Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

If an American enters the sovereign territory of Canada or Mexico and commits murder, he or she can expect to face the full weight of that nation's laws and be punished through that nation's court system.  But if a non-Native American enters the sovereign territory of a Tribe and murders a Tribal member, what punishment can that person expect to receive from the Tribe's Court and legal system?

None whatsoever.

Due to a unique set of federal legal decisions and policies, Tribal Courts have no jurisdiction to impose criminal penalties against "non-Indians", even when the crimes are committed on Tribal land or against Tribal members.  Crimes committed by "non-Indians" on Tribal land are subject to state and/or federal jurisdiction and the perpetrators face punishment under state and/or federal law, but the affected Tribe has no legal standing to pursue justice for wrongs committed against its own people.

In no other area of American jurisprudence is race - in this case "Indian" or "non-Indian" - a factor in determining whether a court has jurisdiction over a criminal defendant.  Decades ago the Civil Rights Movement helped sweep away race-based segregation and "Jim Crow" laws, but seemingly had no impact on the use of race as a jurisdictional consideration in the realm of Tribal Courts.  Indeed, the seminal Supreme Court opinion that confirmed the restrictions on Tribal Court jurisdiction was issued in 1978, more than a decade after the Civil Rights Act liberated the rest of America's population from racial discrimination in its governmental institutions.  In addition to the basic question of why race is a factor in Tribal justice, numerous other issues arise in this paradigm: Who exactly is a "non-Indian"?  Is a person with a drop of Native blood in the family lineage considered an "Indian" under this system?  What "race authority" should have the final word on determining such questions?

The US Supreme Court's opinion in Oliphant v. Suquamish Indian Tribe provides startling insight into the policies and mind-set that resulted in the limited jurisdiction of Tribal Courts.  It is striking that nearly all of the legal authority on which the court relied was from the 19th Century, when the attitudes of the American government toward Native Americans were anything but enlightened.  Citing In re Mayfield, 141 U.S. 107, 115 -116 (1891), the Oliphant Court noted that the policy of Congress had been to allow the inhabitants of Indian country "such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization."  The Supreme Court's decision in 1978 also cited the view Congress took toward the state of Tribal Courts in 1834: "With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint." H. R. Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).   The idea that such antiquated and ill-informed perspectives could still be the basis for American legal policy in the 21st Century is difficult to fathom, and is a sad reflection of the persistent racial discrimination that lurks even in the land that produced the Bill of Rights.

What is to be done to correct this glaring discrepancy?  Reading between the lines in the Oliphant decision, it seems that the Supreme Court of the time felt that the restrictions on Tribal Court jurisdiction were no longer appropriate, but that under the doctrine of separation of powers an act of Congress was required to rectify the situation.  Thirty years later, Congress has obviously failed to take the hint.  In all likelihood, removing race from jurisdictional considerations for Tribal Courts will require concerted pressure and lobbying of Congress by Tribes all across the country, acting in a coordinated and united front to claim this basic element of sovereignty.

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Appeals in the landmark case of  Cobell v. Kempthorne are likely to be argued before the D.C. Circuit Court of Appeals in the Spring of 2009.  The first briefs are to be filed on Jan. 21 and the last by April 7, 2009, with oral argument to be set at the earliest practical date thereafter.  At issue is a District Court order that awarded $455.6 million to thousands of Native American plaintiffs, who are pursuing claims that the government breached its trust responsibility to an estimated 500,000 Native Americans who had individual Indian Money Accounts managed by the Secretary of the Interior and the Secretary of the Treasury.  In terms of the number of plaintiffs and the dollars sought, the case has been called the largest class-action lawsuit in American history.  The plaintiffs have appealed on the basis that the award is far too small to adequately compensate Native Americans across the country for the loss of funds that were to be handled by the government for their benefit; the government has also appealed, asserting that the plaintiffs are owed nothing and that the federal departments are immune from suit.

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President–Elect Obama has selected Senator Ken Salazar, a Democrat from Colorado, to lead the U.S. Department of Interior, which includes the Bureau of Indian Affairs. “Among the many responsibilities Ken will bear as our next Secretary of the Interior is helping ensure that we finally live up to the treaty obligations that are owed to the first Americans,” Obama said. “We need more than just a government-to-government relationship – we need a nation-to-nation relationship, and Ken and I will work together to make sure that Tribal nations have a voice in this administration.” “I look forward to helping address the challenges faced by our Native American communities all across this nation,” Salazar said.

