Tribal Sovereignty Archives - Page 2 of 3

New York State Charges Passamaquoddy Fisheries Official With Elvers Poaching

WCSH6/NBC affiliatePassamaquoddy fisheries official charged with fraud while helping Unkechaug Indian Nation implement an eel management plan. — WCSH6/NBC affiliate
Passamaquoddy fisheries official charged with fraud while helping Unkechaug Indian Nation implement an eel management plan.

Gale Courey Toensing, ICTMN

The Passamaquoddy Tribe’s battle with the State of Maine over Native fishing rights became an interstate issue recently when New York State authorities lodged multiple felony poaching charges against a Passamaquoddy fisheries official who is helping the Unkechaug Indian Nation implement its eel management plan.

But according to Fred Moore III, the Passamaquoddy Tribe’s Fisheries Committee Coordinator who was charged, the fight for Native fishing rights is soon to become a bigger issue than the battles in Maine and New York.

Moore, his two sons and five other Native men, including citizens of the Unkechaug, Shinnecock, Mohawk and Anishinaabe nations, were charged with possession of American eels in excess of the New York State limit; possession of undersized American eels, and not having a state-issued food fish permit. All three charges are considered felonies because the value of the eels in the group’s possession was more than copy,500. They were also given misdemeanor charges of conspiracy to commit a crime and using an eel trap with a mesh size smaller than the minimum limit allowed, according to Lisa King, spokesperson for the New York Department of Environmental Conservation (DEC), in an e-mail response to an ICTMN request for comment.

King said the eight men “surrendered themselves” to DEC officers on April 8. She did not respond to questions seeking the state’s position on tribal sovereignty and aboriginal fishing rights. The men are scheduled for arraignment on June 25.

The Passamaquoddy Tribe has been locked in battle with the State of Maine for the past two years over the tribe’s treaty and aboriginal right to fish for elvers, tiny baby American eels also known as glass eels. Citing concerns about the dwindling number of American eels available, the state wants to limit the number of permits the tribe issues. The tribe says every member has an inherent right to fish, but its conservation plan limits the total amount of elvers the tribe can harvest. Ironically, until this year the state limited the number of permits it issued but allowed an unlimited harvest of baby eels. This year under threat from the Atlantic States Marine Fisheries Commission (ASMFC) to shut down the fishery, the state has caught up to the Passamaquoddy’s traditional conservation knowledge and reduced and limited the total allowable catch.

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Moore, who is working at Unkechaug under tribal authority, told ICTMN that the matter of Native fishing rights is soon to become a central issue for eastern coastal nations. The Penobscot Nation is already embroiled in a federal lawsuit against the State of Maine over hunting and fishing rights. The lawsuit is supported by the Interior Department, which has entered the case as both intervener and plaintiff, and the Passamaquoddy Tribe is thinking about intervening, Moore said. In an interview with ICTMN, Passamaquoddy Chief Clayton Cleaves at the tribe’s Sipayik community, said the council will also consider a separate legal action.

“What we’re doing here is providing Unkechaug with technical assistance in implementing their eel management plan,” Moore said. “But we’re also here to assist other tribes in formulating a position for a class action suit against the Atlantic States Marine Fisheries Commission. The ASMFC has an American eel management plan that deals purely with member states and only references Native Americans. We don’t want equal status [with states]—want to be exempt from inadequate management mechanisms which cater to the economic interests of competing jurisdictions. We can’t have any part of it because they‘re completely inconsistent with indigenous culture.”

The ASMFC, created in 1942 by Congress, represents 15 Atlantic coastal states with a stated mission of “promoting and protecting Atlantic coastal fishery resources.” Each state has three representatives on the commission: the director of the state’s marine fisheries management agency, a state legislator, and an individual appointed by the state governor to represent “stakeholder interests,” according to the organization’s website. The United South and Eastern Tribes’ 26 member tribes, whose aboriginal and reservation territories are predominantly along the Atlantic coast, are not represented on the commission.

Moore said he wasn’t fishing on the night of March 28 when the men were ticketed for violations, but that the group had fishing permits issued by Unkechaug. The DEC was alerted to the group’s activities in a creek on Long Island’s east end and waited in the weeds for the tribal members to come back and start emptying their nets of elvers, Moore said.

“They were aware that the Unkechaug had issued permits, but they made a policy statement by charging us and basically treated these folks like they’d just robbed a 7-11 at gunpoint,” Moore said. “And to be branded as poachers is laughable—Passamaquoddy has offered the state assistance in apprehending poachers.”

If DEC authorities hadn’t “pounced” on the group, Moor added, they would have seen the men stock most of the elvers above artificial barriers—which is one of the conservation techniques he is implementing for the Unkechaug.

Unkechaug Chief Harry Wallace called the charges “ridiculous…. It was a multi-tribal project, and the whole idea is to restore the fishery all along the northeast coast,” he said. “If we don’t do it the whole fishery will be destroyed if they [the state] continue their practice.”

The creek is in Unkechaug aboriginal territory, where members exercise aboriginal fishing rights, Wallace said.

New York State allows a massive taking of eels six inches and longer, but prohibits the taking of elvers. The tribe has imposed a moratorium on the taking of adult eels, each of which can spawn tens of millions of elvers, Wallace said.

“Our goal is to restore 50 percent of what we take. We put them above a manmade obstruction so their chances of survival are enhanced,” he said. “This is a Native practice.”

To date, the Nation has successfully stocked more than 10,000 glass eels into Mill Pond and East Mill Pond at the headwaters of the Forge River adjacent to the Unkechaug Indian Reservation near Mastic, New York, said Wallace, adding that the DEC violated its own policy by filing felony fishing charges against Nation members and employees operating under the authority of the Unkechaug Nation American Eel Management and Restoration plan without first consulting the Nation.

