Recent Comments

Sovereign Impunity

In my classes I always try (when appropriate) to get my students to look at the past fairly, honestly, and then draw reasonable connections with the present day. Our history with Indian tribes is well-documented and I will not wear that particular hairshirt here. So what does our abysmal treatment of Indians in the 1800s and early 20th century have to do with the poor conditions on many reservations today? I wouldn’t know how to even begin to quantify that but I can say with certainty — not a lot anymore. To paraphrase Fleetwood Mac — yesterday’s mostly gone. Like a lot of poorly governed areas… many Indian tribes are living on (sometimes literally) goldmines of minerals, tourist locales, etc. There are many exceptions no doubt. Good leadership is the key which, in a constitutional republic, always goes back to the voters as the party bearing responsibility.

Another point I try to get across to my students in my law classes is the importance of our courts operating objectively and pursuant to the words of whatever document they are trying to interpret — be it a statute, the Constitution, or a contract. Failure to do so leads to instability resulting in all manner of hardship. Of course, none of us would have to worry about courts if, in contracts especially, people honored their word — kept their contracts.

All of that then leads me to this interesting story by Terry Anderson in The Hoover Institution Journal on the Skywalk attraction at The Grand Canyon and an ongoing issue with the tribe and the developer over contracts, property rights, and Indian sovereignty:

The Grand Canyon is a “crown jewel” in our national park system, one on which the Hualapai Indian tribe thought it might capitalize. To do so, it contracted with Las Vegas developer, David Jin, to invest nearly $30 million to build a tourist attraction called the “Skywalk.” The horseshoe shaped, crystal-clear, glass walkway jutting 70 feet out from the rim of the Grand Canyon opened in 2007. Since then, 1.4 million visitors have paid $30 to don booties, walk into space, and look 4,000 feet straight down to the Colorado River below.

With revenues worth an estimated $100 million over the next two decades, this project could help lift 2,100 tribal members out of poverty, but a legal dispute may have killed the goose that could lay golden eggs. Worse yet, this could stifle investment across Indian Country.

The tribe alleged that Jin failed to finish the visitor center and used its sovereign right of eminent domain to seize the property. Jin, on the other hand, said that the tribe failed to provide promised utilities and failed to pay him his share of ticket revenues. He contends that the tribe waived sovereign immunity, thus negating its authority to exercise eminent domain.

On February 11, 2013, U.S. District Judge David Campbell ruled in favor of Jin saying that the tribe had “clearly waived its sovereign immunity” and that its legal arguments were “odd,” “nonsensical,” and “wholly unconvincing.”

Rather than accept the decision or pursue normal appeals processes, the tribal council tried an end run to avoid the $28.6 million judgment against the tribe. On March 4, Hualapai leaders sought Chapter 11 bankruptcy protection “to prevent further collection efforts” by Jin. They say the original company that contracted with Jin, Sa’ Nyu Wa, was shutdown and the assets transferred to the Grand Canyon Development Corporation. Because the corporation is a wholly owned tribal enterprise, they contend it is protected by sovereign immunity. Even Hualapai tribal court judge Mark Tratos sees this as “a shell game, plain and simple.”

Some members of the tribe recognize that the reputation effects of this decision go far beyond the U.S. District Court settlement. Louise Benson, who was chairwoman of the tribe when the Skywalk contract was signed, said current tribal leaders are “giving the Hualapai a terrible reputation that will injure the tribe for years.” She added, “All over Indian country, I think this is bad.”

History , as taught these days by many, teaches how we treated the Indians as less than human. How do they compensate for that? By teaching Romantic notions of the noble Other and painting them also as inhuman — impossibly noble and pure. Whadda ya know? The truth is in the middle. Indians are people too. And as with all people… folly, dishonesty, and poor leadership leads to poverty, failure, and recrimination. That is the human condition — not the lot of any one people group.

More at the link.

12 comments to Sovereign Impunity

  • Daniel Crandall

    Nothing to add to that last paragraph. Perfectly put, Floyd.

  • JimmyC

    I liked how Ken Burns’ “Into The West” made that same point repeatedly: that Indians were never inhuman savages, nor were they pure as the driven snow, but just human beings, as complicated and flawed as everybody else. This goes right back to one of the basic philosophical differences between the modern Left and the modern Right: are we going to live in a colorblind society and see everyone as individuals, or put them into a box based on their race and reduce them to our preconceived notions about that race? Ball’s in your court, lefties.

  • -fritz-

    I think the Indian nations should join Jesse Jackson’s Rainbow Push and then see how much they will suffer!

  • Rufus

    We humans seem to have a natural tendency to want to see ourselves as members of a “tribe.” Like all attributes, some folks have this tendency more than others. We kid Floyd, Outlaw and Tracy, but they do think of themselves as “Texans,” and that is important to them. Floyd still considers himself an outsider in California. And all of us have similar allegiances and associations. No matter how long he remains in Florida Matt Helm will always be a Bostonian.

    So, I understand that, but it is very hard for me to understand why people force themselves into allegiances that are harmful. Urban gangs are a good example. As a lifestyle it’s a loser. The statistics are abysmal. Yet, many kids insist on devoting their lives (literally) to that allegiance with their neighborhood, no matter how devastating it may be. We also see this on the opposite side of the spectrum, in our rural areas. We’re all familiar with towns that a large employer vacated many years prior, yet a lot of folks stay put, refusing to accept the change and sacrificing their future on a memory of the past.

    On my mother’s side I am descended from people who had awful lives in Poland. The Prussians and Communists being the most recent in a string of abusers who imposed their will on my ancestors. I am very glad I have not had to suffer as my ancestors did, and I’m very glad they gave up their allegiances to their homeland in hopes that their descendants would have more opportunity. I can understand people of Native American decent being bitter about past abuses. It bothers me that my ancestors were conscripted and dragged from their homes and forced to labor for regimes they didn’t support. But all such abuses bother me. The holocaust enrages me, even though I’m not Jewish. Saddam’s torturing of the Kurds enrages me, but I am not Kurdish. And, although I “am” Polish, I did not personally suffer at the hands of the Prussian soldier who kidnapped my great grandfather. I did not live under Nazi rule in the Warsaw ghetto, like my Aunt. I didn’t live a dismal life and die in a Communist apartment bloc like my grandfather’s sister.

    Perhaps this makes me ignorant, or uncaring, but I have no compassion for someone who chooses to live a life of squalor when all that is required to end their suffering is to leave a reservation and embrace the world around them.

  • Dr. Schplatt

    A shame really. The skywalk is pretty cool.

  • kishke

    The Who-alapai? Is this another one of these tribes of convenience?

  • WHAT!
    No Jean Jacques Rousseau noble savage?

    I’m shocked!


    PS – and when the Spaniards arrived, the native populous was largely in the last Stone Age. Their behaviors – with magic, superstition and tradition were hardly civilized. But then, neither were the Spaniards…

Leave a Reply




You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>