NATIVE SOVEREIGNTY xxxx Native Geographies (Geography / AIS 322) Prof. Zoltán Grossman
Sovereignty Paramount; supreme Having supreme rank or power 3. Self-governing (American Heritage Dictionary)
Western legal concept of Sovereignty To avoid instability, power is vested in a strong central authority. There can be no State without a Sovereign Sovereign is subject to God and agreements with other sovereigns
Sovereignty (on-reservation rights) xxxx • Political autonomy, not state/local control • “Domestic dependent nation” • Tribal members citizens of U.S., tribe, and state
“Trust Responsibility” • Direct relationship between federal & tribal gov’ts • Tribal land put “in trust” to become reservation • Protects reservation from state & local gov’ts • Puts tribe as “ward” at mercy of federal “guardian”
“Miner’s Canary” analogy By Felix Cohen, 1953 (Modern founder of federal Indian law) “The Indian plays much the same role in our American society that the Jews played in Germany. Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, marks the rise and fall of our democratic faith.”
Views of Native Land (Sutton) • Ethnohistorical (cultural view) • Legal/proprietary (land ownership) • Political/jurisdictional (gov’t authority)
Ethnohistorical(Cultural view)Sacred sitesAboriginal title(if no treaty)Treaty landsLand claims(See sacred sitesand treaty lectures)
Legal/Proprietary(Land ownership)Trust lands(reservation)Public landsFee landsPrivate allotments
LEGAL/PROPRIETARY(Land ownership) “INDIAN COUNTRY” = Lands within reservation boundaries,and trust lands outside reservation xxxx
Trust Lands xxxxx • Recognized exclusive for tribe • Owned by U.S., “occupied” by Indians • Communally held; no taxes on land • Some trust lands outside reservation • Casinos, Red Lake parcels
Fee-Simple Lands • Non-Indian lands on reservation • Private Indian lands (often allotments) • Defined as “Open Areas” • Brendale case in Yakama • Also tribal fee lands outside reservation • Can be used for bank collateral
Fee-to-Trust Process • Tribe buys fee land in or out of reservation • Applies to BIA to put land into trust • Friction with county/local gov’ts losing tax base • Payment In Lieu of Taxes (PILT) solutions
Fractionated Heirship • As Native landowners die, land is divided among heirs • Control of private Indian estates subdivided into tiny fractions on reservations with limited space • Land becomes vulnerable to non-Indian acquisition • Solution: Awareness, Wills to clear inheritance Indian Land Working Group www.ilwg.net
Reservation lands http://ilwg.net/reservations.htm
Infringement • Reserved rights based on tribal space • Territory protects tribe • State violation of Native geographical jurisdiction • Very rarely upheld; generally only subject matter
White EarthRes., Minn. “Checkerboard” of tribal trust lands, tribal allotments, non-Indian public lands. non-Indian fee lands White Earth Land Settlement Act provided only limited returns
Local authority • Reservation non-Indians have townships • Not on some res. (Menominee, Red Lake) • Clashes common with tribal gov’t over construction, use permits, access roads, etc. • Authority (zoning ) over non-Indian fee lands on reservation
Strawberry Island Burial Grounds • Site of Ojibwe-Dakota battle on Lac du Flambeau Res. • Signed over by child, 1911, but not developed • Colorado man received township permit for condos, 1995 • Oppose by county zoning board, tribal referendum Talks to buy site on-going.
Mescalero Apache, NM Church landson reservations Prairie Island, MN Not as many local objections that churches don’t pay taxes
Tribal authority • Regulate tribal members • Tribal trust lands • Indian-on-Indian minor crimes • Civil jurisdiction (use it or lose it) • Zoning permits, family matters, tribal property • Limit non-Indians rarely (only as Congress allows)
Federal authority Constitutional power to regulate commerce and make treaties “Plenary power” absolute over tribes Major Indian-on-Indian crimes Allotment; and most sale of trust lands today Only Congress can terminate tribal sovereignty; until Congress acts, tribal powers persist.
Federal Pre-emption of State • Feds have “subject matter jurisdiction” • Commerce, crime, health,housing, education, natural resources • Regulations on Indian fee lands • Gaming, environmental, etc. • Taxation • Indians pay federal income taxes, also state if work off-res. Federal “HUD Homes”
State authority Cannot infringe on the right of Indians to make their own laws and to be ruled by them. A state may have an interest in a situation/case (e.g., gaming, harvests). Where tribal self-government is evident, regulation by the state is unlikely. If not evident, state upheld. If tribes regulate their treaty rights and protect state conservation, state regulation is blocked.
