The Granting of Tribal Sovereignty

APPLICABLE & CONTROLLING CASE LAW

For White Feather Concierge & Wellness Program

By Hon. Benjamin Zvenia

The NC Nottaway Tribal Community (herein after “NCNTC”) through a tribal enactment by the Hoopa ValleyTribe in 1995, bestowed NCNTC with a Hoopa Tribal Corporation giving rise to a federally recognized Tribal Economic Development Corporation for NCNTC. NCNTC in turn, through resolution, added additional tribal sub-entities and tribal governance programs in both Midwest and Southwest areas (NTC-SW) to expandprograms along with the Nottaway Tribal Health Department. As part of the tribal governmental processes, the Native American Churches (NAC) with spiritual healing and sacrament were recognized and adopted. Indeveloping and furthering its Health Care concerns, NCNTC, by and through Tribal Resolution SBM20J-13 dated 20 Jan 2013 (Tribal health Clinics) authorized the Nottaway Tribal Health Department, along with NACBranches or Lodges, to provide services to all enrolled tribal members or those non-Indians authorized to partake of services through its Sacred Healing Centers. As programming grew and as the tribal medical programs under 25 USC Section 1680u took root, our program banded and merged in 2018 with the Crow Nation to protect and further the definition of “Indigenous and Traditional Medicine”. Our programs registering tribal practitioners and healers along with licensing of tribal clinics now fall under Crow Resolution Executive Order No. 2019088-01 signed by Chairman Alvin Nor Afraid, Jr. on 29 March 2019. NTC-SW and NTC communities in furtherance of their healthcare concerns as an economic engine model, utilize all thathas been banded together with the addition of White Feather Concierge & Wellness Centers program as authorized by Resolution on 30 Sept 2021.

 

Additionally, it is to be understood that this NTC-SW Tribal Health Care Venture is a Tribal EconomicProgram in accordance with IRS Code Section 7871 and operates under 25 USC Section 1680u.

 

A Tribe enjoys sovereign immunity for claims that happen in Indian Country and can “exercise sovereignpower over non-Indians who enter tribal lands.” Williams v. Lee, 358 U.S. 217, 233, 79 S.Ct. 269, 3L.Ed.2d 251 (1959). The term “Indian Country” encompasses more than just the reservation itself; it alsoincludes land set aside for “dependent Indian communities” (United States v. McGowan, 302 U.S. 535,58 S.Ct. 286, 82 L.Ed. 410 (1938)) and “allotments” (United States v. Pelican, 232 U.S. 442, 34 S.Ct.396, 58 L.Ed. 676 (1914)).

 

Since 1832, when Chief Justice Marshall held in Worcester v. Georgia, that “the Indian tribes had always been considered independent political communities, retaining their original natural rights,” and finding that tribes should be viewed as “a distinct community, occupying its own territory” over which the laws of the state “can have no force,” Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), it has been awell-settled principle that states have no jurisdiction over tribal affairs “absent a clear waiver by the tribe or congressional abrogation.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978).

 

In further recognition of the Tribes’ inherent right, the U. S. Supreme Court has held that the “policy ofleaving Indians free from state jurisdiction and control is deeply rooted in this nation’s history,”McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), and that such policy is supported by the federal preemption doctrine as well as the Tribes’ internalsovereign rights. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d665

(1980).

 

Pursuant to the Indian Reorganization Act (IRA), tribes are allowed to form corporations and other quasi-corporate entities in order to compete in the world of commerce without waiving their immunity. 25 U.S.C.Sections 461-494. An exception exists of a “sue or be sued” clause is applicable relative to IRA Section 17 Corporations. However, this would normally only apply to a public corporation, such as housing authorities. Marceau v. Blackfeet Housing Authority (Marceau I), 455 F.3d 974 (9th Cir. 2006) [Foradditional points of law from this case pertaining to tribal entities and exhaustion of remedies seeMarceau v. Blackfeet Housing Authority (Marceau II), 519 F.3d 838 (9th Cir. 2008) and Marceau v. Blackfeet Housing Authority (Marceau III), 540 F.3d 916 (9th Cir. 2008)]. Otherwise, a tribal entity, “as an arm of the Tribe, enjoys the full extent of the Tribe’s sovereign immunity.” Ninigret DevelopmentCorporation v. Narragansett Indian Wetuomuck Housing Authority, 207 F.3d 21, 29 (1st Cir. 2000).

 

Officers of a Tribal business entity are also personally protected under this doctrine. White Mountain Apache Tribe v. Shelley, 107 Ariz. 4, 6-7, 480 P.2d 654 (1971). So long as “the actions of an officer do not conflict with the terms of his valid statutory authority, then they are actions of the sovereign, whether ornot they are tortious under general law. Boisclair v. Superior Court, 51 Cal. 39 1140 (1990).

