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

(photo: Genesis Realty)

The San Francisco Peaks in Northern Arizona are considered sacred lands by more than a dozen Tribes in the region. Stunningly picturesque, the Peaks are also home to the Arizona Snowbowl – a popular ski resort that attracts thousands of people to its slopes each year. Tourism in sacred Tribal lands is often a source of socio-political tension, but when the proprietors of the Snowbowl sought a special permit from the US Forest Service to begin spraying the Peaks with artificial snow made from treated sewage water, the Navajo Nation and other local Tribes were moved to action.

Instead of utilizing typical principles of environmental law, the Tribes took a different approach. They petitioned for an injunction against the Snowbowl under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, a federal law enacted in 1993 to prevent government actions that would substantially burden a person's free exercise of religion. The RFRA prohibits the federal government from placing a “substantial burden” on a person’s exercise of religion unless the government’s action furthers a “compelling government interest” or “is the least restrictive means of furthering that compelling government interest.” It also reinforces the “strict scrutiny” test for any governmental action that would tend to impinge on religious freedom – this is the most stringent and demanding standard for governmental actions, requiring that any the action be closely tied to a compelling government interest in order to be legal.

The Tribes argued that spraying “snow” made of treated sewage effluent on the sacred Peaks was both an unreasonable interference with their religious practices and not sufficiently related to a compelling government interest. Since the Snowbowl is located on land controlled by the US Forest Service, the issuance of a permit for the artificial snow is a governmental action subject to scrutiny under the RFRA. The Tribes succeeded in convincing a 9th Circuit panel that the spraying was a violation of the RFRA, but the decision was reversed by the full 9th Circuit Court of Appeals. The Tribes then petitioned the US Supreme Court and are currently awaiting review.

As global climate change increasingly calls into question modern pollution-producing lifestyles, it is interesting to ponder ancient Native philosophies regarding the environment. In Pre-Columbian times, Native American Tribes created communities that lived in remarkable harmony with nature. The Anasazi cliff dwellings in Canyon de Chelly provide a striking example of people building and operating a society based on knowledge of and respect for their natural surroundings. Those familiar with Native American culture know that this approach was based on something far deeper than mere geographic expediency; Native people viewed the earth as sacred, and embraced its preservation as a spiritual imperative.

Using legal tools like the RFRA, contemporary Native communities can work to heighten awareness and protection of lands that have ritual and religious significance – and at the same time make positive contributions to the environment for the benefit of all people.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

(photo: AIM-Arizona Chapter)

The violent events associated with Wounded Knee, Pine Ridge, and the American Indian Movement (AIM) have proved to be among the most haunting chapters in modern Native American history. A recent court decision ensures this controversial book will remain open longer still, as U.S. District Judge Lawrence Piersol has delayed again the trial of two men charged in the slaying of a fellow AIM member 33 years ago.

John Graham and Richard Marshall were scheduled to stand trial Feb. 24 in Rapid City, South Dakota on charges they committed or aided and abetted the first-degree murder of Annie Mae Aquash on the Pine Ridge Indian Reservation in 1975. Ms. Aquash was among the militants who occupied the village of Wounded Knee in a 71-day standoff with federal authorities in 1973, that included exchanges of gunfire with agents who surrounded the village.

Arlo Looking Cloud, a Lakota who was living homeless in Denver, was convicted in 2004 for his role in the murder and sentenced to life in prison. He is now stated to be cooperating with the government in its case against Graham and Marshall, leading to their indictments. Witnesses at Looking Cloud's trial said he, Graham and Theda Clarke drove Ms. Aquash from Denver in late 1975 and that Graham shot her as she begged for her life. Prosecution witnesses accuse Marshall of providing the handgun and shells Graham used to killed Ms. Aquash, allegedly on orders from AIM leaders who suspected she was a government informant.

Graham has denied the killing but acknowledged being in the car from Denver. He was scheduled to stand trial in October, but the indictment was dismissed because it didn't show that either Graham or Ms. Aquash belonged to a federally recognized Tribe – a prerequisite for federal criminal jurisdiction. Graham descends from the Tsimshian Tribe in the Yukon and fought his extradition from Canada for more than four years. He was extradited in December 2007 after the Supreme Court of Canada refused to review his case. Ms. Aquash was a member of Mi'kmaq Tribe of Nova Scotia.

