Tribal Legal Code Project: Tribal Legal Infrastructure for Housing and Community Development in Indian Country

Introduction

Indian nation leaders face unique challenges when they attempt to meet the needs of their people for housing and development of communities where that housing will be built. Aside from the challenges of planning and land development control law(1), Indian nations have a great deal more to address.

First, Indian nations have had to deal with complex issues concerning the nature of ownership of land in Indian country. Indian nations do not "own" their own land, just as individual Indians do not "own" their interests in an allotment. The United States of America holds the title to Indian reservations in trust for the "benefit" of the Indian nations which reside on them, and the United States holds the title to allotments in trust for the "benefit" of individual Indians and heirs. Indian land planners, therefore, must address the issue of federal approval for land use plans.

Second, today's Indian nations must still deal with the legacy of past federal Indian policy. As Professor Charles F. Wilkinson points out(2), the General Allotment Act of 1887 created a climate of conflict and confusion which lies at the heart of contemporary legal conflicts in Indian Country. That is, the General Allotment Act of 1887 (the "Dawes Act") provided for the breakup of Indian reservations. Under the Act, individual Indian families received allotments of land for their own use. Following a period of "proving up" the land (i.e. showing that the family knew how to farm and use the land), the family head would receive a fee patent(3) and the land would pass under state jurisdiction. Remaining "surplus" land was opened for purchase or homesteading by non-Indians. Despite the fact that Indian reservations were created by treaty, statute, or presidential executive order for the "exclusive" use of the Indian Nations upon a given reservation, this massive breakup of America's Indian reservation led to "checker boarding" and conflict. Today, Indian nation land planners must answer several questions before they can successfully begin the planning process: What does my reservation look like when it comes to land ownership? There are land ownership maps for most reservations which show the nature of the owner (i.e. Indian lands, private lands, and lands held by the state, the Bureau of Land Management, the U.S. Forest Service, etc.). The different-colored squares (of one square mile per square) show the checkerboard ownership pattern. Do I have jurisdiction over a given piece of land? Is it within the reservation or outside? Can I regulate land where there are pockets of non-Indian settlement or towns? Do I have jurisdiction to regulate non-Indians?

Third, land use planning requires a great deal of time and attention. Given the nature of "ownership" of reservation and allotted lands, land planners need to deal with federal approvals for given land uses, environmental and archaeological assessments and clearances, and many federal regulations. Indian Country land use planners also must take into account possible resistance by non-Indian landowners within the reservation, conflicting state laws and jurisdictional demands, and even the objections of individual tribal members with varying kinds of land use rights or expectations.

This introduction addresses the basics of a legal infrastructure for housing and community development in Indian Country. It recognizes the fact that there are over 500 Indian tribes, reservations and communities within the United States. There are Indian nations with treaties with the United States and those without a treaty. Some Indian nations are large, such as the Navajo Nation with over 25,000 square miles of land, and others can be as small as one-quarter of an acre. Some Indian nations with large populations, such as the Cherokee Nation of Oklahoma, do not have a reservation area or distinct land base. Some Indian nations are buying lands for casinos, sports complexes, or other development. While there are vast legal, cultural, and historical differences among America's many Indian nations, there are many considerations in common.

This introduction will discuss (1) legal foundations and infrastructure, (2) code development process, and (3) some practical considerations of the process of developing a legal infrastructure for housing and community development.

Legal Foundations and Infrastructure

Infrastructure

The word "infrastructure" means nothing more than a basic framework. It is like the frame of a house or a skeleton. "Legal" refers to the basic laws needed to begin to undertake housing and community development. The basic laws are (1) federal, (2) the laws of the given Indian nation, and (3) state laws (in some areas).

Federal Law

The sources of the applicable federal law are the United States Constitution, treaties with Indian nations, statutes regarding "Indians" in Title 25 of the United States Code, other statutes which specifically apply to Indians or their nations, "laws of general application," federal Indian common law, and the regulations of various federal agencies which apply to the development process(4).

The two most important provisions of the United States Constitution affecting Indians are the "Indian Commerce Clause" and the "Treaty clause." The Indian Commerce Clause is in Article I, Section 8 of the Constitution, and it gives Congress the exclusive power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The President can make Treaties with the "advice and consent" of two-thirds of the Senate under Article II, Section 2, and a treaty is "the supreme Law of the Land" under Article VI. Planners should first look to their Indian nation's treaty (if there is one) because the United States recently ruled that where an Indian nation does not have inherent (see below) jurisdiction to regulate or exercise court jurisdiction over a given person or subject, that jurisdiction or power can come from either an Indian treaty or a statute passed by Congress(5).

The "reservation" comes from the idea that when Indian nations make treaties with the United States, they "reserve" certain lands for their own exclusive use. They also "reserve" governmental powers. When a planner wishes to do an inventory or audit(6) of the law which applies to the given plan, the planner should always start with the treaty.

Treaties are unusual documents because they are often old(7) and very broad in their language. There are special rules for reading treaties:

• Ambiguous expressions [in the treaty] must be resolved in favor of the Indian parties concerned(8).
• Indian treaties must be interpreted, as the Indians themselves would have understood them(9).
• Indian treaties must be liberally construed in favor of the Indians(10).

Many treaties set aside certain lands for the "exclusive" use of named Indian nations and that is the source for the general authority of Indian nations to exclude nonmembers from their lands. Planners should look at how the courts have read that language in a given treaty and in Indian treaties generally to support the power for land use controls needed in planning.

