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Post by mdenney on Feb 2, 2007 22:02:55 GMT -5
The Avalon Project at Yale Law School An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations, and to Extend the Protection of the Laws of the United States and the Territories over the Indians, and for Other Purposes. link below- www.yale.edu/lawweb/avalon/statutes/native/dawes.htm
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Post by mdenney on Feb 2, 2007 23:04:49 GMT -5
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Post by mdenney on Feb 2, 2007 23:11:41 GMT -5
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Post by mdenney on Feb 2, 2007 23:28:16 GMT -5
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Post by mdenney on Feb 2, 2007 23:58:36 GMT -5
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Post by mdenney on Feb 3, 2007 0:01:39 GMT -5
I will post some links of this as I research this. I found the link I was taking about- last link on this post at bottom This link below is not the one I an talking about I have to find it again. That link below is somewhat like it .. I am now triing to understand this on limitations on trusts I read awhile back of a federal oil and gas trust , that this company that had it from the indian land tried to say it only owed for 6 years but the upper court ruled that there was no limitation on trust land on money owed to the goverment. And the Court said that in light of the federal goverment`s trust reponsibility towards the tribe on money owed and how would they pay if this limitation was to be . so why is it any difference on the casino it the same principle.. 1.- supreme.lp.findlaw.com/supreme_court/briefs/05-669/05-669.mer.ami.jicarilla.pdf2. newstandardnews.net/content/?action=show_item&itemid=37503. www.indianz.com/News/2004/001284.asp4. www.indiantrust.com/_pdfs/20030428DeniedDefsMSJreLimitations.pdfSupreme Court rules for DOI in royalty collection case Tuesday, December 12, 2006 The U.S. Supreme Court on Monday unanimously upheld the Interior Department's efforts to collect royalties from oil and gas companies. In the 7-0 decision, the court said the Minerals Management Service is not time-barred in seeking back payments for drilling on federal land. The companies had claimed the government was restricted by a six-year statute of limitations. But the justices said the limitation only applies to court proceedings, not to administrative proceedings within DOI. The companies must pay hundreds of millions of dollars more as a result. Had the court accepted the oil companies' arguments, Justice Samuel A. Alito said it would have created "disharmony" in the federal government's trust responsibilities to tribes and individual Indians. Imposing the limitation would prevent Interior from "aggressively" carrying out its fiduciary duties, the opinion stated. Chief Justice John G. Roberts Jr. did not participate in the ruling. He had heard the case when he was on the D.C. Circuit Court of Appeals. Get the Story: Court Rules Against Oil and Gas Industry (AP 12/11) Found the links and I posted some of what it says above here links below- indianz.com/News/2006/017325.aspSCOTUS Rules Against Oil and Gas Industry Posted by kiriath_jearim On News/Activism 12/11/2006 6:51:28 PM PST · 5 replies · 214+ views Newsday & AP ^ | 12/11/06 | PETE YOST WASHINGTON -- The Supreme Court ruled against the oil and gas industry Monday in a dispute over how many years into the past the government can reach to collect money for leases on federal land. In a 7-0 decision, the court refused to limit the number of years the government can reach back to collect unpaid royalties. The ruling applies to administrative proceedings the Interior Department brought against two companies. At issue is whether a federal law imposing a six-year time limit for the government to file lawsuits based on federal contracts also applies to administrative orders. Ten years ago,... link below- www.freerepublic.com/focus/keyword?k=scotuswww.freerepublic.com/focus/f-news/1752052/posts
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Post by mdenney on Feb 3, 2007 0:30:46 GMT -5
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Post by mdenney on Feb 3, 2007 0:43:15 GMT -5
TUCKER ACT. - The Tucker Act, 28 U.S.C. S 1491, grants the U.S. Claims Court " `jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.' " Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment.
The Tucker Act, 28 U.S.C. S 1491, provides in relevant part: The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
Tucker Act Shuffle Relief Act of 1997 - Grants each of the U.S. district courts and the United States Court of Federal Claims (Claims Court) original jurisdiction to hear and determine all claims (whether for monetary or other relief) arising out of agency action alleged: (1) to constitute a taking in violation of the fifth amendment to the Constitution; or (2) not to constitute such a taking only because the action was not in accordance with lawful authority. Specifies that such grant of jurisdiction does not extend to matters over which other Federal law has granted exclusive jurisdiction to one or more U.S. courts of appeals.
Provides that the plaintiff, by commencing such an action, elects which court shall hear and determine those claims as to that plaintiff.
Prohibits any third party from being involuntarily joined to a case within the jurisdiction of the Claims Court by reason of this Act if that party would be entitled to a determination of the claim with respect to which that party is joined by a court established by or under article III of the Constitution.
Grants the Claims Court the power to grant equitable and declaratory relief with respect to any claim within its jurisdiction under this Act.
Directs that any appeal from an action commenced under this Act be to the United States Court of Appeals for the Federal Circuit.
Repeals a provision denying Claims Court jurisdiction over a claim for which a plaintiff has pending in another court a suit against the United States or a person acting therefor
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Post by mdenney on Feb 9, 2007 20:20:58 GMT -5
Fundamental Principles of Tribal Sovereignty
part 1
Sovereignty is an internationally recognized power of a nation to govern itself. Treaties were agreements between sovereign nations that granted special peace, alliance, trade, and land rights to the newcomers. Indian governments used treaties to confirm and retain rights such as the sovereign right of self-government, fishing and hunting rights and jurisdictional rights over their lands (Kickingbird, et al. 1980). Treaties did not, as is commonly assumed, grant rights to Indians from the United States. Tribes ceded certain rights to the United States government and reserved the rights they never gave away.