The trial is being delayed because Marshall's attorney filed a motion in January requesting at least another two months to prepare the case, stating that the trial likely will include testimony about AIM, Wounded Knee, the 1975 slaying of two FBI agents and other events. Judge Piersol’s ruling states: "The Court agrees with counsel for Marshall that this case presents complex legal and factual issues. The crime involves multiple defendants and allegedly occurred as part of a wide-ranging conspiracy arising out of the AIM movement of the 1970s." For those whose lives and families were shattered by the blood that was shed more than 30 years ago, the ghosts of Pine Ridge are about to rise once again.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Confederated Tribes of the Colville, a Native American tribe in northeastern Washington, is partnering with Clipper Windpower, a California company, to explore the potential for wind energy. Last July, Clipper placed three wind gauges on the Colville reservation. The wind testing is supposed to continue until about midyear.

If studies prove the wind blows hard enough and often enough there, Clipper will build a wind farm with up to 500 turbines. This would be a big boost to the local economy, as it is predicted that a wind farm of that size could create 50 to 200 temporary jobs during construction, then 10 to 20 permanent jobs to operate and maintain the wind turbines. Eventually, the tribes would own all or part of the wind farm, which is positive from a tribal ownership perspective.

This proposal to Colville is the company's first in a new focus to explore American Indian tribal lands for wind potential nationwide. Hopefully,this project will be successful so that wind opportunities for the tribes continue to grow.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The House and Senate are closing in on final draft legislation that would authorize the issuance by Tribes of up to $2 Billion worth of tax-exempt government bonds for economic development projects. The provisions are included in the “American Recovery and Reinvestment Tax Act of 2009” (H.R. 598) sponsored by Representative Charles Rangel of New York, a broad package of stimulus measures and tax credits designed to spur public infrastructure works and economic growth throughout the country.

Section 1532 of the Bill provides for federal support to “Indian Tribal governments” to issue up to $2 Billion in tax-exempt “Tribal economic development bonds”. The bonds will pay interest to investors who purchase them, but that interest will not be subject to federal taxes. The revenue generated by Tribes through the sale of these bonds may be used to provide capital for Tribal infrastructure projects and essential governmental functions. Tribes will not be permitted to apply such revenues to “any portion of a building in which class II or class III gaming is conducted”, nor for “any facility located outside the Indian reservation”.

The use of tax-exempt bonds by Tribal governments has increased significantly in recent years, as they provide both needed capital for Tribes and are attractive securities for tax-conscious investors. If signed by the President and fully implemented, H.R. 598 will provide significant assistance to Native communities in accessing capital markets for development projects in 2009.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The new Secretary of the Interior Ken Salazar recently told Tribal leaders in Washington D.C. that "First Americans will have their place at the table in the Obama administration."  Less than 24 hours after President Obama took office, Tribes throughout America have put that policy to the test.

The Northwest Indian Fisheries Commission, which represents 20 Tribes in the Pacific Northwest including the Tulalip, Stillaguamish, and Sauk Suiattle, submitted a 16-page request to President Obama for additional funding and the adoption of a formal policy supporting Tribal management of natural resources. The Commission's request also seeks:

1. The issuance of an Executive Order reaffirming the government-to-government relationship between Tribes and the US government.

2. An additional $12 million per year in funding for the Commission and an extra $4.5 million per year for the Columbia River Inter-Tribal Fish Commission.

3. Restoration of expansive water rights to Tribes; and

4. Enhanced legal protections for Tribal resources such as salmon and shellfish.

The Commission’s requests were followed closely by a letter to the President from a group of US Senators representing Native constituencies throughout the country, seeking significant new funding for infrastructure and social/educational programs in Native communities. The Senators’ requests included:

• $1.2 billion for Tribal health facilities construction and support;

• $360 million for construction of Tribal justice infrastructure and support;

• $568 million for construction of road and bridge projects on reservations;

• $658 million for construction of Tribal schools and colleges;

• $50 million for housing construction, weatherization, and heating in Native Communities;

• $80 million for Native job training and business development;

• $600 million for water infrastructure development in Tribal lands;

• $4.4 million for energy development on reservations; and

• $50 million to address Tribal land fractionation.

The proposal was submitted by Senators Tim Johnson, D-S.D., Byron Dorgan, D-N.D., Jeff Bingaman, D-N.M., Mark Begich, D-Alaska, Thad Cochran, R-Miss., Maria Cantwell, D-Wash., Jon Tester, D-Mont., Tom Udall, D-N.M., Ron Wyden, D-Oregon, Kay Hagan, D-N.C., Lisa Murkowski, R-Alaska, Daniel Akaka, D-Hawaii, Roger Wicker, R-Miss., and Chris Dodd, D-Conn.

