DIGITIZING TRIBAL LAW: HOW CODIFICATION PROJECTS SUCH AS TRIBAL LAW ONLINE COULD GIVE NEW RISE TO AMERICAN INDIAN SOVEREIGNTY.

• Author: Franchek, Jacob

"Well, neither could ... anybody, right? I mean if anybody could find it, you could. It's because it's not published anywhere, right? "

--Chief Justice John Roberts, in response to being told by an attorney arguing for the Cheyenne River Sioux Tribe that his office had been unable to discover applicable Cheyenne River Sioux precedent. (1)

INTRODUCTION

"Today, in the United States, we have three types of sovereign entities--the Federal government, the States, and the Indian tribes." (2) The oft-forgotten American Indian nations have inherent sovereignty to govern themselves, by virtue of their existing as cultural and political entities prior to the founding of the United States. (3) Federally recognized American Indian nations thus have intrinsic authority and jurisdiction over their internal affairs; tribal (4) governments perform executive, judicial, and legislative functions. (5)

Despite this fact, most of the federally recognized tribes in the United States have not formally published or codified their laws. (6) What is codified is usually out of date and almost never digitized or published in an online forum. (7) The online databases that do contain tribal laws are "incomplete and are often plagued by broken links, outdated laws, unsearchable documents, and unreadable images." (8) Accessing these laws and applying them in tribal courts is often very difficult, even for attorneys working for American Indian nations with access to whatever databases exist. (9)

The Pine Ridge Reservation, located in South Dakota, provides an all-too-typical example. The Reservation, which is home to the Oglala Sioux Tribe, last formally codified its laws in 1996. (10) Thus, hundreds of enacted ordinances and resolutions that have been passed by the Oglala Sioux Tribal Council have not been included in this codification, which is thus decades out of date." While there is an online database that has collected the ordinances and resolutions passed by the Oglala Sioux Tribal Council since then, this database is organized solely by date and ordinance number and consists wholly of PDF images that cannot be word-searched. (12) Only individuals with permission from the Oglala Sioux Tribe have access to this database, (13) and there is no reporter systematically publishing the decisions made by Oglala courts online. (14)

Any lawyer wishing to practice law in Pine Ridge has an immensely difficult time tracking down the law. Imagine that a client has a civil dispute with either the Oglala Sioux Tribe itself or one of its members. To discover applicable law, the lawyer will need to chase down a copy of the Law and Order Code of the Oglala Sioux Tribe. However, that law is nearly two decades out of date. To adequately search for applicable ordinances and resolutions, the lawyer will have to search through the Tribe's online database to see if there is any applicable law that has modified the Law and Order Code. Keep in mind that taking this step is predicated on the lawyer having access to the database, which can only be obtained with the Tribe's permission. There is no way to chase down case law short of visiting the Oglala courts and leafing through their slip opinions one by one. (15)

Also understand that it is entirely possible (even likely) that the lawyer will find two separate laws that overlap or conflict with one another. (16) This is because the Tribal Council and its attorneys have the same difficulties as the lawyer in discovering existing tribal law, and may pass a new law without being able to reasonably locate laws that may already apply. (17)

The extreme unavailability of tribal law on the Pine Ridge Reservation and the many reservations like it has made it prohibitively expensive and time-intensive to practice law and represent parties in Oglala courts. It has also made it difficult to attract business to the Reservation, since businesses worry that discovering applicable law that could apply to future disputes may be very difficult and costly. (18) Perhaps worst of all, the state of the law in Indian nations has made it more difficult for these nations to resolve the issues that they face. (19)

Luckily, the digital age may provide ways that could help American Indian nations overcome these problems. The Center for Empirical Research in the Law (CERL), an institution operating at the Washington University School of Law, partnered with the Oglala Sioux Tribe in the summer of 2015 to "bring together all the laws and court decisions of the Oglala Sioux Tribe and make them easily accessible and highly visible to all Tribal members and to the public on a searchable online database," which they have called Tribal Law Online. (20) CERL aims to bring this database up to date and make it available in 2017. (21) The Oglala Sioux Tribe will formally adopt the codification when it has been completed, and will be able to supplement and add to it as new laws are passed. (22)