Planners should then consider the obligations of the United States under the U.S. Constitution. For example, federal case law has developed a special "trust responsibility" for the United States Government toward Indians and their nations. This term is confusing, because we may think of a "trust" as being someone holding something for the use of another, as the United States holds title to Indian lands for the use of given Indians or Indian nations. The "trust responsibility" also speaks to a long-standing historical relationship whereby Indian nations agreed to come under the United States and to surrender lands to it in exchange for promises to protect the Indian nation and its people. The Government of the United States is also required to observe Indian nation rights under the Due Process Clause of the Fifth Amendment to the Constitution. That Clause requires the U.S. Government to observe certain standards of fairness in making laws regarding Indians and in addressing Indian rights and freedoms.

There are many federal statutes that apply to Indians and Indian nations(11). There are statutes that apply generally to Indians or their nations, and statutes that apply only to a given Indian nation(12). Prior to the adoption of the U.S. Constitution, the Continental Congress began enacting a series of Indian "trade and intercourse acts" to regulate land purchases, trade, and other contacts with Indian nations. The trade and intercourse legislation culminated in the Act of June 30, 1834, which summed up basic Indian legislation. Today, 25 U.S.C. Sec. 177 from the 1834 statute deals with purchases, grants, leases and other conveyances of land from Indian nations. As mentioned above, Congress passed the General Allotment Act in 1887 to break up Indian reservations into individual Indian and non-Indian ownership. By 1934, when the Indian Reorganization Act was passed, Congress saw that allotment was a failure and stopped the allotment process.(13)

The general responsibility of the United States to provide governmental services to Indians is found in the Snyder Act of 1921 (25 U.S.C. Secs. 13, 42). This law assumed that the United States has a general responsibility to Indians for health, law enforcement, education, etc. In 1975, Congress passed the Indian Self-Determination and Education Assistance Act (25 U.S.C. Sec. 450 et seq.) to change the delivery of governmental services. That is, under the Self-Determination Act, the Departments of Interior and Health and Social Services make grants "638 law" (so called because it was initially enacted as Public Law 93-638) is essential to Indian government because it provides the base funds for most governmental operations.

The Indian Reorganization Act of 1934 is important because it recognizes the legitimacy of Indian governments. Many Indian governments are organized under the Act and many are not. What is the difference? Section 16 of the Act recognizes the "existing powers" of Indian nations and then goes on to provide that a given Indian nation can adopt a constitution an bylaws under the Act upon a vote of enrolled members. Governments such as that of the Navajo Nation, which does not have a constitution or bylaws, are recognized under the "existing powers" language of Section 16. "Existing powers" are "inherent" powers, or those which Indian nations have always had. In addition, Congress may enact laws to provide that Indian nations can have other powers.

Some examples of such laws include the important Indian Land Consolidation Act of 1983 (25 U.S.C. Sec. 2201 et seq.). It addresses the problem of checker boarding by allowing Indian nations to adopt comprehensive plans to buy, sell, or trade land to deal with scattered ownership patterns and allotments where individuals may own as little as a 1/5,000 interest in a piece of allotted land.

There are other statutes that deal with community development, education, trust services, real estate, forestry, wildlife and parks, water resources, transportation and land and water claims(14). These should be consulted to see how they apply to the given Indian nation's development priorities. One statute which is particularly relevant to housing development is the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. Sec. 4101 et seq.)(15). It is a comprehensive Indian housing law that permits eligible Indian nations to develop Indian housing plans and receive block grants for housing initiatives. The Act recognizes the fact that we cannot simply set aside places for houses and build them. We must think of total infrastructure. That is, housing is not simply building a house. It involves things such as where you want your houses; water, electricity, and sewage; and things such as roads, transportation, trash disposal, and services for people who live in those houses. There is something much larger and very important - implementation of your dream for how your community will grow and develop and what the lives of the people of the community will be in the future. As one Indian health planner put it, "a plan is a dream with deadlines."

Planners may find statutes regarding Indians in other parts of the United States Code besides Title 25 ("Indians"). In recent years, federal agencies outside the Bureau of Indian Affairs and Interior or the Department of Housing and Urban Development have initiated Indian programs, either under new legislation or the application of existing legislation to Indian Country. Those programs are also part of your inventory or legal audit when you commence planning activities.

Planners should be aware that there are conflicts over the "laws of general application" doctrine. That is, when Congress passes a law, to whom does it apply? For example, when Congress enacted the U.S. Civil Rights Act of 1964, which deals with discrimination, it specifically exempted Indian nations under the definition of "employer" in Title VII. What happens if Congress does not mention Indian nations in a given law? What about major federal employment statutes, such as the Fair Labor Standards Act? The law in this area is not settled. There are some decisions which state that (particularly where an Indian nation has a treaty with the United States) general statutes do apply to Indian nations. However, there are other case decisions that state that "laws of general application" passed by Congress do apply to Indian nations. Planners should be aware of this split in case decisions and be prepared to address a given federal statute. While some lawyers for Indian nations advise that resolutions, ordinances, or personnel policies should not acknowledge that certain federal laws apply, the better practice is to make certain that compliance is built into plans and policies.