“After being advised that Unkechaug eel restoration activities were being conducted under license issued by the Nation, ranking officers and representatives of the DEC acknowledged that they were aware of the license but refused to void the charges,” Wallace said. “Instead, DEC officials made racially disparaging remarks concerning the inherent rights and responsibilities of Native Americans, insisting that the Unkechaug eel fishery is a front for the illegal exportation of glass eels to other states.”

The Nation is contemplating legal action against the state, Wallace said.

On April 17, Chief Clayton Cleaves and Chief Joseph Socobasin of the Passamaquoddy communities at Sipayik and Motahkomikuk, respectively, wrote a letter of “support and commitment” to Wallace.

“Please be assured that your efforts to secure the rights and interests of your people while ensuring the sustainability of the American eel within their natural range will benefit all Native people on the east coast, including others who do not understand the cultural and spiritual relationships we have developed over several millennia of existence within our territories,” they wrote.

The chiefs said they are committed to working with Unkechaug “in defense of the marine environment, its resources and fishing rights of indigenous people.”

Minnesota, Leech Lake Band square off over cigarette tax

Leech Lake Reservation is in a dispute with the state over taxation fairness and sovereignty.

By Jennifer Brooks, Star Tribune

The state of Minnesota and the Leech Lake Band of Ojibwe are locked in a dispute over cigarettes and sovereignty.

Agents from the Minnesota Department of Revenue intercepted a delivery truck in St. Cloud on Good Friday, April 18. The truck, bound for a tribal gas station in Walker, was loaded with 281 cartons — 2,810 packs of cigarettes — that had been rolled at a Winnebago tribal facility in Nebraska and shipped to Minnesota unstamped and free of the state’s hefty cigarette tax. If they’d made it to their destination, they would have sold for $3.50 a pack — compared to the $6 to $9 smokers were paying everywhere else in the state.

For the state Revenue Department, the seizure was an issue of tax fairness. For Leech Lake’s leadership, it was a violation of tribal sovereignty. The result is a standoff, with millions of dollars in state tax revenue at stake.

In a statement, Leech Lake dubbed the incident “the Good Friday Seizure,” calling it “yet another attack on Native American rights. The Band sees this seizure as an attempt by the state to implement its unfair taxation plan on the lands of the Leech Lake Reservation, this time resulting in the unfortunate economic isolation of a federally recognized American Indian Tribe.”

The Department of Revenue, in turn, has cut off the taps — withholding the state tax equity revenue it normally splits with the tribe for its sale of other state-taxed items like sales, gas and alcohol — until the band agrees to start selling state-taxed cigarettes again.

Losing that shared tax revenue could cost Leech Lake $2 million or more a year, said Revenue Commissioner Myron Frans.

“We just want to make sure cigarette prices are uniform and fair,” he said Friday. “Leech Lake is the only tribe now that insists on selling non-state-stamped cigarettes, and that’s a considerable price differential. It’s really unfair, and it’s a terrible health outcome, as well.”

Ten of the state’s 11 tribes have agreed to sell only state-taxed cigarettes, and Frans said his department has worked with Leech Lake for years to try to reach a similar deal.

“We respect the sovereignty of all the tribes and we take their sovereignty very seriously,” he said.

Leech Lake Chairwoman Carri Jones could not be reached for comment Friday, but in a statement she said the tribe tried to work with the state.

“Every time the Minnesota Department of Revenue requested a meeting on this issue, we came to the table to meet in good faith to offer innovative and creative solutions, which were consistently turned down by the state,” she said in the statement. “We were hoping that by engaging in good faith negotiations we would avoid the drastic measure that Gov. Dayton’s administration took on Easter weekend.”

Minnesota has the sixth-highest state tobacco tax rate in the nation — $2.83 per pack, including a $1.60 increase that went into effect last year.

A familiar fight

But the tribal tax dispute goes back earlier, to 2005, when Minnesota levied a 75-cent-per-pack “health impact fee” on cigarettes. Because it was a fee and not a tax, the state argued that it did not need to split the new revenue with the tribes, as it does with other state taxes.

The decision sparked a dispute that led several tribes to start selling untaxed, out-of-state cigarettes, including Leech Lake. The fee was replaced with an excise tax last year, Frans said.

While other tribes made agreements with the state, Leech Lake held out, selling out-of-state cigarettes with tribal taxes and funneling the money back into the community.

“The majority of revenue generated through tribal taxation is recirculated into funding tribal programs like health and wellness and small business lending,” the band said in its statement. “It provides alternative means for deriving income during difficult economic times.”

Transporting untaxed cigarettes into Minnesota is a violation of state law, subject to stiff fines. The state has already gone after Leech Lake’s supplier. Frans said the trucking company has agreed to stop shipping untaxed cigarettes to the tribe.

Monacan tribe one step closer to achieving federal recognition

A pageantry of color, drums, crafts and food unfolded at the 20th Monacan Indian Nation Powwow in 2012 near Elon.The Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2013 recently was passed out of the Senate Indian Affairs Committee to await a vote in the full U.S. Senate. If the legislation passes, it would grant federal recognition to six Virginia Indian tribes, including the Monacan Indian Nation. — A pageantry of color, drums, crafts and food unfolded at the 20th Monacan Indian Nation Powwow in 2012 near Elon.
The Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2013 recently was passed out of the Senate Indian Affairs Committee to await a vote in the full U.S. Senate. If the legislation passes, it would grant federal recognition to six Virginia Indian tribes, including the Monacan Indian Nation.

By Sherese Gore, NewEraProgress.com

The Monacan Indian Nation, Amherst County’s original inhabitants, now is one step closer to receiving federal recognition of its indigenous status.On April 2, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2013 was passed out of the Senate Indian Affairs Committee to await a vote in the full U.S. Senate. If the legislation passes, it would grant federal recognition to six Virginia Indian tribes, including the Monacan Indian Nation.The bill was introduced by Sens. Tim Kaine and Mark Warner.“The fact that they’ve never been recognized is a real injustice,” Kaine said.

The six tribes have a “long and well-known history but have been uniquely disadvantaged because they’ve never been federally recognized,” he said.