During his campaign, President Obama stated:

“The American Indians I have met across this country will be on my mind each day that I am in the White House. You deserve a president who is committed to being a full partner with you; to respecting you, honoring you and working with you every day. That is the commitment I will make to you as President of the United States.”

On the strength of such pledges, Obama received the endorsement of over 100 Tribal leaders throughout America. The coming weeks and months will reveal the true strength behind these promises, and provide a realistic view of the future for Native communities.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Department of Energy (DOE) has issued a Request For Information seeking feedback from Tribes and other parties interested in the deployment of renewable energy in Indian Country in the contiguous 48 States. The information will be used by DOE for internal planning and decision making under the federal Tribal Energy Program. Although Tribal Trust land comprises 5% of the land area in the United States (55.7 million acres) and contains an estimated 10% of all energy resources in the United States, (both conventional and renewable), less than a few hundred megawatts of renewable energy has been developed in Indian Country. Moreover, most of those are land lease deals as opposed to Tribes having ownership positions in the projects.

The information sought in the RFI is intended to assist DOE in determining barriers to renewable energy deployment and the most beneficial and efficient way for DOE to help accelerate the deployment of renewable energy in Indian Country. Energy development in Indian Country holds the possibility of providing energy to power local economic development, supporting the growing Native American population, creating businesses resulting in local jobs, or creating a revenue stream to help overcome some of the poverty that exists in many Native communities. Importantly, energy produced locally can also support Tribal sovereignty.

The Emergency Economic Stabilization Act of 2008 extended Production Tax Credits (PTCs) for one year and broadened the eligible technologies, along with provisions for the long-term extension of Investment Tax Credits (ITCs) for renewable energy projects. As non-taxable entities, however, Tribes are not eligible for these credits unless they partner with a for-profit entity with tax liability. This restriction limits the ability of Tribes to have ownership positions in Tribal renewable energy projects. Further, the extension of PTCs and ITCs may limit renewable energy hardware availability and transmission capacity even for those Tribes that have investment funds.

Legislation has recently been introduced which may have enabled Tribes the ability to have ownership positions in energy development in Indian Country by allowing Tribes to transfer their PTCs to a taxable partner. These bills, however, have not been enacted. Hence, current Federal policy has not supported Tribally-owned renewable energy project development from a tax-mitigation perspective. Tribes now have an opportunity to highlight these discrepancies to the DOE and provide advice on how to eliminate current obstacles to energy development on Tribal lands.

Tribes and other interested parties should send responses to the RFI (one attachment only) via email with the title “RFI Response” to tribal@go.doe.gov. Responses should be submitted in Microsoft Word or PDF as an email attachment to the address above and received no later than 8:00 PM Eastern Daylight Time on February 28, 2009.
 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

On December 16, 2008, a federal appeals affirmed a decision protecting the rights of Native American voters in Martin, South Dakota. Siding with the American Civil Liberties Union, the U.S. Appeals Court for the Eight Circuit ordered local officials to correct violations of the Voting Rights Act  that prevented Native Americans from having an equal opportunity to participate in the political process and elect representatives of their choice.

According to the ACLU Voting Rights Project, this was a tremendous victory for the people of Martin, South Dakota, who, according to attorneys working on the case, have endured a long, hard struggle for equality at the voting booth. Undoubtedly, this ruling will provide Indian voters with the right to have an equal say in choosing their government.

In terms of background, the ACLU brought the lawsuit mid-2002 on behalf of two Native American voters who said that the redistricting plan adopted by the city that year had the purpose and effect of diluting Native American voting strength. Because the Native American population made up approximately 45 percent of the city's population, it would have been unable to elect any candidates of their choice to the city council because the redistricting plan ensured that white voters controlled all three city council wards.

The district court initially ruled in the city's favor in March 2005. The Native American plaintiffs appealed, and on May 5, 2006, the U.S. Appeals Court for the Eighth Circuit reversed the lower court's decision, sending the case back to the district court.

In December 2006, the district court not only ordered a "full and complete remedy" for the plaintiffs, but also affirmed many of the factual claims of voting discrimination that the voters had described in their original lawsuit, including the fact that the city's redistricting plan unlawfully dilutes Native American voting strength. The ruling from December 16th upholds that decision, as well as the adoption of voting system proposed by the plaintiffs.