Tribal sovereignty preceded the development of the U.S. Constitution. The framers of the United States Constitution specifically recognized the sovereignty of Indian tribes. In Article 1, section 8, clause 3 of the Constitution, Congress is identified as the governmental branch authorized to regulate commerce with "foreign nations, among the several states, and with the Indian tribes [italics added]." The Supreme Court reaffirmed this legal and political standing of Indian nations in a set of three 19th Century court decisions known as the Marshall Trilogy. These cases serve as cornerstones to understanding Indian sovereignty in the U.S. political system as a clearly defined legal status that has constitutional standing.
The Marshall Trilogy: The Supreme Court and Sovereignty The three cases which are known as the Marshall Trilogy are Johnson v. McIntosh (1823); Cherokee Nation v. Georgia (1831); and Worcester v. Georgia (1832). In Johnson v. McIntosh (1823) the Supreme Court concluded that tribal sovereignty, although impaired by European colonization, cannot be dismissed.
Supreme Court Chief Justice Marshall stated, "In the establishment of these relations [between Europeans and Indians], the rights of the original inhabitants, were in no instance, entirely disregarded. They were admitted to be the rightful occupants of the soil, with the legal as well as just claim to retain possession of it, and to use it according to their own discretion" (Getches, Wilkinson, and Williams, Jr. 1993, 144).
Cherokee Nation v. Georgia (1831) ruled that Indian tribes were "a distinct political society, separated from others, capable of managing [their] own affairs and governing [themselves]" (Getches et al. 1979, 162).
Worcester v. Georgia (1832), the third case of the trilogy, the Court held that tribal sovereign powers were not relinquished when Indian tribes exchanged land for peace or protection.
As a result of the Marshall Trilogy legal cases, the Supreme Court both reaffirmed the sovereignty of Indian tribes and acknowledged this as predating European arrival. Because Indian nations lie within the acknowledged boundaries of the United States, Chief Justice Marshall delineated Indian tribes as "domestic dependent nations." It is under this definition that Indian tribes find themselves operating today.
Interpretations of Indian treaties are supposed to favor Indian tribes. In Winter v. U.S. (1908) the court states that, "By rule of interpretation of agreements and treaties with Indians, ambiguities occurring will be resolved from the standpoint of the Indians." In addition, the courts have developed canons of treaty construction that are supposed to guide the interpretation of Indian treaties in decisions.
Three basic canons:
Ambiguities in treaties must be resolved in favor of the Indians. Indian treaties must be interpreted as the Indians would have understood them. Indian treaties must be construed liberally in favor of the Indians (Pevar 1992). Contemporary conflicts between Indian tribes and non-Indians occur as new conditions and situations arise. Thus, there is a constant legal process of defining and interpreting treaties to settle current issues. The standard for resolving these conflicts was established in Winter v. U.S. (1908). "In interpreting Indian treaties, ambiguities are to be resolved in favor of the Indians. Court decisions have stated that this rule applies to agreements as well, and also federal statutes" (Kickingbird et al., 1980, p. 32).
The aforementioned canons apply to treaty cases and to all tribal/federal agreements and statutes. The reasoning behind establishment of the canons of treaty construction was that nuances of the English language were not be the same for Indians as they were for English-speaking negotiators. The Court has also ruled in various cases (see, e.g., Choctaw Nation v. United States (1970); United States v. Shoshone Tribe (1938); Starr v. Long Jim (1913); Fleming v. McCurtain (1909); Worcester v. Georgia (1832)) that the nature of the times when the treaty was signed must also be considered when engaging in present day interpretations of treaties.
The Trust Responsibility Trust responsibility is integral to the principle of tribal sovereignty. It derives from negotiations with Indian tribes that bound the United States to do the following:
Represent the best interest of the tribes, Protect the safety and well-being of tribal members, and Fulfill its treaty obligations and commitments. The foundation of this unique relationship is one of trust: the Indians trust the United States to fulfill the promises which were given in exchange for their land. The federal government's obligation to honor this trust relationship and to fulfill its treaty commitments is known as its trust responsibility (Pevar 1992, 26). The American Indian Policy Review Commission in 1977 explained the trust obligation in the following way:
The scope of the trust responsibility extends beyond real or personal property which is held in trust. The United States has the obligation to provide services, and to take other appropriate actions necessary to protect tribal self-government. The doctrine may also include a duty to provide a level of services equal to those services provided by the states to their citizens [e.g., educational, social, and medical]. These conclusions flow from the basic notion that the trust responsibility is a general obligation which is not limited to specific provision in treaties, executive orders, or statutes; once the trust has been assumed, administrative action is governed by the same high duty which is imposed on a private trustee [emphasis added]. Despite clear sovereignty of Indian tribes, and trust responsibility obligations of the U.S. government, historic relations between Indians and U.S. governments have been filled with continuous attempts to erode sovereignty. As noted above, this has taken many forms including attempts at assimilation and termination of Indian tribes and people.
Current threats to tribal sovereignty are simply the latest surge in this process. Yet many non-Indians believe that sovereignty is a new Indian cause and that it is open to question or debate. Contrary to attempts by policy makers and political leaders to generalize about Indian history, the fact remains that Indian people are not just another racial minority group - they are a people who have retained a unique aboriginal sovereign status.
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Post by mdenney on Feb 9, 2007 20:21:27 GMT -5
Contemporary Threats to Tribal Sovereignty From Congress
part 2
As Indians continue to exercise their sovereign rights as nations and demand accountability from the United States to fulfill its trust responsibility, there are continuing attempts by non-Indians to contest sovereignty. Three major forums through which these challenges are currently being mounted are the court system, U.S. Congress, and state governments. Current efforts to erode Indian sovereignty are perhaps significantly more subtle than previous overt anti-Indian policy and assimilation. These most recent policy efforts incorporate sophisticated legal and political tactics which do not use the words assimilation and termination, yet the consequences for Indian people may be just the same.
