, “I can’t interfere,” the claim, “I can interfere,” will by extension become less credible, giving even those leaders who are willing to step over the boundaries of their authority less reason to make that claim.93×93. See Flies-Away et al., supra note 16, at 120 (“At the same time, officials who would like to interfere in order to curry political favor with certain constituents are much less able to do so.”).
1. “The California Problem.” — Tribal executive branches could also help tribes that desire but have not achieved reform overcome another key obstacle: “the California problem.” Tribes that are small, poor, and located in PL 280 states face unique burdens when they attempt to implement tribal courts.94×94. Unlike the rest of this Chapter, this section might be relevant not only to IRA tribes, but also to tribes that entrust most of their governmental authority to the general council, “consisting of all adult citizens of the tribe.” Kalt, supra note 13, at 87 (“In extreme cases . . . general councils are the sole governing bodies — the legislatures — of tribal nations.” Id. at 88.). As with the IRA model, many scholars have criticized the accumulation of tribal power in general councils. See, e.g., id. at 88. To the extent that general council tribes have sought but failed to develop tribal courts due to the California problem, this section may be relevant. However, such tribes might need to also empower their tribal councils or else risk creating unchecked tribal governors who present the problems normally associated with IRA tribal councils. Not all such tribes are located in California.95×95. For instance, many small federally recognized tribes exist in Alaska. See Champagne, supra note 18, at 12. And Alaska is a PL 280 state. See Duane Champagne & Carole Goldberg, Captured Justice 15 (2012). The Alaska Native Claims Settlement Act (ANCSA), Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as amended at 43″>https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=43USCAS1601&originatingDoc=If6fdfd614b0211dba16d88fb847e95e5&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)”>43 U.S.C. §§ 1601–1629(e) (2012)), however, presents federally recognized tribes in Alaska with unique problems. See, e.g., Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 523 (1998) (holding that the Native Village of Venetie Tribal Government’s ANCSA lands are not Indian country). However, most tribes in California share these characteristics,96×96. See Champagne, supra note 18, at 12 (noting the small size of California tribes); Champagne & Goldberg, supra note 95, at 16 (noting that all California tribes are PL 280 tribes); Little Change in Poverty, Employment in CA Tribes Since Gaming Started, Capitol Wkly. (Oct. 2, 2008), http://capitolweekly.net/little-change-in-poverty-employment-in-ca-tribes-since-gaming-started [http://perma.cc/U4FK-E6KB] (reporting on the high unemployment and poverty rates among California Indians). nearly one-third of tribes in the lower forty-eight states are located in California,97×97. Compare California Tribal Communities, Cal. Cts., http://www.courts.ca.gov/3066.htm [http://perma.cc/93GX-FJHD] (“There are currently 109 federally recognized Indian Tribes in California . . . .”), with Bureau of Justice Statistics, supra note 61, at iii (placing the number of federally recognized tribes within the continental United States at 341 as of 2002). and data from California indicate that not much reform has occurred there98×98. Data on California tribal courts are inconsistent, but all reported figures are low given that over 100 federally recognized tribes exist in California. In 2004, the National Center for State Courts indicated that there were 105 federally recognized tribes in California but only nine “tribal justice forums.” Nat’l Ctr. for State Courts, Tribal Courts, NCSC Libr. eCollection (2004), http://cdm16501.contentdm.oclc.org/cdm/ref/collection/spcts/id/159 [http://perma.cc/W3L8-P966]. In 2012, Champagne and Professor Carole Goldberg reported that there were at least twenty-four tribal courts in California, counting twenty that are members of court consortia. See Champagne & Goldberg, supra note 95, at 22. The Tribal Law and Policy Institute (TLPI) currently lists twenty-four tribal courts in California. See Tribal Law & Policy Inst., Tribal Courts, Tribal Ct. Clearinghouse, http://www.tribal-institute.org/lists/justice.htm#California [http://perma.cc/ZQ9U-8ZFE] . despite frequent allegations of individual rights violations at the hands of California tribal governments.99×99. See, e.g., Jeffredo v. Macarro, 599 F.3d 913, 915 (9th Cir. 2009) (“[D]espite . . . the potential injustice of [the Pechanga Tribal Council’s decision to disenroll the appellants], we nonetheless lack subject matter jurisdiction . . . . Only Congress can aid these appellants.”); Elizabeth Larson, Indian Disenrollments a Statewide, Nationwide Issue, Lake County News (Dec. 5, 2008, 9:27 PM), http://www.lakeconews.com/index.php?option=com_content&view=article&id=6567:-indian-disenrollments-a-statewide-nationwide-issue&catid=1:latest&Itemid=197 [http://perma.cc/LHN8-UPT3] (“[Disenrollment] is such a concern in Indian Country that last year, American Indian Movement activist Dennis Banks said that the Bureau of Indian Affairs needed to intervene to stop the California disenrollments.”). Thus, this Chapter calls the obstacles created by the confluence of being a small, poor, PL 280 tribe “the California problem.” But these obstacles need not occur simultaneously for them to impede tribal court development. When any one of them exists, creation of an independent executive branch could help a tribe accomplish reform, albeit to a lesser degree than it can when all three factors are present.