Tribal Law Online could help promote the self-governance of the Oglala Sioux Tribe in many obvious ways. For one, it will increase the ability of Oglala citizens to see and evaluate their current laws, and make it easier for them to communicate their concerns and needs to the Oglala Sioux Tribal Council. (23) It will also make it much easier to practice law on the Reservation, and help the Oglala Sioux Courts when issuing new precedent. (24) It will also likely make doing business on the Reservation a far more attractive prospect. (25)

However, there are even greater possible benefits to the sovereignty of American Indian nations that this project could serve, and some potential pitfalls that need to be avoided. This Note focuses on less-visible but potentially critical ways that Tribal Law Online and undertakings like it could advance American Indian sovereignty in the United States. It also addresses potential criticisms.

Part I of this Note will focus on the ways that Tribal Law Online could be beneficial to American Indian sovereignty. It discusses how codification and digitization will improve Supreme Court recognition of American Indian sovereignty, benefit American Indian nations economically, help them obtain more favorable legislation from Congress, and aid American Indians in shaping their governments to more accurately reflect their cultures. Part II will address potential criticisms of codification and digitization, including fears that allowing nonmembers to codify Oglala law could cause the laws to less accurately reflect Oglala interests, that codification itself could involve the imposition of Anglo-American jurisprudential norms, and that codification could harm existing Oglala customary law. This Note will ultimately conclude that Tribal Law Online and projects like it could potentially advance American Indian sovereignty to a degree heretofore unseen since the founding of the United States.

1. HOW TRIBAL LAW ONLINE COULD AID THE CAUSE OF AMERICAN INDIAN SOVEREIGNTY

   There are numerous ways that Tribal Law Online could aid the cause of American Indian sovereignty in the United States should other nations join in on it or other similar projects. This Part will focus on just a few of those potential benefits, including how it could (A) increase Supreme Court respect for American Indian sovereignty, (B) benefit the economies of American Indian nations, (C) gain increased trust from Congress and obtain increasingly favorable applications of legislative power, and (D) help the culture of individual Nations play a larger role in shaping tribal laws and government.

   1. Improving Supreme Court Recognition of American Indian Sovereignty

      It is no secret that American Indian interests have been disfavored by the U.S. Supreme Court in recent years. (26) Congress's respect for American Indian sovereignty during the "Self Determination Era" (27) has been frequently frustrated by the Supreme Court, which has evinced a willingness to abrogate American Indian sovereignty since 1986. (28) One line of cases clearly displays the Supreme Court's inclination towards abrogating protections that previous courts extended to American Indian nations: the Montana cases. (29) In this subpart, this Note will examine modern Supreme Court Montana decisions and discuss how they show serious distrust for American Indian legal institutions. It will then explain how the Tribal Law Online project could help to increase the respect of the Supreme Court for these institutions.

      The Montana line of cases concern the civil jurisdiction American Indian nations have over non-members for actions occurring within reservation borders. (30) Montana held that "Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands." (31) The Court also held that a tribe could extend civil jurisdiction over "the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases or other arrangements" and over "non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." (32) The Supreme Court thus determined that "absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation," subject to the two above exceptions. (33)

      Nevada v. Hicks drastically departed from previous Montana cases by using the Montana test to invalidate the jurisdiction of the Fallon Paiute-Shoshone Nation to adjudicate a tort that originated on land owned by a member. (34) In that case, a member of the Fallon Paiute-Shoshone Nation claimed that two Nevada state officials, while executing a search warrant, had damaged a mounted sheep head that he kept within his home. (35) He sued the two state officials in the Paiute-Shoshone Court for...