Tribal Sovereignty Archives - Page 3 of 3

Idle No More event in Seattle for Veronica Brown

The Idle No More Washington Facebook page has arranged a rally for supporters of Veronica Brown, the Indian Child Welfare Act and the 1839 Cherokee Constitution Signing. The rally is set to coincide with these happenings going on within Indian country and other rallies currently happening around the country. The event page states:

In solidarity with the Cherokee Nation of Oklahoma we are gathering to celebrate the signing of the Cherokee Constitution. The celebration pays homage to the tribe’s strength. It also pays tribute to the past, when the Cherokee’s were driven from the Deep South on the “Trail of Tears.” On this Signing Day, they’ll be saluting Veronica too.

Please join us to take a stand for the Indian Child Welfare Act and why the Supreme Court trying to overstep the sovereign rights of Native peoples must be stopped. Support the Brown family in the return of their daughter. This is a peaceful rally; bring your drums, songs, and prayers.

Idle No More Washington – Standing Our Ground for Veronica Brown

Monday September 2, 2013

From 1pm -3pm

Westlake Park

401 Pine Street

Seattle, WA 98101

Visit the Facebook event page here for more information-

https://www.facebook.com/events/1377084135854267/?refid=13

Tribes in Western U.S. Use Water to Assert Sovereignty

The Confederated Salish and Kootenai Tribes in Montana stand to become the first tribes in the country to own a major hydroelectric dam. In Colorado, tribes are managing parts of hydro projects. All are examples of tribes regaining control of resources on their land. Aspen Public Radio’s Marci Krivonen reports.

Credit Marci KrivonenThe Kerr Dam in Northwest Montana was built in the 1930's on the Flathead Indian Reservation. It's been owned by non-tribal companies since it was built. — Credit Marci Krivonen
The Kerr Dam in Northwest Montana was built in the 1930’s on the Flathead Indian Reservation. It’s been owned by non-tribal companies since it was built.

By MARCI KRIVONEN

July 15, 2013

Aspen Public Radio

In Colorado’s southwest, the Ute Mountain Ute tribe co-manages part of the Dolores Water Project. And, near Durango, the Animas/La Plata project is partially managed by the state’s two tribes. Ernest House directs the Colorado Commission of Indian Affairs.

“Not only do these water projects strengthen tribal sovereignty, but they also solidify a treaty obligation to the Utes here in Colorado. I think that by the tribe’s involvement in a lot of these projects, it provides a very important tool for future economic development, especially, specifically, water,” he says.

While the project is different, the goals are similar in Montana. When the tribes take over the dam there, they say, their sovereignty will be strengthened.

Jordan Thompson of Energy Keepers Inc. stands high above the Kerr Dam outside of Polson, Montana. The tribes in this area are preparing to take over the hydro project in 2015.

The massive Kerr Dam in Montana is near snowcapped mountains, close to ancient buffalo hunting grounds. Emerald green water violently sloshes over the lip of the dam and into the Flathead River. To say the area’s beautiful, is an understatement.

A 19th century treaty created the Flathead Indian Reservation, and later, white settlement brought agriculture. The massive dam was built on tribal land by a local power company in the 1930’s to quench the thirst of newly planted farms.

“This is a place of great spiritual significance for the tribes, and so when the dam was being built, they really resisted, they were trying to not have that dam built,” says Jordan Thompson.

Thompson’s with the tribally-run company that’s preparing to take over ownership of the dam. Despite tribal protests in the 30’s the dam was built and has been producing electricity ever since..

“There were just a bunch of people who built it, over 1200 people at one point. Ten tribal members were killed during the construction of it. It was built because the tribes were just powerless to do anything to stop it,” Thompson says.

Over the years, the dam supplied millions of dollars worth of power. The tribes received a small portion, as rent. Fish habitats were damaged, as the dam continued to generate electricity.

Now, the dam is about to change hands. A treaty signed in 1985 transfers ownership of the dam to the Salish and Kootenai.

“This is significant because it’s an assertion of the tribes sovereignty over the resources they’ve used for their entire existence,” says Sarah Bates with the University of Montana.

She studies water, natural resources and tribal lands. She says what the Salish and Kootenai are doing is a model for other tribes in the U.S.

“It’s happening around the country, this is something that tribes have the capacity to step up and play not just a stakeholder role, but actually an owner and management role. When they aren’t just participants in a process, but actually gain authority over those facilities, that’s a major step forward in asserting and realizing their sovereignty.”

Tribes in Oregon and New York state are now attempting to gain control of hydroelectric projects.

The 1000 foot boardwalk takes you to an overlook of the Kerr Dam, which stretches 540 feet across and 200 feet high.

The Kerr Dam is run by the company PPL Montana and the tribes are still negotiating the purchase price. PPL Montana values the dam at about $51 million, while the tribes say the number is closer to $16 million. Once the issue is resolved, tribal members plan to take over the dam in September of 2015.

This story is the result of an environmental fellowship put on by the Institutes for Journalism and Natural Resources.