There is a large body of American law which the American Bar Association calls "Indian Affairs Law." That is the federal law that applies to Indians. Aside from the constitutional provisions mentioned above (the Indian Commerce Clause and the treaty clause) and federal statutes, there is a large body of law made by the courts which is not bas upon the Constitution, treaties, or statutes. It is called "federal common law," and it is made up of decisions where the courts (most often the federal courts) say that Indian nations have or do not have certain powers and authority. For example, in the recent case of Strate v. A-1 Contractors (cited above) the U.S. Supreme Court said that Indian nations have limited court jurisdiction over non-Indians. The Court cited earlier decisions on the power to regulate non-Indians, and the conditions for the exercise of regulatory jurisdiction (essentially consent and basic public health, safety and welfare). These must be examined when an Indian nation intends to regulate activities on fee lands within a reservation or the activities of individuals who are not tribal members.

A statute passed by Congress is like a general plan. When Congress passes laws to be administered by an agency, it usually gives the agency the authority to make regulations or "rules." The Administrative Procedures Act requires agencies to publish notice of the intent to adopt a given set of regulations, and when they are adopted by an agency, they are law.

Indian Nation Law

Indian nation planners begin the planning process with a review of the treaty (if any) and applicable federal law and regulations. Then the planner turns to his or her own law to see if (1) existing law will support the desired planning activity or (2) there must be new tribal legislation to put a foundation in place for the desired activity.

Does the Indian nation have a constitution? Many have constitutions and bylaws under the Indian Reorganization Act of 1934. While many of the existing constitutions and bylaws are similar, there can be some differences. When reading an I.R.A. constitution and bylaws, you should look for the powers of the business committee or council to see if they support the activity you want to undertake. The constitution and bylaws should also be reviewed to see what kind of land rights members may have. Some constitutions provide for "selections" or "allotments" of tribal land to individual members, and in that situation, the individual rights of landholders will have to be taken into account in planning.

Section 15 of the Indian Reorganization Act of 1934 provided for federal tribal business corporations. Many Indian nations have them but rarely use them. The federal charters typically provide that the Indian nation that has a charter can engage in a wide variety of business activities. Many Indian nation leaders are aware of the federal corporation because when an Indian nation does business under a charter, it surrenders sovereign immunity to the extent of "assets pledged" to do business. Despite that, planners should consider whether the federal business corporation may be a desirable vehicle for development plans.

Indian nations differ in the way they make law. Most Indian nations enact laws in the form of "resolutions" or "ordinances." Those terms are usually used to refer to law and policy-making by corporations and municipalities. Some Indian nations enact "statutes," which are laws made by a legislature.

One of the difficulties in "finding" the laws of Indian nations is the way they are published. Many councils still pass ordinances but do not re-publish them in encyclopedia format (i.e. a "code" which has classifications of subjects). In that situation, a planner must carefully go through years of ordinances to see what laws have been passed and what old laws are still in effect. Other Indians nations collect their resolutions in codes of law. Two notable examples are the Navajo Nation, which uses a commercial publisher to publish its code, and the Cherokee Nation, which has West Publishing Company publish its code.

One of the major elements of developing a good infrastructure for housing and community development is the simple act of gathering all of the old resolutions and ordinances and publishing them in a way where anyone can know the law. That is very important to federal agencies, commercial lenders, and those who want to do business in Indian Country, because their lawyers want to know what the applicable law is.

Code Development Process

Visioning Policy and Law

 Ada Pecos Melton of the Jemez Pueblo speaks about "visioning" in the planning process. She makes the important point that if you are going to have a "vision" for your community to plan for the future, you must know a great deal about it in terms of geography, history, culture, and the wants and needs of the members of the community. However, even before that, you must take a look at the political decision-making process.

One of the problems in the field of planning and land use control law is that the many codes which fall under that classification can be complex, confusing, and have no meaning for the ordinary reader. When lawyers write such codes, many lawyers do not know this specialized area of law very well. There have been many developments in land use law in recent years, including discussions of whether existing codes are suitable for the future and recent court decisions on the power of any government to regulate land use. When specialists, such as environmentalists or planners, develop a code, they may not be aware of recent changes in the law or court cases that may have an impact on the code. Tribal leaders may not be aware of the technicalities and complexities of planning and land use law and they may not have the expertise to review a proposed code.

It is important to distinguish between "policy" and "law." Most Indian nations have councils or business committees as the political policy-making body that makes law. They are composed of leaders who are elected to office to do the business of the people. They are expected to make law and to exercise oversight over existing programs. The problem is, without knowledge of what it is the council or business committee is "seeing" when it exercises the oversight power, how can such a body make decisions?

Too often, a council will recognize a need and ask the tribal attorney to quickly draft a code to address that need. If the council says, "We are having problems with stray dogs, so we want a dog code," what does the attorney do? Most often the attorney will photocopy a state code or a municipal ordinance, retype it with the Indian nation's name, and present it to the council. The code, which is adopted, may not be realistic. It may provide for enforcement officers that the Indian nation cannot afford or call for fines that are unrealistic. Sometimes a council will look at a "model" code and cut out sections it does not like, only to find that the code has little meaning without the section that was cut. How can Indian leaders guide the process of code development so they know what is going on?

Indian nation councils and business committees make policy. That is, they decide the direction they feel is best for their nation. "Policy" is an act of identifying the problem you want to address, finding the choices which are available, listening to arguments about the better policy choice to make, and making decisions about the development of law and codes. "Law" means the actual law that the Indian nation chooses to adopt after the council or business committee makes its policy choices.