Threats from the U.S. Congress The United States Congress has the authority to set Indian policy despite the sovereign status of Indian nations. This is called the plenary power doctrine. A consequence of the plenary power doctrine is that courts do not review legislation in Indian affairs on the basis of whether it has a negative impact on tribes. Congress has the authority to pass laws in Indian affairs and therefore federal legislation is a "political judgement" which is not, in the court's opinion, itself subject to judicial review. Therefore, Congress can enact legislation which impacts Indian tribes in negative ways and still be within their Constitutional authority. However, Congress also has the responsibility to protect the resources and sovereign status of Indian tribes.
Legislation passed by Congress that negatively affects Indian tribes is in direct conflict with the trust responsibility of the U.S. government.
Congress is supposed to work for the benefit of Indian nations, including the protection of sovereignty and treaty rights. This dual responsibility-- the plenary power doctrine on the one hand, and the trust obligation on the other, creates a condition of ambiguity between Indian Country and the U.S. Congress that remains unresolved. Policy consequences of this ambiguity swing back and forth: sustaining sovereignty in some actions and dismantling sovereignty through other actions.
Careful monitoring and action by tribes is crucial for protecting tribal sovereignty during this politically volatile era. The National Congress of American Indians at its 53rd annual convention stated that, "anti-Indian bills introduced in the 104th Congress should serve as a reminder that tribal sovereignty and tribal rights require constant attention by the tribes in the legislative and judicial arenas" (National Congress, 1996, p. 142). Examples of legislative action in recent Congresses include the following:
Devolution of federal welfare programs to the states. Proposed amendments to policies affecting Indian tribes including the Indian Child Welfare Act (1978) and the Indian Gaming Regulatory Act (1988). Proposed taxation of Indian gaming and sales taxes to non-Indians on trust lands. Proposed amendments to regulatory authority of Indian tribes in the name of environmental protection.
Devolution and Its Impact on Sovereignty The 104th Congress continued a decade-long national trend of shifting federal administration of social and regulatory programs to the states. This devolution has significant implications for tribal governments. The federal government has historically carried out its trust responsibility to Indians in education, health and welfare via federal social programs. As devolution proceeds and social programs are transferred to states, many Indian programs at the federal level risk being similarly transferred. As a consequence tribes face the task of negotiating with states for Indian programs which should legitimately fall under the trust responsibility of the U.S. government.
In the 1930's, the federal government began funding this trust obligation through general assistance and welfare programs. The implications of this 1930's policy will affect Indian Country in the 1990's. Douville says, "this shift in distributing treaty funds is a major problem because these treaty benefits suddenly became part of the welfare and general assistance programs that are generally regarded by the working class as handouts and a burden to the taxpayers" (Douville 1996, A5). While many tribes "strenuously" objected to the Personal Responsibility and Work Opportunity Reconciliation Act (1996), there was no consultation with tribes and no means for tribal intervention to mitigate the potential damage. A Tribal Leaders Statement, from the Partnership for the Future Conference held in Seattle in October 1996, warned that Indian tribes have not had the opportunity to get themselves ready to implement these reforms. The effects of welfare reform will be devastating to some tribes. The intent of this legislation is to move people off welfare and into the job market. The point is lost in Indian Country where most reservations have little economic base and there are few jobs for Indian people. Many tribes assert that amendments to the bill will be necessary if Congress is to comply with its trust responsibility and obligation.
The 105th Congress continued many of the efforts of its predecessor. Some members of Congress wanted to curtail discretionary spending as much as possible, and it is likely that entitlement programs will continue to be restructured or cut back. Because funds for Indian programs have been placed under the rubric of discretionary spending, instead of a separate category befitting the trust obligation, it is likely that efforts to decrease funding will continue to impact tribes and their members.
In the effort to reduce federal spending, no distinction is being made between the government's trust obligation to Indian tribes and social spending for non-Indians. Last session, Title VI was passed which gave tribes authority over and access to funding for housing assistance. This session, House of Representatives Resolution 2 (1997) was introduced to decrease funding assistance for public rental housing. It is of little importance to have authority over spending money that does not exist.
In lieu of the upcoming hardship, Congress has amended the Social Security Act and created the Temporary Assistance for Needy Families program. This program will be implemented by the states with tribal government participation which places tribes in the situation of adhering to state regulations. If this bill is passed, assistance will be dispersed at the discretion of a state council. There are no requirements to include Indian representation on the council.
Also during the 105th Congress, Senator Slade Gordon introduced a provision to the fiscal year 1998 Department of Interior appropriations bill that would impose a means test for federal funding allocated to Indian tribes. Ultimately, this provision was dropped as a result of pressure from tribal governments, however, the bill authorizes a tribal task force to allocate some of the increases in funding. Despite the high levels of unemployment and poverty on many, if not most, reservations, federal funding allocations for social welfare programs are not based on needs. Rather, those resources are part of the trust responsibility of the United States government toward Indian tribes. Means testing for such programs violates the treaty responsibilities and federal trust relationship (National Congress of American Indians, Policy Alert, October, 1997).
Amendments to Key Policies Affecting Indian Tribes During the 104th Congress, a number of legislative amendments were proposed which could result in weakening the sovereign status of tribes in a variety of ways. States would gain greater leverage in gaming negotiations from a proposal in an appropriations bill waiving tribal sovereign immunity, from amendments to ICWA (1978) that weaken tribal rights to define membership, and from amendments to IGRA (1988). Amendments were also proposed to the Clean Water Act (1977) that would strip tribes of their authority to regulate water policies on reservations.
The 105th Congress resumed consideration of similar amendments made but not passed in the 104th Congress. Several bills, such as House of Representatives Resolution 325 (1997), have been introduced to amend the Indian Gaming Regulatory Act that would grant states greater leverage in compact negotiations and the capacity to tax gaming revenue (National Congress of American Indians Askwitteachik Website, April 1, 1997). Similarly, U.S. Representative Bill Redmond (R-New Mexico) voiced his intention to introduce the Indian Sovereignty Definition Act of 1998 as a result of the state compact negotiations with the New Mexico Pueblo this past fall. The compact calls for a 16% tax on gaming revenues payable to the state of New Mexico. Southwestern tribes have been meeting with Rep. Redmond to deter him from introducing this detrimental legislation.