Deaf, Dumb and Blind Justice: Thomas Is Wrong on Tribal Sovereignty

Mark C. Van Norman

July 14, 2013 ICTMN

In the Baby Veronica case, Associate Supreme Court Justice Thomas writes that the Indian Child Welfare Act is unconstitutional because it is not “commerce” in the sense of “trade.” Domestic relations, he says, are left to the states. When it comes to American Indians, Native Nations and the Constitution, Thomas is wrong. The Constitution’s Treaty, Commerce, Supremacy, Apportionment and Property Clauses, the War Powers, and the 14^thAmendment are the foundation for the Indian affairs powers and the United States’ nation-to-nation relations with Native Nations.

The starting point for analysis is always: Indian nations and tribes were independent, sovereign nations prior to the formation of the United States. Indian nations managed native justice systems, economies, education, health care, and domestic relations. In the earliest Indian treaties, the United States extended its protection to Indian nations—for example, the Cherokee Nation Treaty of 1785 provides that: “[t]he Indians for themselves and their respective tribes … do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whosoever.” The United States intended this provision to oust the British from North America, yet it must be read as the Cherokee Nation would have understood it—a pledge of protection for the Native Nation, not U.S. dictatorship, tyranny or despotism. Thomas Jefferson recognized that Native Nations were governed by native traditions, customs, and laws.

The Articles of Confederation, America’s original governing document, provides that:

The United States in Congress assembled shall also have the sole and exclusive right and power of … regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.

Articles of Confederation, Art. XI (Passed by Continental Congress 1777, ratified 1781–1789). In practice, this allocation of power was not practical because the grant of authority to Congress was too qualified and the states continued to claim concurrent power over Indian affairs. The weakness of the Indian Affairs power was exemplary of the overall problems for the United States under the Articles of Confederation. This provision does not inform the Constitution by reserving state’s rights in the field of Indian affairs.

General George Washington chaired the Constitutional Convention, and contrary to Justice Thomas’s suggestion, he did not carry forward the Articles of Confederation. In partnership with Franklin, Jefferson and others, Washington and his party of Federalists, Jay, Hamilton, and Madison, rewrote the Constitution to ensure the success of the United States of America as one Nation. Washington made sure that the Federal Government had plenary authority—vis-à-vis the states—over Indian affairs (and other areas of Federal authority). Washington sought to forestall brushfire wars along the United States border because he knew that American citizens, who encroached on Indian lands and “endangered” the peace of the Union by violating Indian treaties, started Indian wars.

Accordingly, the Constitution says simply, “Congress shall have the power to regulate Commerce … with the Indian Tribes,” and state laws that are contrary to Federal law are preempted by the Supremacy Clause. Thomas’s broadside notwith-standing, this is not the only font of Federal authority concerning government-to-government relations with Indian nations and tribes. The United States negotiated 17 treaties under the Articles of Confederation prior to the Constitution, and 10 of those were treaties with Indian Nations (Cherokee Nation, Choctaw Nation, Six Nations). The Constitution affirms those treaties already made, including the treaty pledges of protection for Indian nations. The Constitution also authorizes new treaties. The Constitution, through the Treaty and Supremacy Clauses, recognizes Indian nations and tribes as prior sovereigns, with authority to enter treaties and those treaties reserved tribal self-governance over Indian lands and tribal citizens. Over 370 Indian treaties were entered under the Treaty Clause. The Apportionment Clause expressly excludes tribal citizens from direct taxation and congressional apportionment as “Indians not taxed.” Our people were citizens of our own Native Nations, not the United States.

As Chairman of the Constitutional Convention, Washington is a reliable guide to the Constitution’s meaning. In 1790, one year after its ratification, President Washington entered the Treaty with the Creek Nation, guaranteeing Creek territory, pledging protection, promoting justice, agriculture, and civilization. With regard to the “beloved” Cherokee Nation, President Washington exhorted them to undertake agriculture, sell their surplus to their white neighbors, gather in national council and send delegates to Congress, expressing their priorities and concerns.

Jefferson’s legacy is the Louisiana Purchase. In the 1803 Louisiana Purchase Treaty, the United States pledged to honor the international treaties with Indian nations, until such time as the United States by “mutual consent” entered its own treaties. Under Jefferson’s leadership, the United States passed laws for Indian traders, Indian education, and restricted liquor sales. Later, Indian treaties included provisions for tribal territorial integrity, self-government, agriculture, allotment of lands, education, health care, “civilization.” Domestic relations were addressed through treaties, when non-Indian husbands of Indian women were included in allotment of tribal lands and crimes between Indians were reserved to tribal self-government. Indian children were often sent far from home to military boarding schools, like Carlisle School in Pennsylvania, or educated in government boarding schools on Indian reservations. InUnited States v. Quiver(1916), the Supreme Court explained that:

At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws. Thus the Indian intercourse acts of 1796 and 1802 provided for the punishment of various offenses by white persons against Indians and by Indians against white persons, but left untouched those by Indians against each other.