 

Furthermore, the location of the activity is not determinative with regard to the application of sovereign immunity. In re Greene, 980 F.2d 590. 593-597 (9th Cir. 1992). Tribal sovereignty exists “without drawing adistinction based on where the tribal activities occurred … nor … between governmental and commercial activities of a tribe.” Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). Thus, the doctrine of sovereign immunity extends beyond thegeographical borders of a tribe’s reservation and covers commercial activities with persons who are notmembers of the tribe.

 

This doctrine was upheld in the 2014 United States Supreme Court decision Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) which held:

 

Among the core aspects of sovereignty that tribes possess—subject, again, to congressional action—is the “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo, 436 U. S., at 58. That immunity, we have explained, is “a necessary corollary to Indian sovereignty and self-governance.” Three Affiliated Tribes of Fort Berthold Reservation v. WoldEngineering, P. C., 476 U. S. 877, 890 (1986); cf. The Federalist No. 81, p. 511 (B. Wright ed.1961) (A. Hamilton) (It is “inherent in the nature of sovereignty not to be amenable” to suit withoutconsent). And the qualified nature of Indian sovereignty modifies that principle only by placing a tribe’s immunity, like its other governmental powers and attributes, in Congress’s hands. See United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 512 (1940) (USF&G) (“Itis as though the immunity which was theirs as sovereigns passed to the United States for theirbenefit”). Thus, we have time and again treated the “doctrine of tribal immunity [as] settled law” and dismissed any suit against a tribe absent congressional authorization (or a waiver). Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756, 118 S.Ct. 1700, 140 L.Ed.2d 981(1998).

 

First, in Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U. S. 165, 167–168, 172–173 (1977), and then again in Potawatomi, 498 U. S., at 509–510, we barred a State seeking to enforce its laws from filing suit against a tribe, rejecting arguments grounded in the State’s own sovereignty. In each case, we said a State must resort to other remedies, even if they would be less “efficient.” Id., at 514; see Kiowa, 523 U. S., at 755 (“There is a difference between the right to demand compliance with state laws and the means available to enforce them”). That is because, as we have often stated (and contrary to the dissent’s novel pronouncement, see post, at 3 (opinion of THOMAS, J.) (hereinafter the dissent)), tribal immunity “is a matter of federal law and is not subject to diminution by the States.” 523 U. S., at 756 (citing Three Affiliated Tribes, 476 U.S., at 891; Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 154 (1980)). Or as we elsewhere explained: While each State at the Constitutional Convention surrendered its immunity from suit by sister States, “it would be absurd to suggest that the tribes”—at a conference “to which they were not even parties”—similarly ceded their immunity against state-initiated suits. Blatchford v. Native Village of Noatak, 501 U. S. 775, 782 (1991).

 

In Justice Sotomayor’s concurring opinion— For tribal enterprise operations (ie. Gaming or otherwise)cannot be understood as mere profit-making ventures that are wholly separate from the Tribes’ core governmental functions. A key goal of the Federal Government is to render Tribes more self-sufficient, and better positioned to fund their own sovereign functions, rather than relying on federal funding. Tribalbusiness operations are critical to the goals of tribal self-sufficiency because such enterprises in some cases “may be the only means by which a tribe can raise revenues,” Struve, 36 Ariz. St. L. J., at 169

 

In Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 118 S. Ct. 1700, 140 L.Ed.2d 981 (1998), Justice Ginsberg, in her dissent, held for the first time that tribal sovereign immunityextends to suits arising out of an Indian tribe’s off-reservation commercial activity. And more recently,Cayuga Indian Nation of New York v. Seneca County, 12-3723, U.S.C.A. 2nd Cir., July 31, 2014 which held as follows:

 

In Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014), Supreme Court once again heldthat tribes retain, as “‘a necessary corollary to Indian sovereignty and self-governance,’” a common lawimmunity from suit. Id. at 2030 (quoting Three Affiliated Tribes of Fort Berthold Reservation v. World Eng’g, P.C., 476 U.S. 877, 890 (1986)). Under this “settled law,” id. at 2030–31 (quoting Kiowa Tribe ofOkla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998)), courts must “dismiss any suit against a tribeabsent congressional authorization (or a waiver),” id. at 2031. This treatment of tribal sovereignimmunity from suit is an avowedly “broad principle,” id. at 2031, and the Supreme Court (like this Court)has “thought it improper suddenly to start carving out exceptions” to that immunity, opting instead to“defer” to the plenary power of Congress to define and otherwise abrogate tribal sovereign immunityfrom suit, id. (quoting Kiowa, 523 U.S. at 758).

 

Therefore, we decline, as has the Supreme Court, to read a “commercial activity” exception into thedoctrine of tribal sovereign immunity from suit, see id.; Kiowa, 523 U.S. at 758, and we decline to draw the novel distinctions—such as a distinction between in rem and in personam proceedings—that SenecaCounty has urged us to adopt, see Bay Mills, 134 S. Ct. at 2031; see also The Siren, 74 U.S. 152, 154 (1868) (“There is no distinction between suits against the government directly, and suits against itsproperty.”).