How do Indian nation leaders go about the process of making policy?

Visioning Revisited

In the past, a federal government grant notice would arrive in the mail, and after it sat on someone's desk for a while, someone would be selected to write a grant proposal a day or two before the grant deadline. That person would simply write a grant package without having time to talk with the people who will implement the program, mail it off, and wait. When the grant proposal was approved, the people who managed the grant would have to struggle with stacks of forms and regulations. The grant might involve a new housing project in an area where members of the community did not want a housing project or things such as roads, water, sewers, electricity or telephones were not considered.

The modern trend in federal grants is to require the community to develop a comprehensive plan to carry out a given project. One example of the new trend in federal grant law is the Native American Housing Assistance and Self-Determination Act of 1996, which requires extensive plans for housing which take into account things such as land use, utilities, roads, employment and shopping for residents, public safety, and education.

The visioning process begins with a map of the given Indian reservation. Tribal leaders should look at maps which show land ownership, topography (i.e. features such as mountains, rivers, and lakes), land use (i.e. grazing, timber, farmland), roads and highways, and the various towns and communities within the reservation. The maps will tell the leadership and planners the kinds of choices they can make when it comes to housing and community development.

Leaders and planners should carefully review their population. How many tribal members are within the reservation? How many live nearby in border towns or off-reservation service areas? How many non-member Indians are there(16)? How many non-Indians are there? What are the ages of the people? Populations are listed in "age cohorts" of ten years, e.g. 0-9, 10-19, 20-29, etc. This is important because it tells you what kind of population you must serve. Many Indian nations have many young children. For example, half of the Navajo Nation population is under age 20; 41% is under age 18; and 25% is age 9 and younger. That is a very important planning consideration, because it means that you must serve the needs of a young population.

How many people are in the employment market and how many are unemployed? Often, tribal leaders may see the state or U.S. Labor Department statistic that 35% of tribal members are unemployed, while Bureau of Indian Affairs statistics may indicate that 70% are unemployed. Which figure is correct? The answer is "both." Labor department unemployment statistics are based on the number of people in the work force. That is people who have applied for jobs or are registered with the state employment office as looking for work. The unemployment figure comes from identifying how many people do not have jobs but are looking for work. The other figure comes from the total population, and it shows how many people are unemployed. That may include the elderly, children, and people whose income is from a public welfare program for the elderly, disabled, or poor.

What are the income levels of your population? What is the source of their income? This information is important because you will need to know who can afford different kinds of housing or services and what they can pay. While most Indian nations do not have a personal tax for individuals, policy-makers need to know what they can afford when it comes to public services, housing, or other programs.

What are your social problems? Do the police report high rates of family violence, assaults, driving while intoxicated, or alcohol-related crime? Do you have gangs and vandalism? These are important planning facts because housing development can be a source of crime. The way housing development is done can impact and reduce crime. Planners need to be aware of social problems, as difficult as they may be to discuss, because they must be addressed as a factor in the planning process.

What is your history and culture? The people of different reservations many want to travel down different paths. That is, some Indian nations are "modern" and they may want to follow a municipal model of planning. That is, they may want to look at what similar non-Indian communities (in size and population) are doing about housing and community development. Some Indian nations may be rural, remote, and maintain traditional ways. How many native-speaking members do you have? (This can be found from Census statistics.) Language retention is often a sign that traditional patterns are followed. Aside from traditional Indian housing styles, residence patterns are very important. That is, are there identified communities on your reservation? Who lives in those communities? Do people tend to live with groups of relatives? Do people prefer to live in a community or do they want scattered-site housing? Does your community have religious practices where groups of people participate?

These are only a few of the things a good planner must consider when starting the planning process. Visioning enables leaders and planners to look into the future. It tells them what they have, what they do not have, and what they have to work with when it comes to a long-range vision of what should be done and what can be done. The next problem is the process of policy development and planning.

Transparency and Inclusiveness

"Transparency" means keeping things in the open. It means letting people know what is going on. It means news and information. Letting the people know what is being proposed is a good way of finding out your mistakes before you make them. It is a good way to get information and to see if your plan will be acceptable. "Inclusiveness" means including everyone in the planning process who will help carry out the plan. That can include the people who will be served by the plan, relevant tribal programs, federal programs (including the Bureau of Indian Affairs in most instances), state agencies, county government, and programs such as the nearby rural electric or telephone cooperative that provides service.

For example, if you are going to build a housing project in a rural area, is there existing police protection for the project? Are there schools nearby? If so, are they ready to receive the children who will live in the project?

What does the community think of your project? Does the community want a cluster housing project? If so, how will the people get to school or to work? Are there stores nearby for residents to do their shopping (and particularly the elderly or families without transportation).

Do you have an essentially non-Indian community within your reservation boundaries? What do its members think of the proposed plan or project? In the past, Indian nation councils have disregarded the views of non-Indians in their planning and that has been a mistake. Today, many non-Indians will challenge tribal jurisdiction over land use, zoning, taxation, or regulation on the ground that a given Indian nation cannot touch them. It is better to seek support for a project, showing how the proposal will benefit the non-Indian community. In addition, Indian nations may be able to seek and obtain the support of counties, cities, and the State for projects that will benefit everyone in the area. While there are still many difficulties to overcome in Indian-non-Indian relationships, there are new partnerships in and near Indian Country which are successful.