After 90 years of Indian treaty-making, Congress promulgated, and the states ratified, the 14^thAmendment. Congress intended to make freed slaves citizens through the Citizenship Clause, but intentionally excluded the citizens of Indian nations from U.S. Citizenship. Native people were not “subject to” the jurisdiction of the United States, as required by the new Clause. Our people were subject to tribal government jurisdiction.

When the 14^thAmendment removed the constitutional reference to slavery (3/5s of other persons) and counted “All persons, excluding Indians not taxed,” the political status of tribal citizens was affirmed. Under the Indian Peace Policy of the post-Civil War era, the United States entered into over 70 Indian treaties while the 14^thAmendment was considered and ratified. By repeating the original language of the Constitution, the 14^thAmendment should be read to affirm the original Indian affairs powers of the United States. In this way, the Nation approved an expansive view of the Indian affairs power and the government-to-government relationship between the United States and Indian nations.

The Supreme Court has found that the War Powers are also among the Indian affairs powers because the United States, having made war on Indian nations, also had the power to make peace. Indeed, President Washington put Secretary of War Knox in charge of treaty-making with the Cherokee Nation in 1790. The Department of War was the original home of the Bureau of Indian Affairs. The United States destroyed traditional tribal economies and disrupted our Indian communities by warfare, so the United States has the power to assist Indian nations in restoring tribal economies and Indian communities. (Think of the Marshall Plan.) And, under the Constitution’s Property Clause, the United States, having taken original Indian lands as “surplus” and having claimed title over remaining Indian lands to protect them against alienation, also had the power to restore Indian lands.

In his Baby Veronica opinion, Thomas would have us believe that because no furs, beads or kettles, hatchets or guns were traded, the Indian Child Welfare Act is unconstitutional. His view ignores the history of the United States relations with Indian nations, the Constitution’s text, treaties, statutes, and a rich body of Supreme Court precedent. As Chief Justice Marshall said in the 1830s Cherokee Nation cases, the duty to protect is not a license to destroy. Where the United States pledged through treaties (affirmed by the 14^thAmendment) to protect Indian nations, Congress now has the power to protect our Indian children so they, as our future citizens, are not stripped away from our Indian nations.

Under the Constitution, it is well within Congress’s power to protect Indian families and children through the Indian Child Welfare Act. Justice Thomas is just plain wrong when he says otherwise.

Mark C. Van Norman is the Executive Director for the National Indian Gaming Association.

Indigenous Brazilian leaders visit Oklahoma law firm for cross-cultural exchange

15 May 2013

Crowe & Dunlevy

TULSA, Okla. – On May 6, 2013, a delegation of Brazilian indigenous leaders visited Crowe & Dunlevy law firm’s Tulsa office to discuss Native American law, policy and legal history, as well as indigenous issues in Brazil.

“The parallels of indigenous peoples and Amazon forests with our native peoples in Oklahoma is remarkable,” said Mike McBride, chair of the Indian Law and Gaming Practice Group at Crowe & Dunlevy. “The significant difference, however, is that the Brazilian indigenous peoples lack the common law protections, a treaty histories and federal laws to protect their indigenous rights.”

McBride and Gerald Jackson, director at Crowe & Dunlevy, hosted the visitors. U.S. State Department Portuguese interpreters provided real-time translation.

“The lack of significant legal protections and recognition by the Brazilian government creates a challenging environment in which the indigenous people of Brazil can access basic economic development tools in order to better their lives and protect their unique cultures,” Jackson said.

Agostinho Eibahiwu, curator of the Indigenous Community Museum and Bororo Cultural Center of Meruri, explained the delegation’s interest in Native American affairs. He said that he was the first person in his tribe to obtain a Master’s degree. In addition to his museum curatorial activities, Eibahiwu develops projects for local indigenous schools, coordinates a cultural schedule at the community center and works as a consultant on indigenous issues.

Marcelo De Jesus, a leader of the Kiriri Indigenous Tribe, discussed how indigenous peoples, as minorities in Brazil, lack a political voice in the legislature and that few civil law provide adequate protection in the rain forests and how projects continued to threaten their way of life. For example, the plan to build a hydroelectric project and dam threatens their traditional modes of transportation of traveling by boat on the river, their hunting and gathering of plants and animals.

The delegation also discussed the difficulties in economic development and how a number of prior projects have failed because the indigenous nations could not afford to pay the interest on bank loans.

“The challenges that Brazilian indigenous people face today are the same that many of our Indian nations in the United States faced in the 1800s, although the indigenous people of Brazil lack the foundations and protections of tribal sovereignty,” McBride said. The delegation also discussed the United Nations declaration of rights for indigenous peoples and its potential impact and use for indigenous rights in Brazil.

For more information, contact Mike McBride at (918) 592-9824 or mike.mcbride@crowedunlevy.com or Bob Lieser, vice president of programming for Tulsa Global Alliance, (918) 591-4750 or blieser@TulsaGlobalAliance.org.

About Crowe & Dunlevy
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