By Harold Monteau
I still can’t believe that Indian Country let the PACT (Prevent All Cigarette Trafficking Act) slip by and I still can’t believe that the president signed it without even a mediocre scream from Indian Country. I’m not just talking about it’s impact on the Indian tobacco sales but about it’s impact as precedent by restricting yet another facet of Indian commerce. What will be the next area of Indian commerce that the Congress will decide to restrict? When will Congress stop taking away avenues of commerce on the reservations simply because tribes choose to not tax at the level of the state? Congress is “de facto” taxing Indian commerce into oblivion. Do any of the next generation of Indian attorneys care?
The day after the president signed PACT into law, I sent a message out to the Young Indian Attorneys (YIPs) on the Indian Facebook network. The message essentially asked how this could happen ‘on their watch’. I said “I didn’t train Indian attorneys for the last 20 years to let stuff like this happen”. Well, I didn’t say “stuff”. The message was the same to my contemporaries. Where were the Indian attorneys and Indian law attorneys when this aberration was making its way through Congress? It seems like only the Seneca Nation of New York was the only one fighting the battle. I’m sure that there were some other tribes that tried to fight it and I’m sure that NCAI may have tried to derail it. However, the attitude seemed to be that “it’s only cigarettes”. Some people also saw it as a health issue and therefore would be good for Indian Country because it would discourage Indians from smoking. (I hope no one in Indian Country bought the justification of keeping money out of the hands of terrorists-what a crock? It was a money grab by the states and Congress carried their water and dumped ours again.) So, is it OK to sacrifice a little piece of sovereignty if the subject of the intrusion on sovereignty is unpopular or looked upon as a vice? What little piece of sovereignty are we going to sacrifice next? How about our power to tax commerce within our territory or our power to enforce TERO within our boundaries and our off-reservation businesses? Maybe we should sit back and let Congress gut the Indian Child Welfare Act and the Indian Gaming Regulatory Act. Hopefully, as pertains to the last two, we’d have the entire alphabet soup of Indian organizations coming down on members of commerce and a president we helped elect. (We were first on the bus but last off when he reached his destination -the White House.) What good are appointments of Indians to mid-level administrative positions when legislation like PACT is signed without a whimper of dissent?
Frankly, I am very disappointed in the younger generation of Indian attorneys. The attitude seems to be ‘if I’m not getting paid for it, why should I care about it’ and ‘the tribe didn’t tell me to get involved in it so I can just ignore it’. I sometimes wonder if we have forgotten that we are legal counsel. We are supposed to counsel our clients about the law and their potential compliance with it or non-compliance. We especially need to counsel our clients about the consequences of proposed laws and regulations, particularly those passed by the two other sovereigns, when there are potential consequences to the tribes, positive or negative. I am especially disappointed in those young Indian atorneys who have the power of large multi-state and international practice law firms behind them. Of course, some may have legitimate concerns about their future in those firms if they do anything they are not going to be paid for as they owe every hour of their workday to the bottom line of the firm. However, one may have to be an advocate for Indian clients, even within the hierarchy of the firm. You need to convince the bosses that something as obscure as “registration of Indian tobacco sales with the state” or “regulation of internet tobacco sales” is an attack on Indian commerce as a whole and not just about whether smoking is good for you or not.
Another item of strictly gratuitous advice; keep your integrity. It is very difficult these days to tell your tribal clients the truth when they may have gotten used to attorneys that tell them what they want to hear. I can’t blame you for being somewhat cynical about telling your Indian clients things they don’t want to hear because one obvious potential consequence is they will fire you and hire someone who will tell them what they want to hear. If you don’t go along to get along you may be relegated to the scrap pile of obscurity. Been there done that. I can tell you that even if you lose out on all the trappings of success, but you have been honest with your clients and yourself, you may end up poor but you’ll have your self-respect. I say this at the risk of sending a mixed message. Yes, one has to make choices and I don’t begrudge anyone making a decision about their career that is weighted toward material wealth in order to take care of your family. However, material or monetary success as an Indian lawyer is not mutually exclusive from the success that comes with integrity. I sometimes wish, if only for a fleeting moment, that I had continued to fight for my clients within my old firm rather than keeping my integrity and stepping away from something I had spent a decade building. I left because it had become about feeding the beast (making money) rather than doing what was best for Indian clients and telling clients what they needed to know versus what they wanted to hear. I went from living in a 6,000 square foot mansion and driving an Escalade ESV to living in a 1,200 square foot Indian Housing unit and driving a five year old Dodge Ram pickup. But you know what, I spend so may beautiful hours with my family that I would have spent on airplanes and in hotel rooms. Poor is a relative term.
My apologies to my daughter, who is a young Indian lawyer, and her contemporaries if I’m being a bit harsh on a seemingly trivial issue. Tribal sovereignty is not trivial. You need to breath, sleep, eat and live tribal sovereignty because it’s your responsibility to perpetuate and enhance it until the day you pass it on to the next generation of Indian attorneys and Indian leaders. If you don’t there may not be much Indian law to practice in 50 years. It’s your duty to see that there is.
Harold Monteau is a Chippewa Cree Attorney and former Chairman of the NIGC. He writes from the Coeur d’Alene Reservation in Idaho and can be reached at hamlaw@live.com or on Facebook.