The 2013 bill follows many years of efforts by the Monacan Indian Nation to receive recognition from the federal government. Doing so would provide a host of benefits, including medical and educational services as well as tribal sovereignty.

The Monacans have resided in central Virginia for millennia, and today claim Bear Mountain in Amherst County as their cultural base.

In 1908, an Indian mission was formed at the base of the mountain, which provided a church and a school for the Monacan community.

Lee Luther JrFormer Monacan tribal council member Joseph Twohawks, shown here interacting with students at Rockfish River Elementary School in Nelson County, said gaining federal recognition can be a matter of pride. “For most people, you’ve called yourself something for all these many years, and now somebody with the powers that be agrees with it,” he said. — Lee Luther Jr
Former Monacan tribal council member Joseph Twohawks, shown here interacting with students at Rockfish River Elementary School in Nelson County, said gaining federal recognition can be a matter of pride. “For most people, you’ve called yourself something for all these many years, and now somebody with the powers that be agrees with it,” he said.

According to a former tribal council member Joseph Twohawks, federal recognition means different things to different people. To some, the recognition represents financial benefits. For others: pride.

Although the tribe has held state recognition since the 1980s, little has come from that aside from letters of apology and recognition; if you’re Native American with a tribal card, you can hunt and fish without a license, Twohawks said.

“For most people, you’ve called yourself something for all these many years, and now somebody with the powers that be agrees with it,” Twohawks said.

Gaining federal recognition is a “tough long process,” he said, that hasn’t been without its opponents.

According to Twohawks, the tribe first attempted to gain federal recognition through the Bureau of Indian Affairs, but the tribe only satisfied six of the BIA’s seven requirements that attempt to affirm historic and cultural tribal identity.

Establishing a historical identity is nearly impossible for Virginia Indians.

With the passage of Virginia’s Racial Integrity Act in 1924, a person could be classified as either “white” or “colored,” and the marriage and birth records of tribal peoples were altered.

Striving for congressional status has been met with roadblocks, as some legislators in recent years have been leery of Virginia’s tribes gaining federal recognition because of the fear that the tribes would establish casinos on their lands.

The 2013 bill satisfies that issue, according to Kaine. According to the bill, the six tribes “may not conduct gaming activities as a matter of claimed inherent authority or under any Federal law.”

Another issue that has hindered Virginia Indians from being recognized by the federal government is that they made peace too soon, Kaine said.

While the status of many of the nation’s western tribes is established because those peoples formed treaties with the U.S. government, the Monacans signed the Treaty of Middle Plantation of 1677 with the British, nearly 100 years before the Declaration of Independence, he said.

“Because they made a treaty with the English and not the American government, it has worked against them,” Kaine said.

But while the bill awaits time on the Senate floor, an irony exists outside its doors, Kaine said.

Blocks from the U.S. Capitol and resting inside the Smithsonian’s National Museum of American History is a diorama that explores the story of Virginia’s indigenous peoples.

“But we will not recognize living and breathing members of those tribes,” Kaine said.

DOJ’s ‘Operation Choke Point’ Infringes on Tribal Trust

By Barry Brandon, American Banker

Tribal sovereignty is the most valuable of all American Indian assets. Tribal governments’ inherent rights of self-government and self-determination are the foundation of tribal communities and tribal identity.

Tribal governments have worked hard to strengthen our partnerships with the federal government through self-determined economic development and the co-creation of new institutions, including the National Indian Gaming Commission, housed within the Department of Interior.

The relationship between tribal governments and the federal government goes beyond the DOI, however, to include Congress and the White House, which has a long-running formal policy of consultation with tribal governments. These complex and interdependent relationships, enshrined in the U.S. Constitution, are summarized as the “trust relationship” or even “trust responsibility,” so named because it captures the special fiduciary responsibility by the federal government towards tribes.

Recently, however, the relationship between some tribal governments and a particular division of the federal government, located in the Department of Justice, has been severely damaged by an internal campaign known within the DOJ as “Operation Choke Point.”

This behind-the-scenes attempt to shut down legal tribal businesses has disrupted our long-held tribal-federal partnership. It represents a total departure from more than a century of respect for, and engagement with, tribal governments as partners and co-regulators on issues ranging from law enforcement to economic development to education.

At issue in the short term are the legal, licensed and regulated e-commerce lending services that many tribes have established. What is at stake, however, is the long-term viability of the trust relationship itself.

In other economic ventures such as gaming, tribal governments have found strong opposition from state governments who see us as a competitor or, worse yet, as a willful violator of state regulations. It thus disturbs tribal governments that, in the case of legal online lending, the DOJ – our supposed federal partner – continues to attack and undermine our legal businesses.

As a member of the “federal family,” the DOJ has a mandate to exercise their trust responsibility to tribal governments. They have a responsibility to do this in a way that protects tribal businesses engaging in honest business practices, as ours do.

Like gaming enterprises operated by tribal governments, our online lending businesses are legally owned, operated and regulated under tribal regulatory authority. They are created pursuant to tribal law and our authority to create them is acknowledged in the Dodd-Frank Act. As with gaming, we have created partnerships with the federal government and federal regulatory bodies to ensure that consumers across the country have access to the services they need in a way that also drives economic growth on reservations.

Thus, we support and echo the concerns of House Oversight Committee Chairman Darrell Issa, as reported in American Banker, that the Justice Department’s dragnet does appear to be an effort to stomp out all short-term lending, including legal tribal government-owned enterprises.

In light of the fact that the Dodd-Frank Act treats tribes as states in the context of financial services, tribal governments have created the Native American Financial Services Association to collectively establish a model for self-regulation, and we have sought meaningful consultation with federal regulatory bodies to strengthen and operationalize our relationship as co-regulators.

In an election year, however, the successful negotiation of a co-regulatory environment is not deemed as newsworthy as “choking off” legal tribal businesses. It is this abandonment of the federal-tribal trust relationship that has allowed “Operation Choke Point” to run amok and allowed legislators to blindly prop it up.

