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.
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.