State authority • Tax non-Indian fee lands • Law enforcement • In Public Law 280 states • Non-Indian criminal jurisdiction • Any powers allowed by Congress
Diminishment • Reservation non-Indians assert that they are not represented by tribal gov’t • Vote for their “Open Area” to secede from reservation • Pine Ridge/Rosebud • Uintah-Ouray, Utah 1986 decision on legal jurisdiction
Anti-Sovereignty groups in Montana • Flathead Residents Earning Equality (FREE), whites objecting to tribal rec permits, 1972 • Montanans Opposing Discrimination (MOD) became All Citizens Equal (ACE) • ACE associated with white supremacists, lost public support , but now with politicians
Nez Perce in Idaho • Local & county gov’ts join in North Central Idaho Jurisdictional Alliance (NCIJA) • Opposes Nez Perce trust lands (inside current reservation), legal authority, water rights • One county works with tribe, worked out Payment In Lieu of Taxes
Oneida & Cayuga in New York • Tribes claim original reservation, sue State • NY Oneida gov’t also sued private landowners (rare) • Upstate Citizens for Equality (UCE) opposes suit, expanded tribal authority, tribal gaming • Mixed with intertribal, intratribal conflicts
Mille Lacs Ojibwe Res., Minn. • Original treaty reservation of 61,000 acres, 1855 • Reduced to 3,500 acres in allotment era • Mille Lacs Band jurisdiction suit opposed by PERM, Mille Lacs Tea Party, county gov’t, banks Fear of what Band might do to non-Indians’ property, even oppose tribal/local water treatment plant District Court backed Band jurisdiction (would not affect non-Indians), 2003
National Anti-Sovereignty Movement • Reservation whites, resource interests, others • Groups part of Citizens Equal Rights Alliance (CERA) • Losing on treaty rights, 1990s, switch to jurisdiction, idea of “One Nation” (name of Oklahoma group) www.citizensalliance.org
Membership & citizenship • Social (blood) definition of place: Ethnic membership • Tribal “membership” selects tribal gov’t • Risk of diminishment by unrepresented non-Indians • Territorial (soil) definition of place: Geographic citizenship • Reservation “citizenship” (limited represntation) for non-Indians? • Risks of non-Indians or New Agers taking over?
Tribal elections & reservation boundaries Tribal members in cities can voteEthnic membership one way to bridge rural-urban divideInternal factions develop if power centralized Trees mark corner of Prairie Island Reservation boundary, Minn.
Ethnic groups and reservations Many tribes have more than one reservation - Lakota, Ojibwe, etc.Some reservations have more than one tribe,but have only one tribal government - Umatilla, Colville, Fort BelknapU.S. played divide-and-conquer,pits tribes against each other as factions
License platesSocial or territorial eligibility? Vietnam vet plates State identified No state
White Clay • Village of 22 (15 businesses) in Nebraska, part of original (dry) Pine Ridge Rez., SD (I sq. mi.) • 4 million cans beer ($3 million +) sold a year • July 1999 confrontation over liquor sales, unsolved murders, tribal claim
Intertribal land issueMiddle Village,Menominee Reservation inShawano Co.
Navajo-Hopi jurisdictional dispute • Partition of Joint Use Area • Area includes Black Mesa coal field • Navajo, Hopi Tribal gov’ts in conflict, 1960s
Navajo-Hopi jurisdictional dispute? • Relocations of Big Mountain Navajo • Sheep confiscations • Moved to housing away from lands Navajo and Hopi Tribal gov’ts in forefront of conflict Traditionalists blame Peabody Coal for stoking conflict
Oklahoma Native lands • Lots of Indians, but land taken for settlement, oil • Now only tiny land around headquarters(exc. Osage)
Alaska Native lands Alaska Native lands held as village & regional corporations, not as sovereign reservations Receive more oil profits, have their own mining/timber operations • Alaska Native Claims Settlement Act, 1971
Indian lands exploited for oil, minerals (Fixico) BIA put profits into trust, but “lost” the money (Cobell vs. Norton case) Ex-Navajo Chair MacDonald Formed Council of Energy Resource Tribes (CERT) to get profits for tribes CERT criticized by Native environmentalists Resource profits
Indian Gaming Regulatory Act (IGRA), 1988 Tribes could have same “class” of gaming as the state I. Social, II. Bingo/Cards, III. Casino ( = Lottery) Class III tribal authority limited; regulated by Commission Have to reach compacts with governors
Transformations of successful tribes xxxxx Ability to fund programs Influence in non-Indian border town Contracts, hiring, cultural events, welfare reduction Largest employer in county, Including non-Indians
Positives of Gaming • Less pollution, economic pressure for industries • Enables environmental legal work/lawsuits, technical/ research expertise. • Funds public relations/lobbying. • Finances land purchases.