Other gaming amendments introduced in previous sessions of Congress include, the House of Representatives Resolution 334 (1997), called the Fair Indian Gaming Act, which shifts burden of proof from the state to the tribe in compact negotiation. This bill introduced under the auspices of devolution would transfer IGRA oversight from the Department of the Interior to the Office of the Governor or the state legislature. Further, this act called for a two year moratorium on class III gaming and would require increased record keeping requirements. Moreover, the Attorney General would be directed to investigate tribal gaming and extend state criminal authority on tribal lands. Legislation such as this would significantly alter the nature and function of tribal governments.
Also introduced during the 105th Congress are joint bills in both the Senate and the House of Representatives in attempt to "correct the definition of Indian reservation" for the IRS tax code (Senate Resolution 470 (1997) and House of Representatives Resolution 1095 (1997)). The previous definition, it is argued in these bills, allowed for businesses to claim "accelerated depreciation" if they were located on land that currently has no ties to Indian land. This bill includes all lands that do not technically fall under the definition of reservation in the Indian Child Welfare Act of 1978. Consequences of this bill would be to narrow the existing definition of "reservation."
Taxation of Indian Tribes Federal legislation was proposed during the 105th Congress in a number of areas with respect to taxation and gaming. Representative Istook (R-Oklahoma) introduced House of Representatives Resolution 1168 (1997) which was intended "to restrict the Secretary of Interior from taking land into trust for the benefit of a Tribe until the tribe enters a tax collection agreement with State and local governments for sales and excise taxes imposed on all retail sales to non-Tribal members occurring on those Tribal trust lands" (National Congress of American Indians Askwitteachik Website, April 1, 1997). In addition, under this proposed legislation, state and local governments would be given veto power over tribal expansion of trust lands. A similar bill passed last session in the House of Representatives (House of Representatives Resolution 3662 (1996)).
Regulatory Authority of Indian Tribes Amendments proposed during the 105th Congress to environmental legislation such as the Endangered Species Act (1973), Superfund (1994), the Clean Water Act (1977), and nuclear waste storage will affect Indian country. The House is considering House of Representatives Resolution 193 (1997) which prohibits any area from being declared an historic district, site or national monument that is defined "unimproved" or "unmodified natural landscape" or does not contain any evidence of human activity (National Congress of American Indians Askwitteachik Website, April 1, 1997). This would affect tribal sacred lands. Tribal land is also threatened by House of Representatives Resolution 253 (1997) which gives holders of mineral claims exclusive rights to possession and use of land for mineral activities.
Much of this legislation is designed to strip tribal authority and to grant states more regulatory power in Indian Country. Some of these efforts are political strategies to impose hazards on Indian tribes that non-Indian communities are not willing to accept. For example, the federal government is pursuing a policy of locating nuclear waste on tribal lands. The Office of Waste Negotiator was created to recruit states and/or tribes to host high level nuclear waste storage facilities. Politically the federal government targeted Indian tribes as ideal hosts for this waste in a much more aggressive manner than they did with states. The Goshute reservation in Utah has been identified as an ideal high level radioactive waste dump for tons of irradiated waste.
In addition to the federal government, states and private electrical utilities are very active in this effort. States and private utilities are also looking at placing nuclear waste in the backyard of other Indian tribes. In California, a multi-state compact has chosen Wind Valley, an area in the middle of four reservations, as the location for medical and commercial radioactive waste.
In Minnesota, Northern States Power Company, supported by the governor, has won the ability to "temporarily" continue storing more waste from its nuclear power plant on land of the Prairie Island Mdewakanton tribe. Then-tribal vice-chairperson Darelyn Lehto, in a speech for the National Sovereignty Rally in Washington (January 21, 1997), said that sovereignty means the "right to live safely and peacefully on our land and govern our community in ways consistent with our culture and heritage." Northern States Power's nuclear facility and waste, and other policy efforts to locate hazardous waste facilities on Indian land threaten tribal safety. Lehto (1997), added that radiation was leaked at the Prairie Island plant in 1979 and 1994 and the Indian "community was never notified."
Other Important Policy Issues English-only bills were introduced in the 105th Congress without consideration for native languages, while other bills attempting to correct past injustices to Indian people stagnate in committee. For example, Senate Resolution 156 (1997) was to compensate the Lower Brule tribe for losses from the Fort Randall and Big End hydro-electric projects. These projects led to flooding on Lower Brule lands. Congress authorized the purchase of over 22,000 acres of reservation land for these projects and the Army was directed to "protect, replace, relocate or reconstruct" the land as necessary (Public Law 85-923; Public Law 87-734). This has not happened. In addition, the tribe was promised homes, a community center and a gymnasium, among other things. The tribe has yet to see any of this come to fruition. Pro-tribal bills for economic development introduced by Senator McCain (R-Arizona) and Representative John Shadegg (R-Arizona) were held up in committee.
Another important issue is the $2.4 billion Indian trust fund account that has been "lost or misplaced" by the U.S. government. The account represents 2000 tribal accounts ($2 billion) and 300,000 individual accounts ($450 million).