 

Additional controlling law and doctrines

 

NCNTC, in accordance with Indian Self Determination Act, also supports, adopts and enforces the Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295 U.N. Doc. A/Res/61/295 (Sept. 13, 2007 with United States signing Agreement on Dec. 16, 2010 at White House Tribal Nations Conference) Web location for this UN Document see as follows — [http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf]. Further, NTC supports and adopts the 9/18/2001 White House Commission on Complementary and Alternative Medicine — Interim Progress Report. http://www.whccamp.hhs.gov/news/interimprogressreport/html (link may or may not be functioning — copy to be placed on tribes’ or Ona website) Report finalized and incorporated with finalreport http://www.whccamp.hhs.gov/tc.html

 

Legal Foundation for Traditional Tribal Medicine activities known to Nottaway Tribal Community (NTC) started with ONAC and MS Choctaw Ghost Dancer Healing Arts Centers

 

All lodges or other designated healing programs will fall under the parent organization known as NAC-Sacred Healing Centers. As Indigenous Healthcare Practitioners are a declining breed, ONAC and MS Choctaw Ghost Dancers through its Sacred Healing Centers and tribal training program will endeavor to train, educate and promote this class of Healers. This program will also be developed into college level training to further the 1962 WHO/UN Alma Ata medical programs and as authorized in 2010 per UN Declaration of Rights of Indigenous Persons (UNDRIP).

 

25 USC Sect. 1680u. Traditional Health Care Practices.

 

Although the Secretary may promote traditional health care practices, consistent with the Service standards for the provision of health care, health promotion, and disease prevention under this chapter, the United States is not liable for any provision of traditional health care practices pursuant to this chapter that results in damage, injury, or death to a patient. Nothing in this subsection shall be construed to alterany liability or other obligation that the United States may otherwise have under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) or this chapter.

 

25 USC 13 (B)(4) Utilization and promotion of Traditional Indian Health Care and Treatment Practices.

 

This creates the opportunity for the Nottaway Tribal Community to create its own framework and regulation to provide for the tribe to validate and certify its own certification, registration or other type of designated Tribal Health Care Provider(s).

 

5 USC 6381 (2)(B), OPM definition of Health Care Provider to include Traditional Tribal HealingPractitioner.

 

NTC through tribal resolution SBM20J-13 dated 20 Jan 2013 creates several classes of practitioners which includes Certified Tribal Practitioner, Certified Tribal Healer, Certified Tribal Technician and Traditional Tribal Healer [previous designated by Tribal Recognition of Medicine Men & Women] (CTP, CTH, CTT, and TTH) plus a Tribal Registry for said classes of providers. Designation of “Student Healer”will also exist and that with respect to levels of training and education and the “Healer” designation is used for the lower-level spectrum of provider. This would be the level of placement for Touch for Health Providers, as well as, the basic level of counseling type individuals. Individuals who have prior certifications or licenses and through educational training &/or evaluation by the Nottaway Tribal Health Department, will be placed in an analogous Registry Class. For example, MD or DO will be CTP class; PsyD & MSW or other Certified Behavioral Counselor will be CTH class; and NMD/ND or DC will be CTP or CTH class, depending on training & certifications. A trained medical technician like an Orthopedic Technician, Surgical Technician or Emergency Medical Technician will be placed in the analogous technician category and all categories will also state a sub-type designation to identify the type of practitioner, healer or technician. All categories are now under Crow Nation’s First Nation Medical Board per banded regulation and operates as noted above along with adding class of Student Tribal Healers.

 

25 USC 18 § 1616 (b)(6) – To promote traditional health care practices of the Indian Tribes.

 

25 USC 18 § 1621 (a)(4)(D) – training of Traditional Indian Practitioners.

 

Please note, while the generic tribal term of Medicine Man or Woman may be recognizable by the general public it must be noted that there are different meanings and differences between tribal practitioners with all tribes. Medicine Men practice at all levels from the lowest to the full spectrum as allowed by tribal law and tradition. Accordingly, our program, through tribal law, creates a program and registry for those individuals which will be recognized at their appropriate levels of care that they can provide. Each NAC lodge or other entity registered/affiliated with the NACs will be held responsible and accountable for ensuring that all Nottaway Registered health care providers and individuals are involved in approved training programs plus follow ALL ethical rules, protocols and guidelines of both Crow Nation’s First Nation Medical Board and Nottaway’s Tribal Health Department.

 

NOTE: Since the beginning of this program in 2015, state medical boards have attempted to levy complaints against tribal practitioners as violating state laws with no success.  If you practice in compliance with all tribal laws and regulations, the state boards have NO jurisdiction.