In the wake of this abandonment, rather than focusing on the true bad actors in the industry, “Operation Choke Point” is having the opposite effect. As the DOJ’s blanket actions continue to choke the illegal businesses, they also drown the legal ones, like ours, leaving consumers further underserved and tribal communities further isolated. At NAFSA, we will continue fighting to strengthen our tribal laws and regulations, work with our federal partners and educate state governments about our legal right to offer these businesses.

We can only hope that the DOJ, as a member of the “federal family,” will abide by their obligation to consult with us before taking unilateral actions, especially those that do not consider our special “trust” relationship and damage the fragile economic strides we are seeking on isolated reservation lands.

TCC convention speaker blasts governments’ treatment of Natives

By Jeff Richardson, Fairbanks Daily News-Miner

FAIRBANKS — A colonial attitude and lack of tribal sovereignty are contributing to an “unconscionable” record for Alaska Native justice, the head of the Indian Law and Order Commission told a Fairbanks audience on Tuesday.

Attendees watch on a television in the hallway as Keynote speaker Troy A. Eid, Chairman of the Indian Law and Order Commission, speaks at the Tanana Chiefs Conference Annual Delegate and Full Board of Directors Meeting Tuesday, March 11, 2014 at the Westmark Hotel.

In a fiery speech at the Tanana Chiefs Conference convention, Troy Eid blasted the state and federal governments for treating Alaska Natives like second-class citizens. The result, he said, has been an ineffective and unequal system for the state’s indigenous people.

“You are not stakeholders,” Eid told TCC delegates at the Westmark Hotel. “You are members of sovereign governments.”

Eid received a standing ovation following his remarks, which were the keynote speech for a conference with the theme “The time is now.” Eid’s independent commission was created in 2010 to review the justice system for American Indians and Alaska Natives and report its findings to President Obama and Congress.

The report, which was released last November, gave a dismal review of Alaska’s system.

Eid, a former U.S Attorney for Colorado, called the status of Alaska Natives a “civil rights crisis.” A fourth of Alaska Native youth suffer from post-traumatic stress disorder, he said, the same rate as military veterans returning from Afghanistan. Suicide rates in Alaska rival those in Haiti, one of the poorest countries in the world.

Alaska has domestic violence rates 10 times higher than the national average, and 12 times higher against women, Eid said.

He said lawmakers in Juneau and Washington could help change that.

The first step, he said, is to stop excluding Alaska Natives from federal legislation that protects Native Americans in other parts of the country. Eid dismissed the argument that the Alaska Native Claims Settlement Act requires that Alaska Natives be treated differently than their counterparts in the Lower 48.

“They’re laws Congress made and Congress can revisit it. … It’s not as if these are immutable, unchangeable laws,” he said.

Eid also criticized the state for battling against tribes who want local courts and police, saying that local efforts to combat crime often prove more effective. Tribal courts are now limited to family issues, such as child custody and adoption.

“It is time for the state of Alaska to stop fighting against Alaska Natives,” he said.

Following the remarks, Fort Yukon Chief Steve Ginnis asked delegates to consider a resolution that would ask the federal government to treat Alaska Natives under the same civil rights legislation as other Native Americans.

President Jerry Isaac echoed the comments.

“It’s undoubtedly a long struggle with the tribes in Alaska to be recognized in a place that they deserve,” he said.

Sen. Lisa Murkowski, who spoke by videoconference with TCC delegates, was asked if she would pledge to support such a resolution. She said ANCSA has set up a system which creates a special distinction for Alaska Natives, and that identical legislation for Alaskans and those in the Lower 48 isn’t always possible.

However, Congress needs to make sure the end result shouldn’t be unequal treatment for Alaskans, she said.

“We need to be sure that Alaska Natives are treated justly and fairly, as are all Natives,” Murkowski said.

Yakamas to regain full authority on tribal land

Gov. Jay Inslee on Friday signed a proclamation that returns almost all civil and criminal authority over tribal members on the reservation back to the Yakama Nation. The next required step, before this can take effect, is federal approval.

By Kate Prengaman

Yakima Herald-Republic

OLYMPIA, Wash. — In what tribal leaders call a historic development, Gov. Jay Inslee on Friday signed a proclamation that returns almost all civil and criminal authority over tribal members on the reservation back to the Yakama Nation.

Tribal Council Chairman Harry Smiskin said the signing is not only “historic” but the first of its kind in the country.

Yakama Nation Tribal Council Chairman Harry Smiskin

“The biggest benefit is that we have the right to determine our own destiny and our own laws,” Smiskin said earlier this week.

But the deal is not done yet. The proclamation needs federal approval, which Smiskin said will probably take another year or so working with the government on final details, including financial support for both law enforcement and civil authority over social issues like school truancy and child and family services.

The Yakama Nation is a sovereign nation that has the authority to govern itself under the treaty signed in 1855 with the federal government. The Nation already has its own police department and jail and has always had some criminal authority over tribal members.

In 1953, under Public Law 280, Congress gave states the authority to take more civil and criminal control over Indian lands. In 1963, Washington’s state government asserted jurisdiction over school attendance, domestic relations, mental illness, juvenile delinquency, adoption, public assistance, and motor vehicle operation on tribal lands.

In 2012, the Legislature created a process for tribes to apply to get that lost authority returned. The proclamation is the result of the Yakama Nation’s petition. A busload of tribal members travelled to Olympia for the ceremony.

The Yakama petition, which was filed in 2012, asked the state to retain authority over mental illness as it arises in the courts and civil commitment of sexually violent predators, but return the rest of the authority taken in 1963.

The state retains jurisdiction over criminal or civil cases that involve non-Indians, even if a tribal member is also involved.

Yakima County Commissioner Kevin Bouchey said that was the county’s main concern, and he was pleased that to see the state retained that authority.