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Post by mdenney on Feb 9, 2007 20:22:18 GMT -5
Contemporary Threats to Tribal Sovereignty From the Courts
part 3
A pervasive condition of ignorance about Indian law exists in the U.S. court system. Lower courts in particular are often unfriendly to Indian tribes and remit decisions inconsistent with Supreme Court precedence. Lawyers and judges still lack education or training on the basics of Indian law. Indian law is not required in most law schools and often those making decisions on these matters have little or no background in the area. This places Indian tribes in the constant position of having to appeal decisions made by the lower courts. The appeal process takes a significant amount of time, energy and resources, which Indian tribes often do not have. Moreover, pursuing appeals does not guarantee a decision that will be more favorable to Indians, and so it is not only a costly process, but a risky one as well. Since 1991, the U.S. Supreme Court has decided on 13 Indian law cases, 5 of which were favorable to Indians. These recent court decisions show a trend of unfavorable decisions toward Indians. Endreson indicates:
In the 1980's (including 1990) the U.S. Supreme Court decided 47 Indian law cases, of which 20 were generally favorable to Indians. In contrast, in the 1970's and 1960's, a majority of the decisions were favorable to Indians...In the 1970's, 35 decisions were handed down, 20 were favorable to Indians. In the 1960's, 13 decisions were issued, 9 were favorable to Indians (Endreson 1997, 1). One important case recently reviewed by the Supreme Court related to land in trust. This case began with the Lower Brule Sioux Tribe of South Dakota wanting to buy 91 acres of land and to put it in trust status. The town of Oacoma which is adjacent to Lower Brule Sioux Reservation, feared a loss of tax revenue and the state of South Dakota sued the U.S. Department of Interior for allowing the land transfer. The Eighth District Court ruling in Department of the Interior v. South Dakota (1996) halted the Department of the Interior process and declared the process unconstitutional as stipulated under the Indian Reorganization Act (1934). Forty tribes and the U.S. Department of Justice appealed the case to the Supreme Court. The high court vacated and remanded the case back to the lower district court. This action threatens decision-making by sovereign tribes to acquire trust land.
Recent Court Cases Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 404 (1991). The Court ruled that the State Tax Commission could not sue the tribes to collect cigarette sales taxes from sales to non-Indians. The Court also rejected the state's attempt to distinguish trust land from reservation land. The Court also rejected the effort of the state to exclude business ventures from internal affairs and tribal courts which are secure under tribal immunity.
Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991). The Court ruled that sovereign immunity applies to sovereigns and individuals, but that states did not consent to suits by the tribes in the making of the Constitution. The ruling states that states can sue each other, but tribes lack this mutuality.
County of Yakima v. Yakima Nation, 502 U.S. 251 (1992). The Court ruled that according to the General Allotment Act, states are authorized to impose property taxes on fee land owned by Indians within reservations. The court also ruled that the states cannot impose excise taxes on Indians who sell fee land. This reaffirms that states cannot tax Indian people and their activities on Indian land.
South Dakota v. Bourland, 508 U.S. 679 (1993). The Court eliminated the tribe's power to exclude nonmembers from lands taken for the Oahe Dam and Reservoir project. The court also eliminated the tribe's power to exercise regulatory jurisdiction over non-Indians on the same lands.
Negonsott v. Samuels, 507 U.S. 49 (1993). The Court ruled that Kansas had the right to prosecute an Indian for a state offense that fell under the Indian Major Crimes Act. Under this act, the state can define and enforce such criminal laws.
Lincoln v. Vigil, 508 U.S. 182 (1993). The Court upheld the termination of the Indian Children's Program on the basis that the funding came from a lump sum appropriation. The lump sum appropriation, it ruled, is not reviewable because the sum comes from agency which by law reserves discretion. The tribe asserted that this termination violated the trust responsibility.
Hagen v. Utah, 510 U.S. 399 (1994). The Court ruled that the Uintah Valley Reservation had been diminished by a 1902 act. A clear statement with explicit language of cession or surrender of tribal, and compensation for lost lands was sought. This reservation was diminished by Congress when it opened the reservation to non-Indians.
Department of Taxation and Finance of New York v. Milhelm Attea & Bros., Inc., 512 U.S. 61 (1994). The Court ruled in favor of the state's regulations that cigarette taxes be collected before they are sold to non-Indians. The wholesaler is responsible for collecting and paying the tax.
Oklahoma Tax Commission v. Chickasaw Nation, 115 S.Ct., 2214, 515 U.S. (1995). The Court rejected the tribe's assertion that all tribal members, whether they fell under tribal jurisdiction or not, are immune from state taxation. Further, members who work for the tribe but live outside of the reservation are subject to state taxation. This decision passed by a narrow 5-4 margin.
Seminole Tribe of Florida v. Florida, 116 S.Ct., 1114, 517 U.S. (1996). The Court ruled that states are immune from suits brought forward by tribes under the Indian Gaming Regulatory Act. The Court ruled that states and state officials are protected from such suits by the Eleventh Amendment. The Court ruled 5-4 and was greatly divided. The tribes argued that Congress authorized such suits in passing IGRA. The Court ruled that Congress does not have the power to subject states to lawsuits. The tribes argued that they can sue the states in federal court to bring them in accordance with federal law. The Court ruled that IGRA contains specific language as to how disputes between tribes and state are to be resolved, resolution processes that do not include federal lawsuits.
Department of the Interior v. South Dakota, 117 S.Ct., 286, U.S. (1996). The Court decided to send the case back to the 8th Circuit Court of Appeals without addressing its merit. The lower court had ruled that it is an unconstitutional delegation of legislative power that the Secretary of the Interior takes lands into trust for tribes. Better known as the Oacoma case where the city of Oacoma challenged the Secretary's decision to acquire land for the Lower Brule Sioux Tribe.
Babbitt v. Youpee, 117 S.Ct. 727, U.S. (1997). The Court struck down a tribal provision to deal with fractionated allotments of property reverting to heirs. The tribe was trying to avoid increasing divided heirship to land and to consolidate tribal lands.
There has been a significant rise in attempts by states and other jurisdictions to legally challenge treaties, particularly in the areas of taxation, sovereign immunity and jurisdiction. Courts do not initiate these actions; however, they are responsible for resolving issues and establishing the terms to which both parties must abide. Therefore courts pose a threat to sovereignty by their interpretation of the law.
