Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 3, 1 March 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

* By Paul Alexander Washington, D.C. Counsel for OHA

Sovereignty — what does it mean? Part Two — who has jurisdiction?

The February eolumn began a series exploring aspects of sovereignty as it relates to Native Hawaiians. Sovereignty refers to governmental power. In the context of Native people, certainly in the legal system of the United States, sovereignty generally means "dependent domestic sovereignty." This implies that while the Native governments have power over their territories and people they do not have the power to engage in international relations. Coupled with this dependency status is the idea of the trust responsibility of the United States to manage and protect the resources of Native governments. Domestic governments usually have the power to enact laws that ean: guide conduct, relationships, and management of real property; establish courts and other enforcement systems for such laws; tax or otherwise raise revenues; regulate family relationships (marriage, divorce, child custody, adoption, inheritance, etc.); regulate the use of property (zoning, building standards, environmental standards, etc.); regulate hunting, fishing. or gathering; and establish the provisions of education and social services.

An important legal aspect of sovereignty isjurisdiction. Jurisdiction refers to the physical area the govemment may properly exercise power over. This is territorial jurisdiction. The govemment also has power over specific behavior or conduct. This is cal|pd subject matter jurisdiction. Territorial junsdiction means that a govemment has jurisdiction over the lands that are within its territory. That is a fairly simple concept where a Native land-base is intact and its boundaries are recognized. In actuality, Native land bases are not usually intact and significant pattems of mixed ownership prevail. Currently, on Indian reservations, there is a significant question as to whether or not a tribe has jurisdiction over lands within its recognized boundaries when that land is not held in trust by the United States and not owned by a Native government or person. Government powers of jurisdiction are not usually recognized outside of their territories (extra-territorial jurisdiction.) For example, if as a citizen of the United States you commit a crime in France, then France hasjurisdiction over the crime unless there is an agreement (treaty) between France and the United States to the contrary. A significant territorial issue arises with Native governments when problems or questions eome up about traditional sacred areas that are outside Native governments' territories. The Native go-

vernments do not have jurisdiction to regulate or protect their sacred areas when the areas are outside their territories. Subject matter jurisdiction is both civil and criminal jurisdiction. Criminal matters are wrongs against the public whieh are punishable by imprisonment and /or fines. Civil jurisdiction relates to private or individual relationships. A matter ean have both criminal and civil aspects. For example: an automobile accident ean involve a civil dispute over who is responsible for the damages caused, and also involve a criminal prosecution for the violation of specific criminal laws relating to driving. The United States Supreme Court has decided that Indian Tribes do not have jurisdiction over non-Indians who commit crimes within Indian tribe territories. The Supreme Court found that such tribal jurisdiction was inconsistent with tribal dependency status. The Court reached this decision even though the non-Indians in question were disrupting a tribal celebration, the danger was imminent, and nonIndian law enforcement agencies had declined a tribal request for assistance. Conflict over jurisdiction is a fact of life for Indian tribes. As of today, states, their subdivisions (counties, cities, towns etc.), as well as the

federa! government, all have some jurisdiction within the reservations. Although eaeh jurisdictional question is different and extremely technical (depending on an interplay of federal-Indian law principles, specific federal statutes, and factual matters) there are several generalities that are relevant. States aggressively assert exclusive and/or concurrent (state and tribe) jurisdiction over Native people and their territories. This as-sertion-of-jurisdiction is present even when states have not historically provided the services that go with the jurisdictional authority. Perhaps the most important generalization applicab!e to the jurisdiction of Native governments is the power of the United States to unilaterally alter the jurisdiction of Indian tribes. The United States through a series of jurisdictional laws whieh were upheld by the courts has limited the tribal jurisdiction and provided for both its own federal jurisdiction and the jurisdiction of states and their subdivisions, within the boundaries of Indian reservations. When Native Hawaiians determine what model of sovereignty is appropriate, significant attention will be required on the scope and type of jurisdiction that that sovereign entity (or entities) will have, and what jurisdiction will be held by the United States, and the State of Hawai'i and its subdivisions over the Hawaiian sovereign entity.