Transparency means getting the word out about what you are thinking of doing. It means informing people and agencies that will be involved and it means informing communities that will be affected. Inclusiveness means getting the views of those whom will be affected by a plan. Planners can use door-to-door surveys, town meetings, focus groups, conferences, summits of leaders and other methods to make certain that everyone knows what is being done and that everyone's opinion and information are heard.

Resources

One of the difficulties in planning is a lack of money. Planning can be very expensive. There are some Indian nations that are small, do not receive a great deal of federal money, and do not have a large resource or tax base for income. On the other hand, states receive federal block grants for planning and community development and some states finance planning and community development initiatives from their general fund budgets. Many universities have programs that teach or research land use planning, community development, and similar subjects. Many cities and counties have planners who specialize in housing and community development.

Indian nation planners should consider those resources. They should also keep in mind that their tribal members are voters and have the right to public services as citizens of the state. One part of your "legal inventory" should be the identification of all possible resources in your area that are available to provide assistance.

Many state, county, and city politicians in or near Indian Country are aware of the power of the vote. Many have good feelings about the future of their community and region, and many universities have specialized programs that will help if they are asked.

Mapping

"Mapping" is a comparatively new method of planning. It uses community surveys, an examination of the population and resources, and the identification of community needs and desires to develop plans. These kinds of information can be seen in maps that show what a community has and what it wants to do. If you know your people, your land, your resources and what you can do with them, as shown in maps and charts, you can make intelligent policy choices about your vision and how you can carry it out.

The Plan

There should be both long-term and short-term plans. A "long-term" plan is one that will be implemented over a long period of time. For example, if your plan is to build housing, you will need to know how many people need housing and which people are eligible for a particular housing program. You will not be able to fund or obtain funding for everyone who is eligible at once. If you are going to develop a land use plan that controls particular land uses (e.g. housing areas, shopping centers, future roads, agriculture, parks, tourist facilities, etc.), you will need to go through a process of planning such uses, identifying the laws needed to carry them out, and go through a transparent and inclusive process to make certain that the land use plan is practical and acceptable. Once you have identified what you want to do, you need to think of how the plan will be carried out over the long run.

A "short-term" plan is the way you will carry out a particular part of your long-term plan. If, for example, you choose to adopt a code that will deal with a regional landfill for trash, you will need to develop a short-term plan to carry out that goal. Who can use the landfill? What kind of trash can it accept or not accept under federal law? Will the landfill have an impact on the environment? What kinds of clearances and approvals will be needed? Will you charge a fee to use the landfill? Will you need to put out bids for trash collectors or which trash collectors will be able to use the landfill?

These are all issues where a council or business committee can become involved in developing policy. The governing body should identify who will obtain that information and how it will be presented. The council or business committee should tell the people who will be presenting information how the council or committee wants to receive it. Most leaders do not have time to read thick reports and sometimes statistics tell them little. There should be preliminary discussions with planners and presenters so they will know that the council or committee wants to make its decisions and how that information will be presented.

Policy development is about making choices. Leaders must have accurate and complete information to make wise choices, and it must be presented in a way that people understand. Once tribal leaders and planners have sufficient information to make choices, they can adopt a policy to get ready for the code-drafting process.

A Word about Lawyers

Many Indian nations have various arrangements for legal services. Some have lawyers on staff. Some have "tribal attorneys" in cities. Federal law provides that contract attorneys (those whom the tribe hires under a written contract where the lawyer is not an "employee") must have their contract approved by the Secretary of the Interior (through the Bureau of Indian Affairs). Not all lawyers can do the same thing. That is, some lawyers are courtroom litigators and know little about writing laws. Your staff attorney may be a few years out of law school and may not know how to write legislation or work with land use and planning law. Lawyer's ethics codes provide that a lawyer should not take on a project where that lawyer does not know the law of the field.

You may have the situation where a lawyer is willing to learn a new area of law(17), but you already have a planner or program director that knows a given program. That could include a housing director, planner, housing director, or someone else with expertise in a given area. In that situation, tribal leaders should make assignments to the lawyer and the person with expertise, with a scope of work and deadlines so the two can work together to deliver the specific product the council or business committee wants.

Code Drafting

There are many state or "model" codes available in the field of housing and community development. There are specialized codes for zoning, land use controls, and other specific areas. Tribal leaders should be aware of the limitations of outside models.

There are advantages and disadvantages to adopting outside codes. Some of the advantages include having legislation which has survived challenges in court, passing a code which people know how to work with because others have used it, or adopting a law without controversy because it is generally acceptable. For example, if you are going to adopt a zoning code, there may be a state zoning code which is generally accepted or a nearby municipal code which works well. Some of the disadvantages include the fact that the outside code is too expensive to use, you cannot find qualified people to administer it, or it just won't work in your community.

A lawyer who is about to undertake code development should identify available drafting models. There are national associations and commissions which study and recommend "model" codes on a wide variety of subjects, and most such codes can be found in a law school library or a State law library. While attorneys should look for state codes in the subject area chosen by the policy-maker, attorneys should be aware that there might have been unacceptable political compromises made when the code was adopted. Attorneys who are working on new codes should always look at regional and national case decisions on the ode, and law journal articles on the subject, to find out what challenges have been brought against the code and what problems there have been administering it. Often a visit with state officials who are administering a given code will be useful and save time and money. State attorneys who work with an agency that administers a code will often be able to help.