2. The Obstacles that Face PL 280 Tribes. — PL 280 is a congressional statute that “withdrew federal criminal jurisdiction on reservations in six designated states . . . and authorized those same states to assume criminal jurisdiction and to hear civil cases against Indians arising in Indian Country.”100×100. Goldberg-Ambrose with Seward, supra note 70, at 1. It also “established [for all other states]
a mechanism for the future assumption of the same type of criminal and civil jurisdiction.”101×101. Id. Today the states that retain at least partial jurisdiction under PL 280 are Alaska, California, Florida, Idaho, Minnesota, Montana, Nebraska, Oregon, Washington, and Wisconsin.102×102. Champagne & Goldberg, supra note 95, at 14–18.
On its face, PL 280 is about state and federal jurisdiction, not tribal jurisdiction. In fact, tribes in PL 280 states retain their inherent jurisdiction, which runs concurrently with state and federal jurisdiction.103×103. See Cohen’s Handbook, supra note 22, § 6.04[c], at 555 (“The nearly unanimous view among tribal courts, state courts, lower federal courts, state attorneys general, the Solicitor’s Office for the Department of the Interior, and legal scholars is that Public Law 280 left the inherent civil and criminal jurisdiction of Indian nations untouched.” (footnotes omitted)). Nevertheless, PL 280 undermines the development of tribal courts and police departments, primarily by affecting federal funding: the BIA uses PL 280 as a reason not to fund tribal governance initiatives in Indian country, arguing that PL 280 “made tribal jurisdiction unnecessary.”104×104. Goldberg-Ambrose with Seward, supra note 70, at 11; see also id. at 200 (noting that in this context “funding decisions are a function of past funding, not of policy or formula,” and that even when federal grants for tribal courts are available to PL 280 tribes, they “must compete with much more developed tribal judicial systems in non–Public Law 280 states for very limited tribal court funds”).
Yet the lack of federal funding for tribal courts is not the only relevant consequence of PL 280. Assertion of state and federal jurisdiction over Indian country undermines corresponding tribal assertions of authority. In non–PL 280 Indian country, tribes are the only sovereigns empowered to adjudicate certain types of cases, such as contract disputes between Indians and non-Indians in which the non-Indians are the plaintiffs (when conventional federal diversity jurisdiction is not triggered),105×105. See Williams v. Lee, 358 U.S. 217, 217, 222–23 (1959) (holding that states cannot exercise jurisdiction over such disputes absent congressional authorization). and nonmajor crimes committed by Indians against Indians.106×106. See Cohen’s Handbook, supra note 22, § 9.04, at 765 (addressing tribal criminal jurisdiction). But when PL 280 applies, the existence of a state system diminishes the urgency of developing a tribal court: everyday issues that occur on the reservation and that do not involve violations of tribal individual rights or other abuses of tribal authority are handled by the state court rather than left unresolved. Moreover, tribalcitizens — not necessarily happy using state courts but at least finding from experience that state court resolution of disputes is tolerable107×107. Champagne & Goldberg, supra note 95, at 105 (reporting the results of a survey in which 43.8% of PL 280 reservation residents indicated that nontribal PL 280 courts provide good quality services to PL 280 reservation communities). — may be wary of bringing their cases before an “untested” tribal court.108×108. Phillip P. Frickey, Context and Legitimacy in Federal Indian Law, 94 Mich. L. Rev. 1973, 1985 (1996) (reviewing Frank Pommersheim, Braid of Feathers (1995)). Thus, after a tribal court is developed, it may still struggle to gain a caseload that justifies its cost and enables it to gradually develop a reputation for fairness.109×109. Cf. Flies-Away et al., supra note 16, at 140 (“As Indigenous nation courts work according to processes and rules that resonate with the community, and as they restore relationships, exercise jurisdictional authority in support of community goals, and protect citizens from inappropriate government actions, they are gaining citizen trust.”). Even the Supreme Court, although not specifically in the context of PL 280, has observed: “allow[ing] the exercise of state jurisdiction” can “undermine the authority of the tribal courts over Reservation affairs.”110×110. Williams v. Lee, 358 U.S. 217, 223 (1959).