Salazar currently holds the Senate seat formerly occupied by Ben Nighthorse Campbell, a Republican and member of the Northern Cheyenne Tribe. Despite being from opposing political parties, Nighthorse Campbell has endorsed Salazar’s selection to head the Department. “President-Elect Obama couldn’t have picked a better person,” Nighthorse Campbell said. “Kenny has a really strong voting record on Indian water rights, land claims, and things of that nature – he’s just a wonderful candidate. I think, very frankly, that Native America is going to be very happy with him.”

Salazar previously led Colorado’s Department of Natural Resources and worked as the state’s Attorney General. He also served on the U.S. Senate’s Energy and Natural Resources Committee. While in the Senate, he co-sponsored numerous legislative bills focused on Native American issues, including the National American Indian and Alaska Native Heritage Month Act, the Indian Health Care Improvement Act, the Sand Creek Massacre National Historic Site Trust Act, and a bill honoring Native Code Talkers.
 

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In what is viewed as a direct challenge to Tribal sovereignty and trade rights, New York Gov. David Paterson has signed a new law to impose and collect state sales taxes on tobacco products sold to non-Indians on Tribal land. With New York facing a multi-billion dollar budget deficit, revenue officials estimate the state could realize more than $62 million in new tax collections each year from the tobacco trade on reservations.

At the press conference announcing the new law, Gov. Paterson stated:

“We profess great respect for the Indian sovereign nations and we expect to continue to demonstrate that respect for them, and what we are going to do today is try to alleviate an issue that’s existed for a very long time and we won’t be able to alleviate it just today, but we hope we’re taking steps in what will be a process that will reach that goal and that end. With the current financial situation, this tax will help bring extra revenue for the state.”

The new law requires tobacco wholesalers to sign an oath, under penalty of perjury, stating that the cigarettes they sell will not be resold untaxed in violation of state law. A state appeals court enjoined a similar law in 2006 because the state had not developed a coupon system for reservation retailers to claim tax refunds on cigarettes sold to Tribal members. Gov. Paterson stated that the new law is intended to circumvent that particular issue and collect the tax without addressing it.

“Seeing that we can’t get around that encumbrance, (the state) introduced legislation that we will now ask for certification under penalty of law to those wholesalers that sell without collecting taxes. That’s in simple (terms) what the bill does. This is a new approach and we hope this will be an effective approach to solve this problem.”

Business leaders in the Haudenosaunee Confederacy have vowed to collaboratively battle any attempt by New York State to interfere in the Indian tobacco trade. Mark F. Emery, director of media relations in the Oneida Nation Public Affairs Department, stated that the new law will be immediately challenged in court.

“None of the state’s other efforts to infringe on sovereignty have worked, and there is no reason to believe this will work either. If the state is serious about resolving this issue, it will negotiate with Indian nations rather than constantly attacking them.”
 

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A growing number of Native American housing agencies are initiating legal action against the U.S. Department of Housing and Urban Development and its Office of Native American Programs, claiming the annual block-grant funds the Tribes receive from the agency under federal law have been illegally reduced. Over 30 reservation-based housing agencies are currently suing HUD to recover funds allocated to Tribal housing programs which HUD then retracted after conducting financial audits.

The first Tribal housing agency to sue HUD over the issue was the Fort Peck Housing Authority, which filed an action in the 10th Circuit in January 2005. The new lawsuits were prompted by Congress’ reauthorization of the Native American Housing and Self-Determination Act earlier this year. The legislation, which was signed into law by President Bush on Oct. 13, placed a November 28, 2008 deadline for Tribal housing authorities to file suit against HUD for any earlier actions by the agency that are subject to dispute.

The Tribal agencies assert that HUD has unlawfully “recaptured” funds allocated to Tribes, and thereby significantly impaired the housing authorities’ ability to provide housing for Tribal members. The agencies allege that HUD recaptured funds by reducing future Native American Housing and Self-Determination Act allocations to Tribal housing agencies in light of internal audit findings the early 2000s.

Recent new plaintiffs suing the department include the Sicangu Wicoti Awanyakapi Corporation of Rosebud, S.D.; Oglala Sioux (Lakota) Housing of Pine Ridge, S.D.; Turtle Mountain Housing Authority of Belcourt, N.D.; Winnebago Housing & Development Commission of Winnebago, Neb.; Lower Brule Housing Authority of Lower Brule, S.D.; Metlakatla Housing Authority of Annette Island, Alaska; Spirit Lake Housing Corporation of Ft. Totten, N.D.; and the Trenton Indian Housing Authority of Trenton, N.D..
 

Bureau of Indian Affairs house, Pine Ridge Reservation, South Dakota

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The Seattle Times recently ran an article entitled, "Saving Native Languages."  According to the article, there is a diminishing number of elders whose native tongue is their first language and tribes are racing to preserve their languages by teaching it to the youth in their communities.