One of the difficulties with Indian nations adopting codes which are modeled after "model" or state codes is the fact that there are special twists and turns to code development in Indian country. Will the code apply to non-Indians? If the tribal court will be used to enforce the code in the event of litigation, will the court's code have to be amended to give it jurisdiction? Will the code apply to fee lands within the reservation? Will the code apply to an off-reservation "checkerboard" area? Does the council or business committee have the authority to adopt the proposed code? What is the most recent federal case law on Indian nation jurisdiction?

Rulemaking

There is a specialized area of law called "administrative law." It works this way: A legislature wants to deal with a specific problem but it does not want to get into details. For example, housing is a very complicated area, so Congress passes general housing laws which set out national housing policy, and the housing law gives an agency (the U.S. Department of Housing and Urban Development (HUD) for federal housing programs) the power to make "rules."(18) When proposed rules are published in the Federal Register and they are adopted, they are published in the Code of Federal Regulations and become law. They are "law" because Congress authorizes an agency to fine-tune general policy in statutes by means of rules or regulations.

Will you have a tribal agency, board, or body that will carry out your law? Do you need to give that body the power to make rules? If so, how will they be adopted? Will there be public notice and an opportunity to comment on proposed rules? What happens if there is a dispute with the agency over a particular rule or how it is applied? Will the agency have the power to make a legal decision on the dispute(19)? Will an outside agency decide the dispute or will it be decided by the tribal court? If someone is dissatisfied with the agency decision, can it be reviewed by the tribal court?

Most often, housing and community development codes provide for an administrative agency to administer the code, and often, the agency has rule-making power. The tribal legislature will have to make decisions about the structure, powers, and cost of the agency and its authority to make rules and resolve disputes when the rules are applied.

Another option is to provide that an agency (e.g. a housing authority) will carry out its business by adopting policies. What is the difference? Agencies that have rule-making authority can make law to carry out a code. Where the agency has participants who deal with the agency by a contract, the internal method of enforcement is usually a policy. For example, there should be a policy on homeowner and tenant conduct which can be enforced by having a policy which spells out the kinds of conduct which are prohibited and which will break the contract, and fair procedures for homeowners and tenants to protest an agency decision.

Code Review

Some Indian nation councils or business committees consider proposed legislation directly, and others have committees to review proposed laws. Whatever method is used, the council or committee which considers new legislation should know what it is they are about adopt.

One of the worst ways a new law can be adopted is for the lawyer or expert to say, "Trust me. This is why you want. Adopt it." Another poor approach is to attempt to go through a proposed law line-by-line. As it is with policy development, the law-making body should know what is in the proposed law. What does it say? What will it do? Do we expect any problems implementing this law? Do we have people who know the law well enough to administer it?

One of the problems with legislation in Indian Country (and elsewhere) is that too often, lawmakers do not understand what they are voting on. They must know what they are doing and why they are doing it.

Another part of code review is obtaining approvals from other agencies. If, for example, the Indian nation has an Indian Reorganization Act constitution and bylaws that require Secretarial approval of resolutions and ordinances, there should be Bureau of Indian Affairs review before the code goes to the legislature. Most often, such code review is done by the Bureau of Indian Affairs Area Office solicitor, and that lawyer should be part of the development process early on. If a given code deals with an area under federal funding or program administration, the program staff and agency attorney should also be a part of the process early on. Federal or state agencies which will be involved with the implementation of the law are often valuable resources and they can prevent mistakes before a law is adopted.

Code Implementation

Another unfortunate mistake in Indian Country (and elsewhere) is to pass "a law" and think that takes care of the problem. Unfortunately, that is not the case. Laws most often fail where the people who administer them do not know how to do so or where people whom the law affects do not know what is in it. Code implementation requires (1) publicity, (2) orientation or training, and (3) more planning.

The general public should know when a new law is adopted, what is in it, and how that law will affect them. There should be news releases for publication in area newspapers and airing on local radio and television. There should be pamphlets in plain language, which give information on what is in the new law and how it will work. Individuals who want a copy of the law should be able to obtain it (for free or for a reasonable reproduction cost). People should know where they need to go or who they need to see if they have questions or want more information.

Obviously, there should be orientation and training for the people who will directly administer the law. Others may need to be involved. For example, if the code provides for court review in the event of a dispute, judges should have orientation on the law. If there is a new curfew ordinance that will be administered by the police, with cases heard in the courts, obviously both police and judges will need to know the ordinance well. Schoolteachers, businesses that stay open late at night and others will also need to know what is in the law. Who should receive orientation is determined by the duties set out in the law.

When a legislature adopts a law it sets policy. The law tells people what they must do, what they must not do, or how to obtain a benefit. After a law is passed, there will need to be plans to implement the law by those who have the responsibility to administer it. The "plans" can be in the form of rules, policies, and internal agency plans to assign responsibilities and give guidance on implementing the law.

Review

Your law is in place and there are also plans to carry it out. Is that enough? Not all laws work well. Even the best legal drafter will fail to include something, or there will be confusion about what a portion of the law means. Laws passed by legislatures are reviewed by courts, and sometimes a court may make a mistake in interpreting a law or make an interpretation which the legislature does not like. Councils and business committees should also be concerned about how the law is working. There are several ways to review legislation after it is adopted.

The most common kind of review is an agency report, which can be filed with a council or business committee on a quarterly or annual basis. The report may be reviewed by the entire council or business committee or a specialized committee. Reports can be boring and many people do not read them. To address that problem, there should be a way for the program director or its board to appear before a council or committee to give an oral report and to answer questions about the program’s report.