3. The Economy-of-Scale Problems that Face Small, Poor Tribes. — A lack of resources makes operating a government, tribal or nontribal, difficult. And unfortunately, tribal governments usually lack resources, even given the success that some tribes have experienced operating businesses such as casinos.111×111. Dwanna L. Robertson, The Myth of Indian Casino Riches, Indian Country Today Media Network.com (June 23, 2012), http://indiancountrytodaymedianetwork.com/2012/06/23/myth-indian-casino-riches [http://perma.cc/KV45-NCDH] (noting that “many tribes operate casinos primarily to generate employment,” that “many ‘tribal facilities’ are just trailers with bingo,” and that the majority of tribes lack casinos).
Exacerbating the obstacle that a lack of resources presents, economy-of-scale problems plague small tribes. A 1991 National Congress of American Indians report noted that the Department of Interior, Office of Inspector General (OIG) — assigned to negotiate most tribes’ indirect cost rates for certain tribal-federal contracts — had approved for those tribes with under $500,000 of relevant federal contract funds to spend on direct services an average of 49.5% of that amount to cover indirect costs, such as administrative salaries.112×112. Nat’l Policy Work Grp. on Contract Support Costs, Nat’l Cong. of Am. Indians, Final Report 8 (1999), http://www.ncai.org/policy-issues/tribal-governance/Final_Report_on_CSC_July1999.htm [http://perma.cc/ST57-2NKY]. The OIG reviews these tribal indirect cost rates to determine, among other things, that “all of the costs are reasonable and necessary.” Id. By contrast, that rate was 31% when tribes had $1 million to $5 million to spend on direct services and 22.7% when tribes had over $20 million to spend on direct services.113×113. Id. Plus, economy-of-scale problems apply to the human capital context.114×114. See Carole Goldberg & Duane Champagne, UCLA Am. Indian Studies Ctr. for the Advisory Council on Cal. Indian Policy, A Second Century of Dishonor: Federal Inequities and California Tribes 113 (1996), https://law.ucla.edu/~/media/Files/UCLA/Law/Pages/Publications/CEN_NAT_PUB%20A%20Second%20Century%20of%20Dishonor.ashx/?filedownload=1. [http://perma.cc/6JNT-SREV] (“In small tribal governments, tribal employees have little job security, since grants are usually short term and often cannot be relied upon for stable planning and secure employment. . . . Without a sufficient administrative base, small tribal administrations have difficulty mobilizing grant writing for securing additional programs and funds for the community.”). For instance, in the event of a tribal judge’s unexpected resignation, a tribal court system with a dozen judges can give each remaining judge a higher workload, but a tribal court with just one judge must, at the very least, temporarily stop operating.
Tribal courts, for their part, are not free. Data about tribal court budgets are hard to come by, but even outside the small tribe context, tribal courts have been characterized as “desperately underfunded, many barely able to keep their doors open.”115×115. McCarthy, supra note 45, at 513; see also Champagne & Goldberg, supra note 95, at 43 (“Insufficient funding is a major issue in Indian country . . . court administration.”). Not surprisingly, then, operating a tribal court can be “impractical and inefficient” for many poor, small tribes.116×116. See Goldberg-Ambrose with Seward, supra note 70, at 196.
4. The Court Consortium Solution. — Some scholars have proposed that court consortia could help solve the California problem by providing economies of scale.117×117. See id. at 36–38, 203; see also Champagne, supra note 18, at 25. Court consortia, for instance, help tribes collectively build caseloads as well as reduce the per-tribe financial cost of operating a court.118×118. See Goldberg-Ambrose with Seward, supra note 70, at 202. The close proximity of many small, poor, PL 280 tribes also pushes in favor of court consortia. For example, a large number of California tribes are located in Mendocino, Lake, Riverside, Shasta, Modoc, and San Diego counties. See California Tribal Lands, U.S. Envtl. Protection Agency (May 16, 2011), http://www3.epa.gov/region9/air/maps/pdfs/air1100040_3.pdf [http://perma.cc/97HJ-ECD7].