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Post by mdenney on Feb 9, 2007 20:23:06 GMT -5
Contemporary Threats to Tribal Sovereignty From the States
part 4
States are attempting to usurp Indian sovereign status in the areas of taxation, tribal membership, land diminution, and civil immunity. States are contending that new conditions or situations merit re-interpretation of federal law. The number of cases proceeding through state courts at this time is significant. Carvell states that "state courts issued about 100 decisions dealing with Indian law between January 1996 and April 1997 alone" (1997, 1).
Diminished Reservation Boundaries A persistent problem in Indian Country is, as Carvell states, "whether a reservation has been diminished in size or disestablished all together [sic]" (1997, 5). Several cases (Hagen v. Utah, 1997; Yankton Sioux Indian Reservation v. S. Missouri Waste Management Dist., 1996), for example, have been litigated or are in the process of litigation on this issue. The central question is whether or not reservations were diminished as a result of allotment and the opening up of surplus land to non-Indian land settlement.
In Hagen v. Utah (1997) the Supreme Court ruled that the Uintah Indian Reservation was diminished when Congress opened up the reservation to non-Indian settlers. States are utilizing this decision to challenge the land base of Indian sovereignty. The South Dakota Supreme Court has ruled in a separate case, State v. Greger (1997), that the Yankton Reservation was similarly diminished. The Eighth Circuit Court of Appeals has concluded in the Yankton Sioux Tribe case that the reservation has not been diminished. It can be expected that more states may utilize Hagen v. Utah (1997) to pursue attacks on the sovereignty and land base of tribes.
Civil Claims Some states are trying to undermine tribal sovereign immunity by challenging the status of off- reservation Indian commercial activity. Civil claims of employee rights, contracts or personal injury are becoming common. According to Carvell, "tribes, tribal entities, and businesses incorporated or otherwise authorized by tribal law are more and more subject to everyday civil actions" (1997, 5).
The State of Minnesota litigated against the Mdewakanton Dakota tribe, arguing the tribal entity that owns a bingo parlor, Little Six, Inc., is a commercial business enterprise and not a tribal governmental agency. While the court ruled in favor of the Mdewakanton and concluded that Little Six, Inc. has sovereign immunity from civil suits, it opened up the question for further judicial review. The court held that "tribal sovereign immunity now extends to commercial activities...which the U.S. Supreme Court has never addressed" (Gayle v. Little Six, Inc., 1996).
State Taxation The most visible and media focused issue relating to Indian sovereignty is taxation on Indian gaming. States view money generated by Indian tribes through gaming as a potential tax revenue. States are targeting tribes both legally and in the public media as sources of untapped revenue. A state tactic has been to use political blackmail to attempt to force tribes into negotiations over gaming taxes. One such effort is being employed by Minnesota, where it has been suggested that allowing non- Indian gaming in competition with Indian tribes may be inevitable unless tax agreements are reached. In a letter asking tribal leaders to participate in such discussions, Minnesota's Governor Carlson wrote "there is a growing sense among many Minnesotans that the tribal casino monopoly should be reviewed" (personal communication, May 2, 1997). Minnesota's gaming compacts with Indian tribes have no expiration date, and cannot be reviewed without tribal consent.
Political pressures in New Mexico have already resulted in gaming compacts that require payments of 16% of the net win on gambling machines and fees to the state by eight American Indian Pueblos and tribes. Taking affect August 29, 1997, the state of New Mexico had received $2.8 million dollars from five of the eight tribes prior to the October 25, 1997 deadline for payments. Many American Indian officials said they signed the compacts because they were concerned that without a legal contract they would be ordered to shut down the casinos. However, they also stated the payments amount to illegal taxation of one sovereign nation by another (Testerman 1997). Even prior to the New Mexico compact, this political trend of taxation may lead states to attempt to unilaterally amend tribal gaming compacts and pressure Congress to modify the Indian Gaming Regulatory Act (1988) (Murphy 1996).
Another potential source for state taxation has been attempting to tax fee lands. In 1992, the U.S. Supreme Court ruled in the County of Yakima v. Confederated Tribes of the Yakima Indian Nation that land allotted by General Allotment Act (1887) was subject to state taxation. The Federal Circuit Courts of Appeal have heard several related cases and have ruled inconsistently on this issue.
Some county and local governments are also attempting to impose user fees on Indian tribes in unique ways. In Minnesota, Scott County proposed toll booths on all roads leading to the Mdewakanton Dakota Mystic Lake Casino. Initial construction costs are estimated at $108,000 with an annual operating cost of $477,000. The County asserts the annual estimated cost from the Dakota community at $2.3 million. The annual revenue expected from the toll roads is $2.9 million (letter to Scott County from Nguyen, M., January 13, 1997).
Tribal Membership The Indian Child Welfare Act (ICWA, 1978) established federal procedures in Indian child custody matters. Under ICWA, tribes retain the authority to determine tribal membership of children. States have initiated efforts and continue lobbying Congress to amend ICWA and impose standard designated criteria of "Indianness," including such measures as level of cultural ties. Determining who is a tribal member is fundamental to tribal sovereignty.
Welfare Reform Passage of Public Law 104-193, called the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 will have immediate and significant repercussions for tribes. Tribal members, like any other citizen of the United States, will have to meet state program criteria and compete with non-Indians for funds. There is no telling the impact of loss of benefits to tribal members or the impact to tribal governments. Social welfare programs for Indian that were once viewed as part of the trust responsibility will now be funded as block grants to states. This gives states the control over tribal matters that is supposed to be under the plenary power of the Congress. This change in laws affecting Indian tribes conflicts with the manner in which the plenary power is to be exercised by Congress: Congressional action impacting tribes must be explicit, not implicit.
