An anonymous caller left me a message expressing his displeasure
with a North Kitsap School District board member’s comments on Nov.
8 regarding the “culturally relevant” language in one part and the
“sovereign immunity” clause in the contract between the district,
Olympic College and the Suquamish Tribe.
The contract deals with the Suquamish Tribe’s Early College for
Native Youth program, college-level cultural curriculum for high
school kids. Patty Page, North Kitsap superintendent, told the
board the program has been in place for years.
Within the contract is a subsection titled, “No waiver of
sovereign immunity.” It reads:
The parties acknowledge that the Suquamish Tribe is a
sovereign nation. Nothing in this Agreement shall constitute or
shall be construed as a waiver of the Tribe’s sovereign
immunity.
You can see the Nov. 8 conversation about the program on video on the school district’s
site. The contract conversation begins at 57:42.
Henden starts his questions at 63:45.
Bill Webb was the first board member to express concern with the
contract. He said he wouldn’t vote against it, but wanted an easier
escape clause in future contracts if something happened the
district didn’t like. The contract then proposed would only allow
escape if all parties agreed. Webb wanted a 30-day notice clause.
The contract board members will see Thursday allows for any of the
three parties to exit with 90 days notice.
Henden then went deeper into his “sovereign nation” dispute at
69:20:
“I understand that they’re federally recognized. I
understand, at least in part, the issue of native abuse over the
years. I won’t say I understand it totally, by any means, but at
least in part I understand some of their issues. I have a problem
understanding any kind of English where those words go together and
means what we have. I don’t see them as a sovereign nation. Norway
is a sovereign nation. And I don’t see why we need to agree to that
so that we can have a contract with them. If they are a sovereign
nation they are self sufficient, they’re self funded, they’re self
protected and there are some things that go with it, at least in my
mind. If somebody can give me something other than that in the
dictionary that shows putting those two words together means what
we have, I’d be glad to see it.”
As it was, Henden said, he could not agree to the contract
stipulating that the Tribe was a sovereign nation. “I’m not going
to willingly do that,” he said. He also took issue with the part of
the contract saying it was negotiated on tribal land. Webb agreed.
That part of the contract has been removed.
Page reiterated that the federal government recognizes the tribe
as a sovereign nation. Henden said he still couldn’t put together
those two words, “sovereign” and “nation.” He dismissed the clause
as “politics.”
Ken Ames moved to table the motion. Page said it would be better
to oppose it, then give her directions to fix the problems. The
board unanimously voted against the contract.
Dan Weedin, board president, said he didn’t think the “sovereign
immunity” inclusion should be a deal breaker. Webb said he’d at
least like to know why the clause was in the contract. Ames said he
supported Henden’s question, or, like Webb, at least wanted an
answer as to why it needed to be in the contract.
Henden then said the statement is not true, that it would be
against his morals to agree to something he thought wasn’t
true.
While Henden’s questions, as he stated them, are offensive to
many, perhaps rightly so, the sovereign immunity question has been
tough to answer for the U.S. Supreme Court and at
least one president.
In one of the final exchanges on the topic Weedin points out
what Page did, that the federal government is the entity defining
“sovereign nation” as it relates to the tribes. Henden gave that no
credibility, offering federal deficits as his example of a federal
lack of judgment.
Specifically, it’s the federal courts that provide the legal
definitions. In the American Bar piece referenced above, it cites
two different meanings that have influenced the courts over the
years.
“There are two competing theories of tribal sovereignty:
first, the tribes have inherent powers of sovereignty that predate
the “discovery” of America by Columbus; and second, the tribes have
only those attributes of sovereignty that Congress gives
them.
“Over the years, the Court has relied on one or the other of
these theories in deciding tribal sovereignty cases. It is
important to note that whichever theory the Court has favored in a
given case has determined to a large extent what powers the tribes
have and what protections they receive against federal and state
government encroachment.”
The piece takes the stand that it is troubling how much
sovereignty has been taken from the tribes and makes clear how the
notion works on the reservations. Tribes, according to the article,
are sovereign by the grace of Congress. The courts give the federal
government the power to protect tribes from state intrusion, but
also the power to define just how sovereign the tribes are. The
article points to Supreme Court cases defining whether tribes can
prosecute certain crimes and how they can enforce laws against
non-tribal members living on tribal land.
Since Henden wanted someone to find a dictionary that offers a
definition expressing what exists, there is this from something online called both
the “legal dictionary” and the “free dictionary.”
“Tribal sovereignty refers to the fact that each tribe has
the inherent right to govern itself.”
What else governs itself? I do. I’m sovereign in the sense that
I can eat a peanut M&M and Josh Farley can’t stop me. But if I
tried to get a Big Gulp in New York City, the city says I can’t. Am
I any less sovereign because of it? Well, yes, I am. Washington is
sovereign and can demand that insurers pay for pregnancy coverage
and Arizona or Texas can’t do a thing about it. The federal
government can, but does that mean Washington isn’t, at least to
some degree, sovereign?
That seems to be the answer. Being sovereign, or free, doesn’t
mean I can do whatever I want. The courts more or less acknowledge
that national sovereignty for the tribes is not like national
sovereignty for Canada. Try as we might, our Supreme Court can’t
force Canadians to say “about” correctly or the British to stop
putting the letter “u” in words like “color,” but it can tell the
tribes they can’t put non-tribal members on trial.
Even nations are bound by international law. Granted, it’s at a
nation’s consent to be so obligated. But the United States
acknowledges “international law,” and saying the U.S. isn’t
sovereign will get you a punch in the snot locker in some
parts.
George W. Bush acknowledged international law when he attempted
to justify to the United Nations his intent to launch the war in
Iraq. “For centuries, international law recognized that nations
need not suffer an attack before they can lawfully take action to
defend themselves against forces that present an imminent danger of
attack,” Bush said. So the United States, a sovereign nation, said
it was within its rights under international law, an unspoken
admission that it is bound by it.
Finally, let’s look inside the big red Merriam-Webster’s
Collegiate Dictionary on my desk and look up “sovereign,”
“sovereignty” and “nation.” There are definitions for the first two
that include lack of interference from any outside source, but when
you get to definitions like “enjoying autonomy,” it doesn’t take
much to understand that autonomy is not necessarily absolute. The
word “nation” includes the definition “a tribe or federation of
tribes (as of American Indians).” Norway would not fit that
definition, but it is still a nation.
We’ll see Thursday if that satisfies Henden. Even if it doesn’t,
it will probably satisfy the rest of the board.
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