However, many tribes have not adopted the court consortium solution. For instance, only two court consortia exist in California,119×119. At least, the TLPI lists two court consortia in California: the Intertribal Court of Southern California and the Intertribal Court of Northern California. Tribal Law & Policy Inst, supra note 98. Champagne and Goldberg reference two court consortia in southern California but not the court consortium in northern California, implying that perhaps three such consortia exist. See Champagne & Goldberg, supra note 95, at 22. despite the fact that this solution was first proposed at least twenty years ago. Why haven’t more court consortia developed? One possible explanation is that even the reduced costs of running a court consortium present some tribes with too great a financial obstacle. Further, perhaps some tribes are so remote that they have found the geographic distance between themselves and potential consortium partners to be too great.
But another possible explanation is that perhaps many small, poor, PL 280 tribes — such as those in California, which are, again, the subject of many allegations of political corruption — suffer not only from the California problem, but also from the political opposition problem. Court consortia are no more effective than individual courts at addressing this problem.120×120. See supra section B.1, pp. 1668–71. In fact, some of the very benefits that court consortia offer — such as “ensur[ing] a greater level of due process,”121×121. Goldberg-Ambrose with Seward, supra note 70, at 202. “maintain[ing] a degree of disinterest,”122×122. Id. and “providing decision-makers who come from outside the small community”123×123. Id. at 44 n.75 (acknowledging that use of outside decisionmakers is “sometimes viewed positively, sometimes negatively”). — are the very reasons that a tribal council may want to resist creating an independent tribal court. And as with individual courts, there is nothing to impede a tribal council from reversing its decision to create a consortium.124×124. See id. at 202–03.
A final possible explanation is that the political opposition problem might also exist on the other side of the court consortia equation. To form a consortium, tribes need not necessarily permit one another to intervene in one another’s affairs: the consortium might instead function almost as a “temp agency,” simply loaning its judges and staff to tribes without having authority to affect the outcome of the disputes being resolved or the nature of the substantive law being applied.125×125. See NICS History, Nw. Intertribal Ct. Sys. (Mar. 19, 2015), http://www.nics.ws/about/about.htm [http://perma.cc/A4RM-A885]. But small tribes that are located near one another are the most likely to have familial ties by blood or marriage,126×126. See, e.g., Suzanne Abel-Vidor et al., Remember Your Relations (1996) (tracing the genealogy of a family with branches that extend into various small tribes “in Sonoma, Mendocino, and Lake Counties” in California, id. at 15). and often in Indian country, tribal politics are family politics.127×127. Cf. Interview with Dante Desiderio, Econ. Dev. Policy Specialist, Nat’l Cong. of Am. Indians (Dec. 17, 2009), in Alfred & Howlett, supra note 19, at 69, 77 (“In economic development, when you are hiring somebody, it’s family. And inverse, when you are firing somebody, it is family. It has repercussions that are political no matter what. It’s not just business like with a bunch of population. And at the same [time] on the council . . . [there] are these different families . . . . [There are] about seven families in the community, they all come with their own status in the community . . . .”). Thus, if one of the consortium tribes’ councils attempts to abuse the consortium’s tribal court, will the leaders of the other tribes want the headache of fielding complaints from family members and tribal members who believe that the other tribes should intervene?128×128. Cf. The Harvard Project, supra note 45, at 29 (“The growth of intertribal organizations is often constrained by the fact that tribes do not always share the same interests — and it is a mistake to assume they do. The increased accountability imposed on tribal officials by self-determination understandably compels those officials to pay particular attention to concerns at home. This often leaves little time or resources to be allocated toward intertribal efforts.”). The leaders of the other tribes might respond to complaints by noting that they lack the authority to intervene, but the complaints may still come. Cf. Chestnut, supra note 49, at 226 (noting that even though the Northern Cheyenne Tribe has adopted a system that does not permit its tribal council to hear complaints for removal of judges, “people running to the council” with such complaints “still happens”).
5. Tribal Governors and the California Problem. — For those tribes that have not found the court consortium approach sufficient to overcome the California problem, the creation of a tribal governor could be a solution. Unlike judicial functions, executive functions are not fundamentally affected by PL 280’s grant of adjudicatory jurisdiction to state courts.129×129. PL 280 affects law enforcement funding. Champagne & Goldberg, supra note 95, at 44. However, this Chapter does not contemplate that executive branches should need to resort to use of police to resolve their disputes with other branches. Further, in contrast to the consortium approach’s potential to create political obstacles when proposed alone, the ways that a tribal governor helps overcome tribal council political opposition to creation of an individual tribal court would also help surmount opposition to the creation of a consortium.