In order to preserve this crucial aspect of their heritage, elders have compiled dictionaries for languages that were entirely oral; recording elders; transcribing tapes; and especially, teaching the next generation of speakers. They have even set up classrooms and prepared teachers to pass on the gift of the native language. At Tulalip Elementary, for example, classrooms are set up to teach children Lushootseed, one of Washington state's native languages. Approximately 80 percent of the students are of Native American decent, but nonnative children are just as interested in learning the new language. Incredibly, the article reports that by fourth grade, many of the children can speak in sentences, writing and following commands, all in Lushootseed. I had to learn English when my family immigrated from Poland and it's amazing how quickly I picked up the language as a seven year old child. It was easy and fun for me to learn a new language. Just as it is easy for the children attending Tulalip Elementary.  The article reports that  the students take to the language with ease and greatly enjoy the cultural experience of learning a new tongue, especially in the earliest grades.

According to the article, before the arrival of Christopher Columbus, more than 300 languages were spoken in North America. Today an estimated 175 or so indigenous languages are spoken in the United States but about 90 percent are moribund, with very few children speaking them as their first language. Today, there are about 16 native languages still spoken in Washington. They are languages as musical as their names: Makah; Okanagan, Klallam, Quileute, Lushootseed.

It is incredibly inspiring to hear that not only have Tribal elders taken a proactive role in preserving Native American languages, but that the youth have embraced learning the language that will give them one of the most intimate connections to their cultural heritage possible -- and that is one of the greatest gifts of all.

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Congress is expected to adjourn in December without sending a wide-ranging health care bill focused on Native Americans to President Bush, leaving Senate Indian Affairs Committee Chairman Byron Dorgan and Native American leaders to seek support from the incoming administration of President-Elect Obama. The bill was passed by the Senate earlier this year, and is likely to reappear in similar form in the next Congress.

The legislation would authorize expenditures of approximately $35 billion for Native American health care programs over the next 10 years. It would give Native peoples increased access to health care services, including screening and mental health programs. It also provides for funding increases for the federal Indian Health Service, subsidizes new construction and modernization of reservation-based health clinics, and promotes the recruitment of Native Americans into health professions. The bill also would increase Tribal access to Medicare and Medicaid.

Senate Indian Affairs Committee Chairman Byron Dorgan attributed the bill’s failure to a dispute over abortion funding. He said its passage through the House was complicated by an amendment added by Sen. David Vitter, R-La., that would bar any money authorized in the legislation from being used for abortions.
 

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On September 8, 2008, U.S. District Court Judge James Robart ruled that nine members of the Snoqualmie Tribe in Washington state were denied due process when the Tribal Council voted to banish them from the Tribe. The banished members filed suit alleging that their civil rights were violated by the banishment, and filed a Writ of Habeas Corpus charging a violation of the Indian Civil Rights Act. The dispute began when the nine members, who include five prior members of the Tribal Council, were accused of running an illegal “shadow government” as well as other violations of the Tribal Code. After months of internal conflict, the Council members were ousted, a new Council was elected, and the nine individuals were banished from the Tribe. The Tribe has argued that the dispute is a sovereign Tribal matter and does not belong in the federal courts; a further hearing is expected before the end of the year.

Banishment appears to be increasing in frequency across the country, as Tribes (many with limited or no Tribal Court systems) grapple with how to impose appropriate discipline upon members who deviate from accepted norms of behavior.  Although the rules and implications of banishment are Tribe-specific, it commonly represents a complete severing of the individual’s relationship with the Tribe, and a loss of recognition as a member thereof.  In effect, a person’s cultural, spiritual, and familial heritage is stripped away, and the bonds to the nation of their birth terminated. This method of punishment is unique within the borders of the U.S..  Under the laws of the United States, penalties for even the most serious crimes (including high treason) do not include revocation of citizenship status for natural-born citizens.  While some benefits of citizenship (e.g. the right to vote) may be revoked from convicted felons, one’s basic status as a citizen of the nation remains unaffected, and even a person sentenced to death will still “die an American”.  Indeed, under Western paradigms of justice it is almost inconceivable that a natural-born person could be told by the legal system: “You cannot call yourself French” or “You’re no longer Irish”.

As illustrated by the Snoqualmie case, there is sometimes a political component to the spectre of banishment.  When a power rivalry within a Tribe becomes too great, it can spawn the idea of “solving the problem” by simply removing a faction from the nation altogether.  Aside from the questions of fairness and cultural heritage, political banishments also seem likely to foment future unrest for the Tribe.  If people are told by Tribal leaders that they are no longer members of the nation, what other means do they have of regaining their heritage than the removal of those who issued the banishment order?  When a power struggle becomes a struggle for one’s very identity as a human being, it should be expected that the intensity and longevity of the fight will increase significantly.