Another method of reviewing legislation is to conduct oversight hearings. For example, the United States Senate Committee on Indian Affairs sometimes holds oversight hearings on particular subjects. How well is the Indian Self-Determination and Education Assistance Act of 1975 (as amended after other oversight hearings) doing? What are the problems with law enforcement or Indian courts? Some oversight hearings can be scheduled on an annual or other basis, and sometimes legislatures hold oversight hearings when a problem makes the news.

Many legislatures use "sunset" provisions to review a law. That is, a legislature may create an agency that will go out of existence at a specific time. The agency may "exist" for five years and go out of existence unless the legislature reapproves it. Most often, there will be some kind of oversight and hearings before the agency expires so that the legislature can identify problems and decide whether to abolish the agency or change the law which created it.

Practical Considerations

The reader may be frustrated at this point because the details of legal foundations and infrastructure and code development process may seem to be complex, lengthy, or just too much to do. It may seem that involving professionals will cost too much. As everyone knows, when you propose something new, there will always be that individual or a group that will protest. This section addresses some of those concerns. 

Big Picture - Baby Steps

Tribal decision-makers should always have the big picture in mind. Councils and business committees are responsible for the health and well being of their tribes and the people expect them to plan for the future. Seeing the "big picture" is important, and the previous section suggested how leaders can "see" the picture, dream about it, make policy, and undertake the process of passing and administering codes.

If you have a plan which deals with a large subject and lays out the details on how to carry out a vision in long-term and short-term plans or objectives, that gives you a way to take "baby steps." Another way of putting it is that you must walk before you can run.

A good comprehensive plan with legislation to back it up and oversight gives policy-makers the ability to see what is going on.

One good device to stay on top of the process is to use flow charts, diagrams, and wall charts to monitor the progress of a plan. That enables policy makers to know what is going on and to make changes as they are needed. The council or business committee should decide how it wants to be involved in the process of code development and implementation very early in the process.

Rights

Planners and policy-makers should be very aware of the idea of "rights." There are different kinds of rights. For example, if you are going to adopt a land use code and people will be stopped from doing things on a particular area of land, they are going to complain about their rights. A person who owns land or owns an interest in land (such as the holder of a tribal allotment or selection of land) may claim that it is unfair or illegal to stop doing something or be required to do something. In some communities, piles of trash on land by a roadside can be considered dangerous or people may object to a law that requires them to junk old cars that no longer run. People may object to hunting restrictions where they have hunted for a long time, or people may protest a housing project or dump near where they live.

In other words, people will object. How do you address those objections? This introduction stresses transparency and inclusion above to give people an opportunity to raise their various kinds of rights in advance. The validity of legislation is often much safer when there has been a process where people can object and the legislature can deal with the good policy reasons why they will adopt a law in advance. The United States Supreme Court has made it clear that when non-Indians will be regulated or subjected to tribal court jurisdiction, Indian nations do not have the power to regulate or subject non-Indians to court action unless (1) they consent or (2) the jurisdiction has to do with interests of public health, welfare, or safety. Code drafters need to take those things into account when drafting legislation which will apply to non-Indians, carefully document them, and spell out the Indian nation's interests in adopting a law.

When an agency or program has the authority to make rules or adopt policies to implement a code, there should be provisions for people to protest and raise their rights. The law can provide for fair hearings by a board or a hearing officer, or the law can provide for alternative methods to resolve disputes, e.g. meetings, mediation, arbitration, peacemaking, or some other form of dispute resolution.

Ultimately, your tribal court should have the authority to decide challenges to a law or how it is applied. There is a doctrine of civil rights law that everyone who has a claim under your Indian nation's Bill of Rights or the Indian Civil Rights Act has the right to access to the courts to raise civil rights challenges. That right should be respected in your code and it should provide for court review even when a "civil right" may not be involved.

The idea of rights people can enforce in a fair way should be a part of your vision. This is not a perfect world. Governmental officials and program administrators have been known to read their own law wrong, make mistakes, or deny or give benefits based upon favoritism or prejudice.

Democracy

Democracy, or involving people in public life, is an ancient Indian tradition. One Indian tradition that is common throughout the United States is the notion of "consensus," where people talk things out and agree to a decision. Too often, Indian nation councils and business committees have been accused of making decisions behind closed doors. They have been accused of favoritism toward relatives or bias against non-Indians or nonmember Indians. They have been charged with denying peoples rights in an arbitrary way. In the legal world, judges and lawyers have written articles that say that Indian courts are great, but isn't it too bad that tribal councils control them.

In 1928, the famous Merriam report said that federal Indian policy had been a failure because decisions were made for Indians by Bureau of Indian Affairs agents who were not members of the tribe. The U.S. Congress passed the Indian Reorganization Act in 1934 in hopes of shifting power and authority to tribes. Unfortunately, Congress imposed what is essentially a business corporation model of government where a powerful "board" make decisions for a tribe. Sometimes governing bodies are out of touch with their communities and they do make decisions without regard for their impacts on others.(20)

That is why there is a strong emphasis on free information and involvement in this introduction, along with suggestions on ways to fairly resolve disputes. Housing and community planning should be open and involve people, with due respect for individual rights, because it affects everyone. If I do not have housing and want it, I need an opportunity to tell someone that and have them listen to me. If a new law affects me, I should have an opportunity to know what will be in it and have an opportunity to comment upon it. If a new law affects me or is administered unfairly, I should have an opportunity to be heard by the person or agency that administers the law and to go to court or some other dispute resolution body if I am treated unfairly.