Lastly, like court consortia, tribal governors can help small, poor tribes overcome financial obstacles to reform. As discussed in section A.1, IRA tribes often employ a tribal administrator, akin to a city manager. Even if they do not, tribes must spend some money on administration, whether it be on human resources staff, financial staff, or even just clerical assistance.130×130. See Cornell, supra note 39, at 69–70. Some of those functions could be left to the tribal governor, with the resulting financial savings used to fund the tribal governor’s salary, if any. As a result, some tribes might even find the tribal-executive approach to be superior to the tribal court consortium approach on this metric: The consortium approach only reduces the costs of running a tribal court. Creation of an executive branch could be budget neutral.
For this reason, the creation of tribal governors might even be an effective temporary alternative to the development of tribal courts. When financial constraints make the operation of a court — consortium or otherwise — impossible in the short term, creation of a tribal governor could still prove feasible. And although tribal governors cannot provide many of the benefits that tribal courts provide, the creation of tribal governors alone would still provide some separation of powers benefits, just as courts have provided some benefits even without the help of tribal governors.
1. Improved Government Administration and Economic Development. — Three-branch reform offers more than just the possibility of overcoming reform obstacles. All of the benefits that might come from two-branch reform seem likely to result from three-branch reform, and tribal governors may offer additional benefits.131×131. This brief review is not a comprehensive list of all the benefits that tribes can reap from the creation of tribal courts and tribal executive branches. Cf. Flies-Away et al., supra note 16, at 117 (“An effective tribal judiciary is a critical player in the process of nation building: it advances sovereignty, helps uphold the nation’s constitution, helps ensure the maintenance of law and order, bolsters economic development, promotes peace and resolves conflicts within the community, preserves tribal customs, and develops and implements new laws and practices for addressing contemporary realities.”).
For instance, many scholars have concluded that effective government administration and tribal economic development are linked132×132. See, e.g., The Harvard Project, supra note 45, at 123. and that separation of powers facilitates both. Tribal courts send a strong signal to investors that the tribe is committed to nonpartisan resolution of disputes.133×133. Stephen Cornell et al., Citizen Entrepreneurship: An Underutilized Development Resource, in Rebuilding Native Nations, supra note 6, at 197, 217. Additionally, tribal courts can impede political interference in tribal employment decisions by providing a neutral, nonpolitical forum for resolution of employment disputes.134×134. Cornell & Jorgensen, supra note 35, at 162–63. Perhaps most convincing, empirical research has shown that tribes with at least some separation of powers perform better economically than do tribes without, whether the separation of powers be the presence of tribal courts135×135. Kenneth Grant & Jonathan Taylor, Managing the Boundary Between Business and Politics: Strategies for Improving the Chances for Success in Tribally Owned Enterprises, in Rebuilding Native Nations, supra note 6, at 175, 196 n.4. or just democratically elected tribal chairs.136×136. See Kalt, supra note 13, at 88. Even if tribal governors themselves do not help in this regard, if they help tribal courts come into existence, then tribal governors may be worth developing.
Importantly, tribal governors also provide separate benefits. Micromanaging sometimes occurs in IRA tribal governments.137×137. Kalt, supra note 2, at 206; cf. Champagne, supra note 18, at 20–22 (noting that IRA executives often “d[o] not have direct power over the administration of the tribal government,” id. at 20, and that IRA tribal governments often lack “general administrative capability,” id. at 21). But when one person is accountable for day-to-day operations, that person has a strong electoral incentive to ensure the organization operates efficiently.138×138. As noted above, Kalt has argued that modern tribal operations often become “too large and complicated to be run entirely out of the chief executive’s office.” Kalt, supra note 2, at 203. However, ensuring that one governor is ultimately responsible for day-to-day management of the tribal government need not prevent the governor from delegating her authority when appropriate to do so. After all, outside of Indian country there are not calls for reform of the presidency because the federal government is too complicated for one President and her staff to manage, or for corporate reform because a Fortune 500 company is too complicated for one CEO and her staff to manage. Also, voters choosing a tribal governor can focus more on choosing a person who is a good manager than they can when choosing a tribal council member who is responsible for legislative, executive, and judicial functions.139×139. For the same reasons, three-branch separation of powers might lead to the selection of tribal council members who are better legislators, or at least make it easier for tribal council members to focus on legislating. Cornell & Jorgensen, supra note 35, at 158 (“Shifting certain responsibilities from councils to other organs of government allows councils to focus on certain core tasks such as setting strategic direction and policy, making laws, and building effective administrative institutions . . . .”). And tribal citizens with strong management skills are more likely to self-select into the tribal governor position if they believe the position encourages voters to reward those skills.140×140. Further, bad managers might self-select out of the tribal governor position. As tribal council members, such individuals might hide their lack of expertise by blaming other council members for mistakes or reluctance to compromise. By contrast, the accountability expected of a single tribal governor would cast a direct spotlight on the tribal governor’s actions. Anecdotal evidence provides some support for the claim that these benefits are more than just theoretically achievable. For instance, “Chief Phillip Martin of the Mississippi Band of Choctaw Indians cites . . . longer terms of office for council members and the establishment of an executive branch as the critical foundation for the band’s well-documented emergence as an economic and political powerhouse.”141×141. Kalt, supra note 13, at 78.