Another issue that remains unclear is the extent to which banishment affects future generations of Native families. If a father is banished from the Tribe, are the “sins” that prompted the banishment also visited upon his sons?  What of the unborn progeny of the banished – are they condemned to enter the world without a Tribal identity?  Considering how mightily Tribes and their members have struggled through centuries to maintain their heritage against the onslaught of outside forces such as assimilation, boarding schools, and cultural genocide, a troubling irony is present in the contemporary utilization of banishment by Tribes themselves.

The legal, genealogical, cultural, and economic implications of banishment for the descendants of affected Native Americans are gigantic and far-reaching, and are deserving of careful analysis. A fine starting point is found in the article: Banishment as Cultural Justice in Contemporary Tribal Legal Systems by Patrice H. Kunesh of the University of South Dakota, published in the New Mexico Law Review in 2007.
 

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The current cinema blockbuster “Twilight” is, on the surface, a teenage vampire movie set in the somewhat unusual location of Forks, Washington. While the film doles out helpings of the standard teen angst, parental alienation, and enigmatic vampires typical for this genre, it also contains an interesting subplot – the vampires will not tread upon the traditional lands of the Quileute Tribe. This is due to the (cinematic) fact that Quileute members are descended from wolves, and evidently retain the power to shape-shift into supernatural wolf-hybrids that are deadly to vampires. An uneasy truce prevails between the two camps, with the Tribal members keeping constant watch on the local “undead” and remaining ever-ready to defend the Tribe’s territory against vampire incursions. Given the film’s success at the box office, a sequel appears inevitable, with a Battle Royale between the Forks Vampires and the Quileute Wolves as its likely centerpiece.

The Quileutes are a real-life Chimakuan Tribe living along the Quileute River on the Olympic Peninsula in northwest Washington state. The Tribal members depicted in the film are striking in every sense – stoic, wise, humorous, and physically appealing. As an added bonus, they possess the aforementioned supernatural powers, which clearly set them apart from the rest of the local community. Although it would appear that the filmmakers sought to cast the Tribal members in a positive light – and even provide them with physical and moral advantages over the rest of the population – they also unquestionably depict the Native American characters in the film as something other than purely human. While certainly legal under the First Amendment to the U.S. Constitution, do such mass-media portrayals of Native peoples as “different” serve to perpetuate negative generalizations - and thereby damage the culture and dignity of an entire people?

While current films may capture the most immediate attention, popular attitudes toward even the oldest interactions between Native peoples and European immigrants still reflect stereotypes engendered through various forms of media. Plimoth Plantation in Massachusetts features a re-creation of an English village from the 1600s and a Native American homesite, and Native American guides offer historical insights into the earliest connections between the two peoples. Yet a number of the thousands of people who visit daily bring with them startling misconceptions about the Native people, which still persist and are promulgated through free speech. Paula Peters, a member of the Mashpee Wampanoag Tribe, said one of the first things she learned when she started working at Plimoth in Massachusetts 30 years ago was: "People will say things that will hurt you." She’s overheard parents reprimand their children by saying, "If you don't behave I am going to leave you with this Indian squaw and she will cook you for dinner." Native docents at Plimoth have endured inquiries from guests such as "Where do you get your alcohol?" and "I thought we killed all of you." Officials who run the site work to educate visitors by putting up signs asking them to avoid stereotypes, and showing a short film at the beginning of the tour explaining what really happened when the Pilgrims first arrived on the continent.

To what extent have the essentially unbridled freedoms of the First Amendment served the interests of Native peoples? Freedom itself, in the absence of the power to effectively exercise it, is often of little value for those to whom it is ostensibly granted. The percentage of traditional media outlets owned or controlled by Native Americans is small to an extreme, leaving Tribal members with a correspondingly small amount of power to shape the portrayals of their people, history, and culture through these outlets. The negative and often fraudulent portrayals of Tribal members in film, television, books produced by the mainstream media cast a pall over Native heritage throughout the 20th Century. As we near the end of the first decade of the 21st Century, Native peoples will need to be increasingly proactive in their use of new-media forms such as YouTube, blogs, and mobile communications technology in order to create an accurate and forward-thinking consciousness regarding Tribal issues. These forms of communication are acting to decentralize the transfer of information, bringing a global audience within the reach of anyone possessing an Internet connection and the determination to put forth a positive message. Capitalizing on these technologies can and should bring the freedoms of the First Amendment to bear for the benefit of all Native Americans.

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