Smiskin said he encouraged the tribe to pursue the move — known as retrocession — because he’d seen the benefits when he worked with the Colville Tribe on the issue in the 1980s.

Criminal jurisdiction was returned by the Legislature for the Colvilles and several other tribes then, but Smiskin said that he used what he learned from that process to improve the Yakamas’ move to regain authority, including civil jurisdiction.

Now that Inslee has signed the proclamation, it goes to the federal Bureau of Indian Affairs for review before it will take full effect.

In preparation, the Yakamas already signed memorandums of understanding with the cities and counties that overlap the reservation.

For example, if a tribal member is pulled over on the reservation for speeding by a sheriff’s deputy, the officer will transfer the driver over to a tribal officer, Bouchey said.

Yakima County Sheriff Ken Irwin called the retrocession a “work in progress” and said that he still doesn’t know the final details about how the BIA and the Yakama Nation are going to handle some issues, including major crimes, but he respects the process.

“They have some steps left,” Irwin said. “In the meantime, it’s business as usual and we are working together very well.”

A spokeswoman for the Department of Social and Health Services referred questions about the retrocession process to the governor’s office.

A governor’s office spokeswoman said the state doesn’t intend to start planning for the transition in jurisdiction until after the retrocession secures federal approval.

Chairman of law and order panel says Alaska should stop fighting tribal rights

Chair Troy Eid, right, addresses the audience as fellow commissioners Ted Quasula, left, and Carole Goldberg of the Indian Law and Order Commission review a section of their report at the 23rd Annual BIA Tribal Providers Conference on Wednesday, December 4, 2013, at the Dena'ina Civic and Convention Center. ERIK HILL — Anchorage Daily New — Chair Troy Eid, right, addresses the audience as fellow commissioners Ted Quasula, left, and Carole Goldberg of the Indian Law and Order Commission review a section of their report at the 23rd Annual BIA Tribal Providers Conference on Wednesday, December 4, 2013, at the Dena’ina Civic and Convention Center. ERIK HILL — Anchorage Daily New

By RICHARD MAUER rmauer@adn.com

Anchorage Daily News December 4, 2013

In the three weeks since the U.S. Indian Law & Order Commission chastised Alaska for opposing Natives who want their own village cops and courts, chairman Troy Eid says he’s been called a radical and an outsider who shouldn’t be sticking his nose where it doesn’t belong.

Eid swept aside such criticism Wednesday when the commission officially presented its report in Anchorage. He declared that Alaska “was on the wrong track” and that public safety and security were so bad in rural Alaska, especially for women and children, that it had become a national disgrace.

“I don’t claim to be an Alaskan,” said Eid, the former U.S. Attorney for Colorado, “but I know injustice when I see it.”

Speaking to a crowded room of mainly Alaska tribal officials and Native rights advocates at the 23rd annual Bureau of Indian Affairs Tribal Providers Conference, Eid was interrupted by applause almost every time he called on the state to acknowledge sovereignty here.

“There ought to be a recognition of tribal sovereignty as THE force that will keep people safer — and why not?” Eid said. “It’s what we do everywhere else in the United States. We recognize local people should be able to govern themselves, make their own decisions, that they should not be fighting with their states.”

A life-long Republican, Eid said it wasn’t a matter of politics, though opponents of the report have tried to portray it that way. “I would hold my conservative credentials to (Attorney General Mike Geraghty’s) or the governor’s anytime,” he said.

The nine-member Indian Law & Order Commission was established by Congress in 2010 and directed to report back to Congress and the President on its findings after holding hearings and meetings around the country, including Alaska.

The report, released Nov. 12, was mainly about the successes and failures of reservation justice programs and recommendations on new policies and laws.

But the panel singled out Alaska in a special 30-page chapter. It accused the state of falling behind the rest of the country in providing a secure environment in Bush villages.

“What’s so shocking about Alaska is that you have the most rural state in the country and you have the most centralized law enforcement in terms of how the state provides — and fails to provide — services,” Eid said. “We cling to this model because we know it and because there’s a lot of perverse pleasure taken in controlling the lives of other people … The colonial model, which is alive and well in Alaska, does not work.”

Eid and panel members Carole Goldberg of the UCLA School of Law and Ted Quasula, a former BIA police officer from Arizona, said Alaska should recognize tribal authority, not fight it.

Tribal courts exist in Alaska, but they mainly handle adoption and other family matters. The state recognizes their jurisdiction over village members, but recently challenged a decision by the Minto tribal court that stripped a convicted wife beater of his parental rights, arguing that the court exceeded its authority because the man was enrolled in another village.

Eid and Goldberg had sharp criticism for the Alaska Native Claims Settlement Act of 1971, the law that paved the way for the trans-Alaska pipeline by settling Native land claims and establishing regional and village corporations in place of reservations. While supporters of the act, like the late Sen. Ted Stevens, R-Alaska, have described it as forward-looking legislation designed to integrate Alaska Natives into the dominant economy and culture, Goldberg said it was the “last gasp of termination policy” designed to separate Natives from their traditional lands.

Laws passed since then have recognized Native American tribal authority, though often, as in the Violence Against Women Act, Alaska was written out of the legislation, they said.

“Alaska has been left behind because of the Alaska Native Claims Settlement Act,” Goldberg said.

Eid said he has heard the law described in almost reverential terms, as if it had been “set in stone” and handed down like tablets.

In fact, he said, the law has been amended 35 times since passage, and it should be changed again to bring “Indian country” — and Native sovereignty — to the thousands of acres of land owned by Alaska Natives, villages and other Native entities.

“Attitudes change, people can change, people can learn,” he said.

Eid said that when he arrived at his room in the Hotel Captain Cook Tuesday night, there was a six-page letter in an envelope on his pillow. It wasn’t a love note, but a hand-delivered defense of Alaska’s position by Geraghty, the state Attorney General.

Eid noted that Geraghty acknowledged that public safety was deficient in Alaska’s villages, but opinions diverged after that. Geraghty said that increasing the power of tribal courts and police, using the reservation model, would subject non-Natives to a justice system they had no power to affect democratically.