2. Protection of Individual Rights. — The role that independent tribal courts can play in protecting individual rights is self-evident — so clear as to almost render the observation unnecessary. Yet tribal governors, too, could help solve the individual rights problems that have concerned many advocates of tribal separation of powers.142×142. See supra note 49. Although a source of contention among (U.S.) constitutional scholars, there has been “a striking resurgence in interest in executive review,” especially interest in whether “executive review includes the authority to refuse to enforce federal statutes that the President believes to be unconstitutional.”143×143. Norman R. Williams, Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage, 154 U. Pa. L. Rev. 565, 565 (2006). A tribal governor who has the ultimate control over executive enforcement decisions might choose to exercise executive review in this manner. This protection would be more than just an additional safeguard on top of the protection that tribal courts can provide: unlike a tribal court, a tribal governor could act prospectively and broadly, rather than wait to adjudicate a specific dispute.
Tribes that have desired but failed to achieve reform should consider three-branch reform. Such reform could overcome the tribal council political opposition that is a key impediment to the development of separate branches in some IRA tribal governments. Further, when tribes face the California problem, tribal governors might even be a useful alternative to the creation of tribal courts until the California problem becomes surmountable. And even if three-branch reform is no easier to enact than two-branch reform, three-branch reform might provide a number of other important benefits.
Yet this Chapter offers only a starting point for the development of three-branch IRA governments. Many questions of institutional design remain. To name just three: Should tribes create safeguards within the executive branch to protect tribal employees from arbitrary employment termination decisions, akin to civil service protections that exist within the federal government?144×144. See, e.g., Cornell & Jorgensen, supra note 35, at 163. Should tribal governors have veto authority over certain tribal council actions? Should tribal councils be able to define the scope of tribal court jurisdiction?
Moreover, separation of powers is not the only possible path toward good governance. Although this Chapter has argued that three-branch separation of powers deserves another look from at least some tribes, it will still sometimes prove to be the wrong option. Plus, many tribes find that their systems of government function quite effectively, so they do not need to seek reform.145×145. See, e.g., Cornell & Kalt, supra note 6, at 3–5 (listing tribal-governance success stories). Even when an IRA tribe decides to address the problems it perceives in its constitution by pursuing Western separation of powers, separation of powers takes time146×146. See Flies-Away et al., supra note 16, at 129 (recommending that reform efforts not proceed too quickly); Interview with Jean Dennison, supra note 19, at 91–92 (noting that the Osage Nation did not find success in adopting a three-branch system but also acknowledging that the Nation rushed its constitutional reform process). and is no cure-all.147×147. Cf. Kalt, supra note 2, at 211 (“As the United States itself learned through Marbury v. Madison in 1803 and repeatedly through FDR’s attempt at court-packing, establishing and protecting the independence of a nation’s judiciary is an unending challenge.” (footnote omitted)). Tribes, and nontribal sovereigns, that seek and achieve three-branch separation of powers still struggle, as governing is not easy.148×148. The Cherokee, for instance, have three branches of government, yet the Cherokee Freedmen dispute is perhaps the highest profile instance of controversial tribal governance. See Introduction, Tribal Sovereignty vs. Racial Justice, N.Y. Times: Room for Debate (Sept. 15, 2011), http://www.nytimes.com/roomfordebate/2011/09/15/tribal-sovereignty-vs-racial-justice [http://perma.cc/AD3R-HWJ3]. But to achieve good governance, tribes have no choice except to tackle these challenges — creatively, open-mindedly, and head on.