This decision will undoubtedly provide Native Americans with an equal voice in the selection of city officials. The ruling is also an important reminder that the Voting Rights Act remains a valuable tool to guard against discrimination in the electoral process.

To view the decision, please click here.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Recent articles on this site have detailed a trend among Tribes to expand their wild game hunting activities beyond the boundaries of reservations. Tribal hunters in various regions are exerting long-held treaty rights and are pursuing game on land owned by the government or private parties, but within the Tribe’s traditional hunting grounds. Not surprisingly, this has become a source of friction between Tribal hunters and their and non-Tribal counterparts, who are obliged to obey a different set of regulations and restrictions for their hunts. One instance of such friction is reflected in the following letter, sent from a non-Tribal hunter in Washington state:

The Tribes feel they should be allowed to hunt on the same land we do, using their laws. I have seen first hand what these rights amount to. I elk hunt in the Colockum Wildlife Area. My family settled in this area around 1880. My Uncle owns the land that remained, and he sees what goes up and down the road. What they saw a lot of this summer was truck loads of dead elk. Starting at the end of July, as soon as antlers mature and harden, local Tribal hunters are decimating the Colockum elk herd. On the last Friday of deer season in the area, my dad and brother saw Indian hunters with a very large 7 point bull in the back. Nothing was open at the time for elk, but the elk was dead nonetheless. Relatives have seen truck loads of spikes, the only size bull us non-Indians are allowed to shoot. Just when we thought the practice of not shooting big bulls was starting to pay off, the Tribe is decimating them. Hunting in this area has been going downhill for the past 3 years. Now we know why. Soon, elk in the Colockum will go the way of salmon, crab, and the Nooksack elk herd, which was nearly wiped out by Tribal hunters.

These are strong opinions – which are of course countered by equally strong opinions regarding Tribal rights and past injustices. As Tribes and their members seek to more fully exercise sovereign or treaty rights – particularly in an era of economic distress and diminishing natural resources - clashes of interests with non-Tribal entities are likely to become more frequent. Legal battles are divisive and expensive, and rarely produce a completely satisfactory outcome for any party. With regard to the expansion of hunting rights, it may well profit everyone concerned to instead seek both communication and compromise, and find ways to share the bounty of the land without battling in court.

Models do exist for such cooperation, interestingly enough in closely-related areas such as fishing. Numerous agreements exist between Tribal and federal/state governments for the management and utilization of fish and shellfish resources, with a resulting balance that allows for reasonable annual catches for Tribal and non-Tribal fishermen alike. Applying these concepts to hunting, Tribes may have an opportunity to partner with non-Tribal hunters in developing game ranges for mutual benefit. Tribes blessed with lands populated with game have both a natural and economic resource which, if properly managed, could bring significant revenue from hunters and tourists while preserving and enhancing the environment and wildlife population. There are no significant legal impediments to such partnerships – it is only a matter of will.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On December 9-12, 2008 in Washington D.C. at a special session of the OAS Working Group in charge of negotiating the Draft American Declaration on the Rights of Indigenous Peoples, the Working Group identified regional concerns that an American Declaration on the Rights of Indigenous Peoples should reflect in comparison with the recently adopted United Nations Declaration on the Rights of Indigenous Peoples.

Since it was a special session, participants did not negotiate any language concerning the articles of the draft American Declaration. Instead, the session focused on evaluating the negotiation process and identifying specific measures that should be considered in future negotiations.

The Working Group reviewed the following major issues: 1) articles that were already approved, 2) articles that are close to agreement between indigenous and state representatives, and 3) articles containing complex issues where consensus has not been reached.

According to the Indian Law Resource Center, negotiations will resume on the American Declaration on Indigenous Rights early this year.

Specifically, the OAS Working Group  will start negotiating articles at its next negotiation session scheduled for February 16-20, 2009 preceded by preparatory meetings of the Indigenous Caucus on February 14-15, 2009.

This is an important notice because tribal leaders are encouraged to attend and give their opinions and comments. For more information about attending, please contact Shayda Naficy at 202.547.2800.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Organization of American States is pursuing the establishment of an American Declaration on the Rights of Indigenous Peoples, designed to address political, social, economic, and environmental issues confronting Native peoples throughout the Western Hemisphere. The OAS Working Group in charge of the effort has identified regional concerns that an American Declaration on the Rights of Indigenous Peoples should reflect, supplementing the recently adopted United Nations Declaration on the Rights of Indigenous Peoples.