“The report does not explain how non-Native residents in these communities will participate in … tribal self-governance given that they have no right to vote on tribal laws or participate in electing tribal leaders,” Geraghty wrote. Since ANCSA’s passage, he said, “Alaskans have been free to reside in any Alaska community and expect to be governed by a uniform system of criminal laws.”

But Eid said that was no more relevant than he, as a voting resident of Colorado, being subject to Alaska criminal law while visiting here. If he broke the law, he said, he would expect Alaska courts to be fair to him even though he can’t vote here, just as he would expect tribal courts to fair with non-Natives in their villages.

Geraghty also referenced the Parnell administration’s secret plan to bring a measure of self-determination to some villages. As outlined by Gov. Sean Parnell to the Alaska Federation of Natives convention in October, the proposal would allow tribal courts to hear misdemeanors as civil, not criminal cases, with culturally attuned punishment or rehabilitation — but only if the defendant agreed.

Geraghty said in an November interview that he couldn’t provide a copy of the proposal he had given the Tanana Chiefs Conference because it was subject to negotiations.

“Has anyone seen this thing?” Eid asked the room Wednesday. No one had. He and Goldberg said the negotiations were doomed if the state didn’t treat the Interior villages as sovereign governments.

Reach Richard Mauer at rmauer@adn.com or 257-4345.

The Myth Of The Casino Cash Cow For Native Americans

Contrary to popular stereotypes about tax-exempt gambling profits on reservations, most Native Americans struggle to make ends meet.

The Fond-Du-Luth Casino in Duluth, Minnesota. (Photo/Michael Hicks via Flickr)

By Katie Lentsch

October 23, 2013 MintPressNews

Today’s casinos of flashing lights and slot machines in smoke-filled rooms attract high rollers and bad losers. Many see casinos as a lucrative business for Native American reservations — but does this myth of money-making match reality?

Twenty-five percent of the U.S. population aged 21 and over visited a casino and participated in gambling in 2010. In that year alone, U.S. casinos enjoyed revenues of $34.6 billion, according to the American Gaming Association.

It’s a common assumption that the gaming industry is a cash cow for Native Americans, especially since the U.S. Supreme Court ruled in 1976 that as part of tribal sovereignty, state tax and regulatory laws do not necessarily apply to Native Americans living on reservations.

Tribal sovereignty refers to tribes’ right to govern themselves, define their own membership, manage property, and regulate tribal business and relations while recognizing a government-to-government relationship with states and the federal government. But despite tribes’ independence and exemptions, the Native American population as a whole comprises the minority living with the largest disparities in health, education and income in the United States.

The unemployment rate on some reservations can reach as high as 75 percent, with nearly 10 percent of all Native families being homeless. For some of those families who do have homes, they may lack electricity or running water, Liberation news reports.

Gaming has helped raise tribal communities out of poverty by providing funds for housing, schools, health care and education, as well as stable jobs for community members, but according to the Native American Rights Fund, of the estimated 560 federally recognized American Indian nations, only 224 are involved in gaming. Tribes who are geographically located on rural, unpopulated land may never take part in the industry, while those who reside near major urban areas benefit the most from gaming operations.

Can tribal sovereignty exist within a city?

The Fond du Lac Band of Lake Superior Chippewa not only has a casino on its reservation in northern Minnesota, but one that is located 20 miles to the east in downtown Duluth. With the “Fond-du-Luth” casino establishment located outside of the reservation, issues pertaining to tribal sovereignty and gaming revenues are currently being disputed by city leaders.

The Minneapolis Star Tribune reports that because Fond-du-Luth is outside the reservation, a 1994 agreement was enacted, stating that the casino would pay a 19 percent “rent” of its gross income for 25 years and an unspecified rate for the following 25 years to the city in exchange for services. This provided Duluth with around $6 million income annually from the Fond du Lac band, but in 2009, the band stopped paying.

Karen Diver, chairwoman of the Fond du Lac band, said payments were halted when it began questioning the legality of the agreement. After asking the National Indian Gaming Commission to review the 1994 consent agreement, it found the agreement violated the Indian Gaming Regulatory Act, which requires tribes to have “sole proprietary interest” for tribal casinos.

The band negotiated a payment-per-services model, covering services like law enforcement and fire protection, but a U.S. District Court judge ruled this month that $10.4 million is owed from the Fond du Lac band’s halted payments from 2009 to 2011, which the band might be able to appeal.

The issues that arose in Duluth were similar to those when New York Gov. Andrew Cuomo (D) was onboard for a plan to build casinos under the Seneca Nation in Rochester and other areas upstate.

Initially, like Fond-du-Luth, there was discussion of the state government receiving a negotiated piece of the casino’s gross intake, but the sovereignty issue again posed question.

“How could you put a sovereign nation in the middle of your downtown?” said Lovely Warren, Rochester city council president.

Steve Siegel, formerly of the College of Hospitality and Tourism Management at Niagara University, told Rochester City Newspaper that most of the time, when a tax-exempt casino is placed on what is claimed to be sovereign land within an urban setting, all of the gain goes to the casino complex.

“Local businesses are devastated because they can’t compete with this massive nontaxable entity,” Siegel said.

Native Americans are still Americans

Although the casino institutions themselves are not federally taxed, in 2006 the IRS issued a bulletin stating that individual Native Americans, especially those living outside of a reservation, are still subject to federal income tax every year.

More than seven in ten Native Americans and Alaska Natives now live in metropolitan areas, and 27 percent live in poverty, according to the Census Bureau.

The bulletin states:

“While there are numerous valid treaties between various Federally Recognized Indian Tribal Governments and the United States government, some of which may contain language providing for narrowly defined tax exemptions, these treaties have limited application to specific tribes … Taxpayers who are affected by such treaty language must be a member of a particular tribe having a treaty and must cite that specific treaty in claiming any exemption. There is no general treaty that is applicable to all Native Americans.”

