THE OKLAHOMA BAR JOURNAL 26 | APRIL 2024 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. second exception. Therefore, it is vital to incorporate language into legislation that establishes the consensual relationship between the nonmember and the tribe or its members, in addition to examples of how the nonmember’s conduct threatens the tribe’s well-being. Tools Needed to Bridge the Gaps This section briefly addresses the tools needed to bridge the gaps discussed above. As with any legislation, the contents will be challenged, and the courts will render decisions on the meaning of the statutes. Judges have competing views on how to interpret the law. The two main theories of statutory interpretation are purposivism and textualism.35 “Purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, [and] textualists maintain that judges should primarily confine their focus to the statute’s text.”36 Regardless of the theory applied, courts are likely to face interpretive difficulties and apply a statute in ways the legislative branch may not have anticipated or intended. Therefore, it is important that tribal practitioners use the tools judges use to gather evidence of statutory meaning when drafting legislation. “A judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.”37 It is recommended that the tribal practitioner use the following tools in the following order: text, structure, legislative history, purpose, policy and the Indian law canons of construction. The tribal practitioner should read Statutory Interpretation: Theories, Tools, and Trends and Textualism and the Indian Canons of Statutory Construction for a further explanation of the tools discussed herein. How to Bridge the Gap Between the Four Sources of Authority The first step to bridging the gap between the four sources of authority is to analyze the situation that prompted legislation, its problems and its solutions while determining the tribe’s traditional, cultural and spiritual values that must be incorporated into the legislation. The second step requires the tribal practitioner to determine what inherent powers the tribe will be utilizing to assert its jurisdiction. The tribal practitioner should also understand which key bedrock principles it plans to use and incorporate such language into the text of the legislation. The third step is to examine the Constitution and the individual tribe’s constitution to determine the power given to Indian tribes and the limitations imposed upon such powers. By examining these two constitutions, the tribal practitioner is clearly defining the framework upon which it may be built. Examining the two constitutions prevents the tribal practitioner from passing bad, unethical, unpopular laws that are against the tribal and federal governments’ values. When examining the two constitutions, tribal practitioners are encouraged to consider the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). If the tribe’s constitution does not include the rights of Indigenous people to enjoy their cultures, customs, religions and rights to pursue economic, social and cultural development, then the tribal practitioner should advocate for the adoption of the tribe’s version of the UNDRIP or consider implementing aspects of the UNDRIP into the tribe’s constitution. If it is not feasible for the tribe to adopt its own UNDRIP or implement aspects of the UNDRIP into the tribal constitution, then the tribal practitioner should consider ways to implement the language of the UNDRIP into its laws. The fourth step is to determine what federal legislation, if any, limits the powers of Indian tribes. The tribal practitioner should clearly identify the absence and/ or lack of clear federal legislation and the areas in which the state is competing for control. A clear
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