Hunting and Fishing Indian hunting and fishing rights retained by treaties are being challenged by the states under the name of conservation and environmental protection. Many states are challenging tribal sovereignty and arguing interpretation of treaty language in an attempt to impose state regulations on Indian tribes. States are pursuing these objectives in the name of environmental protection and are asserting that Indian hunting and fishing is subject to the same state regulations as non-Indian regardless of treaty language. The rationale being used is that Indians and non-Indians should be "equal under the law" and all should be subject to the same state laws and regulations.
In Minnesota, the Mille Lacs Band of Ojibwe hunting rights were affirmed by the U.S. Eighth Circuit Court of Appeals. The State of South Dakota is contesting tribal issuance of hunting licenses on trust land. South Dakota is arguing that Sisseton-Wahpeton trust land is technically "former" trust land, because it had been reclaimed by the U.S. Corps of Engineers. Many non-Indian hunters are blaming the Salish Kootenai for decimating moose herds in Montana, and are calling for Indian hunting rights to be abolished.
Criminal Jurisdiction: Public Law 280 Tribes subject to Public Law 280 (1953) face potential threats because state jurisdiction exists to a limited extent. States are attempting to extend their jurisdiction under Public Law 280 and expand civil and regulatory power in Indian Country. This problem is compounded by the fact that reciprocity agreements exist between tribes and state governments which grant states jurisdiction over tribal members. Recent cases in Minnesota have helped to clarify boundaries where the state had assumed jurisdiction (Bray v. Commissioner of Public Safety, 1996; State v. Stone, 1996; State v. Jackson, 1997). Nonetheless, the full impact of Public Law 280 is in the process of being determined through litigation.
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Post by mdenney on Feb 9, 2007 20:23:46 GMT -5
Considerations for Indian Tribes part 5
Two Northern Cheyenne elders, Enos Poor Bear and Austin Two Moons wrote about the unity at the Battle of the Little Big Horn: "The way that our elders made things better was through unity. Unity of purpose; unity of dedication; and unity of effort. When we look back over the pages of time, we observe that all major accomplishments of Indian people were brought about when unity was present. The major victory which our people enjoyed here at this very battlefield was the result of a unified effort among Indian people."
We are grateful to tribal leaders for their support and for their understanding while we assembled this report and the following points for consideration.
American Indians, the aboriginal people of the Western Hemisphere, are accustomed to having an intimate relationship with the natural laws of the Earth. Keep in mind, it is within this context that they approached treaty negotiations which would ultimately define their sovereign status. Tribal sovereignty is used quite frequent in today's discussions about Indian affairs. It was a term that did not exist in the native languages. It became a necessary term as European people and native people negotiated and defined agreements. Moreover, it continues to carry with it a defining nature for the future of Indian affairs.
Tribal sovereignty is to be protected for today and for the future. In today's ever-changing society, policies that are directed toward Indians are usually developed by non-Indians who have limited knowledge about these historic developments. This is so much so that a legislator in the Southwest erroneously tried to enact the Indian Sovereignty Definition Act of 1998. While tribes in the Southwest have been able to stop this particular policy for now, no doubt actions to redefine tribal sovereignty will continue. In addition, similar threats to tribal sovereignty are posed from multiple directions every day.
Tribal governments and individual tribal members may engage in policy discussions in a variety of ways in an effort to protect tribal sovereignty. No one way may be better than another. The critical element is that as tribal sovereignty is challenged, any new policy directives, protections, or "redefinitions" must be driven by American Indian people. With each threat toward individual tribes, strategies for protecting tribal sovereignty should be formed and a united front maintained. This united front would not usurp the individual rights of tribes as specified in their treaty, but would rather maintain the basic legal constructs of tribal sovereignty.
Examples of alliances formed by tribes include the 1997 Midwest Alliance of Sovereign Tribes that have been proposed by the Mille Lacs Band of Ojibwe in Minnesota and the November 1997 sovereignty summit supported by the Navajo Nation in the southwestern United States. The Minnesota alliance includes 33 tribes and 120,000 members in Minnesota, Wisconsin, Michigan and Iowa to counteract the perception of weak or disconnected tribal governments. This alliance will attempt to get all the tribes speaking on the same issues they mutually share, especially with respect to tribal sovereignty. Navajo Nation President Albert Hale proposed an Allied Indian Nations at the 1997 sovereignty summit that would periodically meet and consult concerning matters affecting one or all of the nations, resolve issues or disagreements between tribes amicably and without external influences, and respect the traditions and laws of each other (Taliman, 1997).
Many Indians are intensely caught in the current debate of issues. Individual Indians and groups in the Indian communities, while they may disagree on current tribal priorities and methods, must look beyond current disputes and support the concept of tribal sovereignty. Without sovereignty, there would be nothing to disagree upon. Without sovereign status, what would become of American Indian tribes?
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Post by mdenney on Feb 9, 2007 20:24:36 GMT -5
Recommendations
part 6
More educational information about tribal sovereignty must be produced. American Indians and non-Indians must have historical information about treaties and their basis for tribal sovereignty. Since little of this information was contained in the educational curriculum where policy makers received their education, it is now essential that this critical information be provided.
American Indian communities may want to increase their capacity for solving issues internally. Instead of deferring resolution of problems to outside communities or courts, American Indians can build their own capacity for internal problem solving, calling on traditional Indian values and beliefs.
Continue a forum for creating visionary tribal governments and leadership. Interaction between all members of the Indian community incorporates everyone's responsibility to solving critical issues facing American Indians.
Tribal governments may want to review the impact of their decisions on tribal sovereignty. Protecting and retaining the sovereign status of Indian tribes deserves the utmost obligation and responsibility of tribal leaders.
Tribes should remind Congress of the trust responsibility with Indian tribes. Tribal leaders, in dealings with the federal government, must continue to press government officials to live up to the promises ensconced in the trust responsibility doctrine.