Even so, many Native American families subject to treaties are still not exempt from taxes. The IGRA has provisions that permit tribes to make per-capita distributions from gaming activities to tribe members and the community. But according to the bulletin, “Under the Indian Gaming Regulatory Act, any distribution of casino gaming proceeds to individual tribe members is also subject to federal income tax.”

Essentially, Native Americans are living in a nation where the majority of its population is struggling to make ends meet. They face taxes and economic strife while trying to support their families. Some may sit more comfortably than others, but the late-night hours from visitors at the slot machines or blackjack tables don’t quite live up to the dream.

Photo of the Week: Federal Marshals Showing Up on Tribal Land Shows How Vulnerable Tribal Sovereignty Is

US Marshal vehicles out in front of the Jack Brown House on Monday evening.

Source: Native News Network

TAHLEQUAH, OKLAHOMA – In the age of social media, it is sometimes difficult to separate fact from fiction. So much misinformation gets sent out in social media.

So, Monday evening when news began to emerge that federal marshals were on their way to pick up Veronica Brown from her biological father’s care, we at the Native News Network decided to send a photographer to Tahlequah to capture photos of the events.

There were several rumors out there. One was the tribal lands were “locked-down” by Cherokee Nation marshals and no visitors would be allowed on to tribal land. Yet, there went out a call to get as many American Indians up to the filed outside the Jack Brown House, where Dustin Brown and his family, including Veronica, were staying.

By the time our photographer arrived outside the Jack Brown House, there were some US marshal vehicles were already there. Additionally, there were vehicles that belonged to the Cherokee Nation.

By the time the transfer took place some 15 law enforcement vehicles were there.

Our photographer, Linda Sacks, sent some photos from outside the Jack Brown House from her cell phone.

Soon the photo that became our Photo of the Week was posted on our facebook page. Reaction from our readers was swift. One reader posted on our Facebook this comment:

“18 UNITED STATE CODE § 1151 “INDIAN COUNTRY!” and note: there has been NO Federal Court order.”

During the next intervening minutes word came Veronica was taken from her biological father and his family.

The Photo of the Week is a reminder that tribal sovereignty is very vulnerable at best. It would take Indian law scholars to explain how it is federal marshals can come onto tribal land and take an Indian child.

In challenging tribal court, Alaska state goes to bat for man convicted of beating his wife

August 25, 2013 Anchorage Daily News

By RICHARD MAUER — rmauer@adn.com

Earlier this month, when Edward Parks was convicted in Fairbanks of the kidnapping and brutal assault of his girlfriend, the prosecutor told a Fairbanks reporter it was a victory in the “state’s larger war against domestic violence.”

But three months earlier, with Parks sitting in jail awaiting trial for beating Bessie Stearman so badly he broke three of her ribs and collapsed one of her lungs, the Parnell administration intervened on his behalf before the Alaska Supreme Court. In a case that’s still pending, the state government is seeking to void a tribal court order declaring him an unfit parent.

For Natalie Landreth, a Native-rights attorney representing the adoptive parents of one of Parks’ children, the state’s move was an outrageous example of attaching greater importance to its political fight against tribal rights than the protection of the child, who is now 5.

“Why on earth would you step in to defend someone’s right to access a child when he has just been convicted of almost murdering the mother?” Landreth said.

Attorney General Michael Geraghty said the state is intervening on Parks’ side to protect Parks’ constitutional rights, not get his child back.

“I guess I can understand to a lay person how it might appear that we’re supporting Mr. Parks, but I don’t think that’s the case. We’re supporting his due process rights as we would with any other Alaskan,” Geraghty said. “That doesn’t mean we think he’s a good guy, that he should be a parent or that he’s entitled to custody of his kids.”

Parks has his own attorney to defend his rights and the state’s entry into the case on his behalf was optional, Geraghty acknowledged, but he said the state chose to file its own brief in the Alaska Supreme Court because the case was bigger than Parks.

At issue is whether a small tribal court in the village of Minto, 130 road miles west of Fairbanks, could strip Parks of his parental rights to one of his daughters, named “S.P.” in legal filings, and approve her adoption by Jeff Simmonds, the cousin of the child’s mother, and Simmonds’ wife Rozella. According to court filings, S.P. is a member of the Minto tribe, as is her mother, Stearman, the victim of Parks’ rage. Jeff Simmonds is also a Minto tribe member, while Rozella Simmonds is a Zuni Pueblo Indian from the Southwest.

One of Parks’ parents is Alaska Native and Parks himself is an enrolled member of the tribe at Stevens Village, about 60 miles north of Minto on the Yukon River, according to the court filings.

To the state, that meant that the Minto court was trying to enforce its order against a nonmember of its tribe. The Minto court’s declaration on May 7, 2009, that Parks was an unfit parent was improperly reached, the state said in its brief to the Alaska Supreme Court, filed in April.

The proper venue for that question is before a state judge in Fairbanks, not the elders of the Minto court, the state said.

Landreth, from the Native American Rights Fund office in Anchorage, said the state is overreaching and ignoring the years of legal precedent since Congress passed the Indian Child Welfare Act in 1978.

‘sovereignty issues are current issues’

Alaska, like other Western states with significant Native American populations, has had a contentious history with tribal rights. The federal government recognizes more than 200 tribes in Alaska — most of them small, rural villages — and they form parallel governments to the municipalities under state law, and the state itself — at least for duties and rights granted by Congress. Native rights are based in the U.S. Constitution and in aboriginal-rights doctrine subscribed to by the United States. Tensions over tribal sovereignty have grown or subsided, depending on who was governor and what issues were hot at the time.

“Certainly tribal sovereignty issues are current issues, they’re topical issues, I agree with that,” Geraghty said. But the decision to intervene on Parks’ behalf against the Minto tribal court was about Parks’ legal rights, not an effort by the state to restrict tribes.

