When a Ute tribal judge made the unpopular decision last summer of finding the eastern Utah tribe's ruling Business Committee in contempt of court, the committee fired him, dismissing him on grounds of gross misconduct.
Judge Larry Yazzie, now a Yaqui tribal judge in Arizona, called his dismissal a flagrant breach of the concept of separation of powers - a notion considered fundamental to the Constitution of the United States of America.But the fact is, the U.S. Constitution doesn't apply on the Ute Reservation or any other U.S. Indian reservation, giving tribes free rein to cross lines that for two centuries have balanced power in the U.S. government.
While Ute officials say the Yazzie affair was lawful under Ute statutes, some state and federal Indian law experts say Yazzie's dismissal is part of a larger civil rights crisis affecting Indian governments throughout the nation.
Like all other U.S. Indian tribes, the Ute Tribe has sovereign immunity. Sovereign immunity means tribes have an exclusive right to govern themselves - without intervention from federal courts or other U.S. agencies.
Without the U.S. Constitution, tribal government - its council and judicial system - has nearly complete power over reservation affairs under the Indian Civil Rights Act of 1968, the equivalent of the Constitution on reservations.
U.S. courts only have jurisdiction over reservations if Congress grants it, which it has on a limited basis. Killers of two Navajo policemen were convicted under such powers. But Congress is loath to interfere on reservations.
Power on Ute land has been further concentrated by a new law prohibiting legal action against the tribal government in tribal court. U.S. citizens can sue their government under civil rights legislation.
The result of sovereign immunity and the new law, state and federal legal experts say, is that in many cases, those living on the Ute Indian Reservation and other Indian lands have few, if any, civil rights.
Ute officials and their legal experts, though, say their government effectively grants civil rights and is more benevolent than Indians would find off their reservation, the largest in Utah and second largest in the nation.
The Ute law preventing legal action against the tribal government is one of many problematic signs across the country indicating the dismal status of civil rights on Indian reservations, said William Howard, general counsel for the U.S.Commission on Civil Rights.
"If it is an ordinance preventing Indians and non-Indians living on the Ute Reservation from seeking redress against the tribe for violation of their civil rights under the Indian Civil Rights Act, that is a problem," Howard said.
Although a similar version of the law curbing adjudication against the tribe already existed, the new law came partly in response to the Yazzie affair, stopping future judges from holding the Business Committee in contempt.
Last summer, Yazzie found the Business Committee in contempt of court for failing to pay more than $500 million in back dividends to new tribal members. The committee's response to the ruling was to remove him from the bench.
Yazzie told the Deseret News he wasn't allowed to defend himself from the committee and that, in firing him, the Ute Business Committee had become "a law unto itself. They think they are the Supreme Court," he fumed.
Under the U.S. federal system, Yazzie's demise likely would have been considered tantamount to Congress meddling with the Supreme Court, a breach of separation of powers. But not on the Ute and other U.S. Indian Reservations.
"There is no separation of powers in our Constitution," said Ute Business Committee Tribal Chairman Lester Chapoose, explaining that Ute courts are under the purview of the ruling Business Committee.
The committee lawfully fired Yazzie, Chapoose said, after he failed to take into account a referendum vote invalidating the dividend payments.
But the lack of traditional separation of powers doesn't mean the Ute Tribe and other Indians act without a system of checks and balances, Ute Tribal Attorney Steve Boyden said.
Tribal members have the power to recall any of the six Business Committee members and bring any of their decisions to a referendum vote. Recently, for example, Ute voters overturned a Business Committee decision to repay the back dividends Yazzie demanded be repaid, Boyden noted.
A vote by members of the Ute Indian Tribe to oust the tribe's governing council Tuesday, however, is in dispute.
"All their (the Business Committee's) actions are reviewable by the people themselves," said Boyden, who said Tuesday's action was not binding. (See related story.)
Although the Ute people, according to Boyden, have the privilege of reviewing Business Committee decision, U.S. courts are, in most cases, banished from Indian affairs.
"It has been at the total discretion of the tribes as to whether or not meaningful civil rights will be acknowledged on the reservation," said Dennis Ickes, a former director of the Office of Indian Rights at the U.S. Justice Department.
On the Ute Reservation, even Chapoose agrees that sovereign immunity means if someone's civil rights are violated, judicial redress simply can't be sought.
"I would have to agree with that," Chapoose said, "but then again, I'm not an attorney."
Boyden, the tribe's attorney, said that although no judicial redress is available on the Ute Reservation, the Business Committee itself is a "strong and healthy" remedy for someone whose civil rights have been violated.
Boyden argued that sovereign immunity has permitted the Utes to institute a government more benevolent than the state and federal governments that surround their Uintah Basin reservation.
"They (the Business Committee) give out literally millions of dollars for people with hardship cases. The Business Committee has an easy touch," he said.
"When you tell people the Constitution doesn't apply on Indian Reservations, they sit up and say `what!' But they don't write their congressmen," Ickes said. "It hasn't gotten to that level, emotionally."
But the situation has gotten the attention of Sen. Orrin Hatch, R-Utah, who plans to introduce an amendment to the Indian Civil Rights Act to establish separation of powers in tribal government and expand federal court jurisdiction overtribal affairs, an aide said.
Court decisions and legal entities that affect tribal government:
-The Indian Civil Rights Act of 1968 is, in effect, a Tribal Constitution or Bill of Rights giving tribes the right to extend certain civil rights to tribal members.
-Santa Clara Pueblo vs. Martinez is a 1978 U.S. Supreme Court ruling prohibiting federal courts from enforcing the Indian Civil Rights Act, leaving its enforcement up to tribal governments.
-Sovereign immunity is enjoyed by all Indian tribes, giving them the right to govern themselves, just as the United States has sovereign immunity to govern itself.
-The Ute Business Committee is a tribal council made up of six elected Ute tribal members. Most Indian governments are lead by a tribal council like the Business Committee.