Indian nations are at a crossroads. This introduction is designed to introduce tribal leaders to a new world of planning. It tells leaders what planning, policy development, and code development are about and how to go about it. That is not enough.

As Vine Deloria has said, Indian nations are laboratories for positive change. They do not have to do what the rest of the country is doing, and it may be that Indian nations will set examples for the future which the general American society should follow. There are two traditional Indian ideas that everyone should consider: The first is respect. Respect for people, the land, and everything in reality. The second is community. Indian nations need to honor individual rights (which is also a traditional Indian concept), but they do so in the context of the good of the community as a whole. Those seemingly contradictory ideas are not contradictory. It is possible to develop and carry out housing and community development in a legal infrastructure that is as concerned with the ways we plan and implement as it is with the technical methods.

Footnotes

1 "Planning and Land Use Control Law" includes the subjects of planning law, zoning, subdivision control, building and housing codes, growth management and planning, constitutional [or civil rights] limitations, windfalls and wipeouts [conflicts between regulation and land rights], protection and preservation of the natural and built environment (environmental protection, aesthetic regulation, historic preservation, and farmland preservation), new and revitalized communities, private land use control, eminent domain, and land use litigation and practice. DONALD G. HAGMAN AND JULIAN CONRAD JUERGENSMEYER, URBAN PLANNING AND LAND DEVELOPMENT CONTROL LAW 2-6 (2nd ed. 1986). While the title of this text has the word "urban," these subjects apply to both urban and rural land use planning and control.

2 CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW (1987).

3 "fee patent" is a deed for absolute ownership of a piece of land received from the federal government.

4 Federal regulations are published in the Federal Register, a periodical which publishes proposed regulations, adopted regulations, and other agency notices. Adopted federal regulations are published in the Code of Federal Regulations. The U.S. Government Printing Office publishes agency regulations in paperback format each year.

5 Strate v. A-1 Contractors, 520 U.S. ___, 117 S. Ct. 1404, 137 L.Ed.2d 661 at 670, 677 (1997).

6 Planners should have a "legal audit" done before starting the planning process. A "legal audit" is simply a review of applicable federal, Indian nation, and other law which addresses priorities set by the planner. So, for example, if the planner wants to know what power his or her Indian nation has to develop a comprehensive land use plan, the lawyer would be instructed to review all laws required for such a plan. The lawyer would then advise what laws are in place, what the various requirements for the plan are, and what other laws may be needed to carry out the process as instructed by the planner.

7 The United States Congress ended the process of making treaties with Indian nations in 1871, while confirming existing Indian treaties.

8 E.g. McClanahan v. State Tax Comm'n., 411 U.S. 164 (1973); Carpenter v. Shaw, 280 U.S. 363, 367 (1930); Winters v. United States, 207 U.S. 564, 576-77 (1908). See also, Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows or Grass Grows Upon the Earth" - How Long a Time is That? 63 Cal. L. Rev. 601, 608-19 (1975) and Craig A. Decker, The Construction of Indian Treaties, Agreements, and Statutes, 5(2) American Indian L. Rev. 299 (1977).

9 E.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970); United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938); Starr v. Long Jim, 227 U.S. 613, 622-23 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582 (1832).

10 E.g., Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943); Tulee v. Washington, 315 U.S. 681, 685 (1942).

11 There is a good table of "Statutes, Court Decisions and Executive Orders" at www.doi.gov/bia/stats930.html. That listing sets out the major federal Indian statutes which planners should know for the planning process, federal requirements, and Indian nation authority.

12 When the University of New Mexico Press republished the 1942 edition of FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW in 1982, it included a useful "Tribal Index of Materials on Indian Law" which lists pertinent treaties, statutes, case decisions, and other useful materials for Indian tribes by name. Id. at 457-484. While the work is badly out of date, it is still a useful place to start a legal audit of any given Indian nation.

13 Some provisions of the General Allotment Act are still in place at 25 U.S.C. Secs. 331, 334, 348, 349 and 397.

14 See "Statutes, Treaties, Court Decisions and Executive Orders" above at n. 11. Also see the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA)..

15 Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA)..

16 This is a difficult statistic to find. The Census Bureau counts American Indians and Alaska Natives under that general category and generally does not count people by tribal membership. If the given Indian nation has a good periodic census, that can be used to subtract identified tribal members from Census data for the reservation which gives the numbers of American Indians and Alaska Natives to obtain an estimate of nonmember Indians.

17 Lawyer ethics codes also provide that a lawyer cannot charge a fee for learning the basics about a new area of law. If a given contract lawyer is going to get into a new area of law, the contract should state that the lawyer will not charge a fee for studying some of the fundamentals of that new area. You can find out what a lawyer does or does not know by asking, checking with the state bar association, and looking up the lawyer in legal directories (many of which are available on the worldwide web).

18 The U.S. Administrative Procedures Act calls them "rules." Most of us know them as "regulations" because they are published in the Code of Federal Regulations. Lawyers call them "rules," and most of us know them as "regulations."

19 This is called "quasi-judicial power," because the agency acts something like a court in deciding the dispute, using its expertise on the area of law.

20 To be fair, many of the same criticisms are true of county boards of commissioners or city councils.