Tribes and policy makers acknowledge the intrinsic value of treaties in the broader issue of tribal sovereignty. Treaties between Indian tribes and the U.S. government are rooted in the fact that Indian tribes were, and still are sovereign entities. Therefore, treaties are inextricably tied to the sovereign status of Indian tribes.
Tribal leaders and tribal governments may want to look for ways to incorporate traditional Indian values and beliefs in their decision making. Many tribes are now recognizing that far too much of their effort and time is spent examining issues from a non-native perspective.
Tribes should remain vigilant toward federal devolution and the negative impacts it has on their sovereign status. As funding of social programming is handed down to the states from the federal government, tribal governments are caught up in the switch, leaving them extremely vulnerable.
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Post by mdenney on Feb 9, 2007 20:25:18 GMT -5
References part 7 Allen, W.R. (April 10, 1997). Congressional games. Washington Times, A21. Baca, L. (1989). An introduction to federal Indian law. Federal Bar News and Journal, 36 (9), 420-421. Bray v. Commissioner of Public Safety, 555 N.W.2d 757 (Minn. Ct. App. 1996). Carvell, C. (1997, April). Litigation Update - State Courts. Paper prepared for the Federal Bar Association Indian Law Conference, Albuquerque, NM. Cherokee Nation v. Georgia, 30 U.S. 1 (1831). Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970). County of Yakima v. Yakima Nation, 502 U.S. 251 (1992). Department of the Interior v. South Dakota, 117 S.Ct., 286, 136 L.Ed. 2d 205 (1996). Douville, V. (Dec. 16-23, 1996). Budget cuts, block grants will batter Indian country. Indian Country Today. Endreson, D. (1997, April). A Review of the 1990s and a Look at What's Ahead. A paper prepared for the Federal Bar Association Indian Law Conference, Albuquerque, NM. Feagin, J. & Feagin, C. (1993). Racial and Ethnic Relations (4th ed.). Englewood Cliffs, NJ: Prentice Hall. Fleming v. McCurtain, 215 U.S. 56, 60 (1909). Gayle v. Little Six, Inc., 555 N.W.2d 284 (Minn., 1996). General Allotment Act, 24 U.S.C. 388 (1887). Getches, D., Wilkinson, C., & Williams, R., Jr. (1993). Cases and Materials on Federal Indian Law (3rd ed.). St. Paul, MN: West Publishing Company. Hagen v. Utah, 510 U.S. 399 (1997). H.R. 2, 105th Cong., § (1997). H.R. 5, 105th Cong., § (1997). H.R. 193, 105th Cong., § (1997). H.R. 253, 105th Cong., § (1997). H.R. 325, 105th Cong., § (1997). H.R. 334, 105th Cong., § (1997). H.R. 1095, 105th Cong., § (1997). H.R. 1168, 105th Cong., § (1997). H.R. 3662, 105th Cong., § (1997). Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1978). Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (1988) (Supp. 1994). Indian Reorganization Act, 48 Stat. 984 25 U.S.C. § 461 et seq. (1934). Johnson v. McIntosh, 21 U.S. 543 (1823). Kickingbird, K., Kickingbird, L., Tallchief Skibine, A., & Chibitty, C. (1980). Indian Treaties: Indian Legal Curriculum and Training Program of the Institute for the Development of Indian Law. Washington, D.C.: Institute for the Development of Indian Law. Lehto, D., speech for the National Sovereignty Rally in Washington, January 21, 1997. Murphy, P., (Presenter) (1996). Summary of presentation on tribal gaming. Forum Report: Tribal Governments: What will they look like in the year 2010? St. Paul, MN: American Indian Research and Policy Institute. Reed, J.B. & Zelio, J. (Eds.). (1995). States and Tribes: Building New Traditions. Denver, CO: National Conference of State Legislators. National Congress of American Indians Askwitteachik website. (April 1, 1997). Current legislation. Retrieved April 15, 1997 from the World Wide Web: www.askwitteachik.netgate.net/current.html National Congress of American Indians gathers under theme 'victory in unity.' (1996). Native American News, 1 (18), p.142. Nguyen, M. (January 13, 1997). Letter to Scott County regarding Mystic Lake tollbooth study. Personal Responsibility and Work Opportunity Reconciliation, 42 U.S.C. Sec. 608 (1996). Pevar, S. (1992). The Rights of Indians and Tribes: An American Civil Liberties Union Handbook (2nd ed.). Carbondale, IL: Southern Illinois University Press. Public Law 280, 18 U.S.C. Sec. 1162; 28 U.S.C. § 1360. (1953). Public Law 85 - 734, 76 Stat. 698 et seq. § (1994) Public Law 85 - 923, 72 Stat. 1773 et seq. § (1994) S. 156, 105th Cong., § (1997). S. 470, 105th Cong., § (1997). Sale, K., (1990). The Conquest of Paradise. New York: Knopf Publishing. Starr v. Long Jim, 227 U.S. 613, 622-23 (1913). State v. Greger, No. 19087, 1997 WL 68194 (S.D. Supreme Court, Feb. 19, 1997). State v. Jackson, 558 N.W.2d 752 (Minn. Ct. App. 1997). State v. Stone, 557 N.W.2d 588 (Minn. Ct. App. 1996). Taliman, Valerie. "Leaders Meet to Define Sovereignty," Indian Country Today, (December 1, 1997), p. 1. Testerman, Karen. "Casinos pay New Mexico State Under Protest," Indian Country Today, November 10, 1997. U.S. Constitution, Article 1, Section 8, Clause 3. United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938). Wall, S. & Arden, H., (1990). Wisdomkeepers: Meetings With Native American Elders. Hilsboro, OR: Beyond Words Publishing. Worcester v. Georgia, 31 U.S. 515, 551-553 (1832). Yankton Sioux Indian Reservation v. S. Missouri Waste Management Dist., 99 F.3rd 1439 (8th Cir. 1996).
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