Landreth doesn’t see it that way. By declaring that Parks shouldn’t be bound by the tribal court even though his daughter, his daughter’s mother, and one of the adopted parents are tribal members, the state is trying to make new, impractical law, she said.

“The legal term for that kind of argument is ‘Just Silly,'” Landreth said. “Tribes, especially in Alaska, are so small that nobody’s going to marry someone in their own tribe because they’re mostly related within two degrees of blood.”

If both parents have to be members of the same tribe for a tribal court to have jurisdiction under the Indian Child Welfare Act, that would foreclose a decision in almost every case except those involving the largest tribes in the state, like the Tlingit-Haida people, she said.

QUESTIONS OF JURISDICTION

S.P. was born in Fairbanks in 2007. At the time, Bessie Stearman, her mother, was on probation for drug charges, according to the filings with the Supreme Court. By the following January, Parks had been jailed on an assault charge for breaking Stearman’s finger “in a dispute relating to the trimming of S.P.’s fingernails.” The attack came to the attention of a tribal social worker.

In May 2008, with Parks working on the North Slope, Stearman was jailed for probation violations. She asked Rozella Simmonds to care for S.P.

Parks found out, quit his job, and returned to Fairbanks. He learned that the Minto tribal court had granted temporary, emergency custody to the Simmondses, and agreed to that arrangement at least for the time being, though he preferred placing the baby with his mother instead.

Over the course of the next year, the tribe held more hearings and set up a visitation schedule for S.P. with Parks and Stearman. The couple continued in their relationship and eventually had three more children, including a set of twins.

“Yeah, she went back to him,” said assistant District Attorney Andrew Baldock. “As domestic violence cases go, it’s not unusual for that sort of thing to happen.”

Parks got a lawyer, Don Mitchell, an Anchorage attorney who has written extensively about Native law — and who has a problem with tribes as legal entities in Alaska.

Parks demanded that S.P. be returned to him. He accused the tribe of kidnapping her. On May 5, 2009, he “abducted” S.P. from the Simmondses, according to Landreth’s petition. The Alaska Office of Children’s Services, with the help of Fairbanks police, returned S.P. “to her tribal foster home,” Landreth wrote.

Two days later, the tribal court convened again, this time in a hearing to terminate the parental rights of Stearman and Parks. The court met in Minto. Stearman, Parks, Parks’ mother and Mitchell participated over a speakerphone in the Tanana Chiefs Conference office in Fairbanks.

Parks told the court it had no jurisdiction over him. Mitchell wanted to speak on Parks’ behalf, but was told by a “court facilitator” — a clerk of sorts — that lawyers are only allowed to advise their clients and submit written documents, not make oral arguments.

The court allowed the interested parties to speak, went into closed session, and returned with its verdict: S.P.’s parents were unable to provide a “violence-free environment” and were not fit as parents. The child would continue to live with Stearman’s cousin and his wife.

LEGAL PROTECTIONS

Parks and Stearman filed suit in Superior Court in Fairbanks on Sept. 17, 2009, trying to get S.P. back. Mitchell originally represented him. The judge, Paul Lyle, refused Landreth’s request to dismiss the case, ruling that Parks was denied due process by the Minto court.

While the case was kicking back and forth between Lyle’s court and the Alaska Supreme Court, Parks lost control again, this time apparently worse than at any other time.

On Dec. 18, 2011, according to the Fairbanks News-Miner, Parks took Stearman to an area near South Cushman Street in Fairbanks and began beating her. He brought her home, tied her with a belt, and kicked and choked her some more. Parks held her for two days, refusing to take her to the hospital until she promised not to call police.

“There were some very small children that were in the residence,” Baldock, the prosecutor, said in a telephone interview. “She was not physically able to go to the hospital — she had a collapsed lung and a couple broken ribs and the children were just kept in the other room away from her.”

But not S.P. She was safe with Jeff and Rozella Simmonds.

Parks was arrested. On Feb. 9, 2012, a Fairbanks grand jury handed up a seven-count indictment that included two kidnapping charges. Another count was for witness tampering. From his jail cell, Parks continued to try to get Stearman to not testify against him, Baldock said. Parks also used delaying tactics to put off the trial, apparently believing Stearman would change her mind, Baldock said.

It didn’t happen. She testified against him. After a one-week trial, the News-Miner reported, he was convicted Aug. 12 on all counts.

Baldock said he was carrying out state policy to aggressively pursue domestic violence cases under Gov. Sean Parnell and Attorney General Geraghty’s “Choose Respect” campaign.

“I can’t speak anything about the civil stuff,” Baldock said, referring to the state’s role in the Minto tribal case, “but certainly from the attorney general on down, there’s a real impetus in making sure that these kind of cases are handled appropriately.”

The civil lawsuit had ground along as Parks waited for trial in his jail cell in Fairbanks. The state intervened on his behalf April 26.

“Having the government in your corner is certainly a useful situation for any litigant,” said Mitchell, Parks’ attorney. “I viewed it as a helpful development.”

Mitchell had to drop out of the case because he had represented both Stearman and Parks, and they had become adversaries in the criminal case. Each now has their own attorney in the civil case. He still believes it was right to pursue the lawsuit.

“At the heart of this problem is the fact that every single person who lives in a village is a citizen of the state of Alaska who is entitled to have access to the same procedural and substantive protections as any other citizen of Alaska, and that has been thrown out the window in the political enthusiasm for the invention of Indian tribes in Alaska and the further invention of tribal courts,” Mitchell said.

But Landreth said the tribal court got it right years before.

“Respondent now has 43 criminal entries on Court View,” she wrote in 2012 in her second petition to the Alaska Supreme Court, referring to Parks’ record in the state’s on-line court database. “As this case has progressed, the wisdom of the Minto Tribal Court’s decision to place S.P. in the Petitioners’ (Simmondses) stable home has become even more apparent.”

The matter is pending in the Alaska state courts. Parks is due to be sentenced in February.

Reach Richard Mauer at rmauer@adn.com or 257-4345.