The Working Group is currently focused on evaluating the negotiation process and identifying specific measures that should be considered in future negotiations in creating the draft Declaration. The Group has presently identified: 1) articles of the Declaration that have been approved by consensus, 2) articles that are close to agreement between indigenous and state representatives, and 3) articles containing complex issues where consensus has not been reached. The Working Group agreed to start negotiating those articles that are close to agreement between the participants at its next negotiation session scheduled for February 16-20, 2009 preceded by preparatory meetings of the Indigenous Caucus on February 14-15.

In his statement opening the recent draft session, Chief Karl Hill of the Cayuga Nation of the Haudenosaunee (Six Nations Confederacy) remarked:

Today the world faces climate change and global economic crises. Much of it is caused by greed and the intent to make profit at any cost. As a result, Indigenous Peoples, their lands, territories and resources are being endangered and exploited. Thus, the Indigenous Peoples of the Americas are at the center of both of these crises. As the most marginalized peoples in the hemisphere, Indigenous Peoples stand to suffer the most from the global economic downturn and have the most to lose from the monumental and unpredictable effects of climate change. …
Indigenous Peoples are people of peace who can contribute significantly toward resolving the many crises facing humanity today. The American Declaration is of critical importance. It will address the regional challenges of Indigenous Peoples in the Americas while fully respecting the standards of the universal United Nations Declaration on the Rights of Indigenous Peoples.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Just weeks before the new Presidential administration takes over in Washington DC, the federal Bureau of Land Management eliminated a regulation that provided congressional committees the power to require the Secretary of Interior to set aside public lands from uranium mining. The Bush administration’s decision may result in uranium mining on public lands near the Grand Canyon, in areas that are the traditional and spiritual home for numerous Tribes. Given the renewed interest in uranium mining as a source of alternative energy, Tribes in the Western United States are expressing concern about the potential environmental risks to their lands.

Charles Vaughn, chairman of the Hualapai Tribe, had previously offered pointed testimony on the issue before the House Subcommittee on National Parks, Forests and Public Lands and the House Subcommittee on Energy and Mineral Resources:

“Although we understand that this industry may provide clean energy for the world market, it is the aftermath of this endeavor that is of grave concern to my people. We do not want to see the byproducts of uranium production stored in places like Yucca Mountain for the remainder of our lifetimes and leave others with the concern of the potential harm this would bring to our progenitors Grandfather Water and Mother Earth. We as an indigenous people are taught to respect and hold sacred those elements that provide the essence of our life. It is out of this belief that we share our concerns for proposed uranium mining near Grand Canyon National Park.”

Rep. Raúl M. Grijalva, D-Ariz., authored a resolution through the House Committee on Natural Resources that required the Department of Interior to protect lands around Grand Canyon National Park from uranium mining. He expressed regret at the administration’s action to override the resolution:

“I am disappointed that the Interior Department under the Bush administration has chosen to throw out federal rules it finds inconvenient to its goal of allowing uranium mining within a few miles of our nation’s premiere National Park, the Grand Canyon. This last minute change puts at risk the health of millions of citizens of the West who rely on the Colorado River of the Grand Canyon for their drinking water supply, as well as visitors to the park and Tribal communities within and around the Grand Canyon.”

In contrast, Rep. Don Young, R-Alaska and the ranking member on the House Natural Resources Committee, applauded the new policy. “We cannot afford to have more of our nation’s vital minerals and energy supplies to be locked up by the ill-advised actions of a single Congressional Committee,” said Young.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Currently, a little over 560 Native American Tribes and Alaska Native organizations enjoy official federal recognition by the United States government. Hundreds of other Tribes across the country remain unrecognized, consigned to a political and legal purgatory and facing uncertain futures. The stakes could hardly be higher, as federal recognition brings national “legitimacy” as a Tribal entity, along with land, services, and money. Many Tribes have recognition applications that have been pending in the Bureau of Indian Affairs (BIA) for decades, yet the prospect of a final decision on their fate as a nation remains frustratingly unclear.

In order to attain federal recognition, a Tribe must establish its fulfillment of seven criteria to the satisfaction of the BIA:

(1) The Tribe has been identified as an American Indian entity on a
substantially continuous basis since 1900.
(2) A predominant portion of the Tribe comprises a distinct
community and has existed as a community from historical times until
the present.
(3) The Tribe has maintained political influence or authority over its
members as an autonomous entity from historical times until the
present.
(4) The Tribe must provide a copy of its present governing documents and
membership criteria.
(5) The Tribe’s membership consists of individuals who descend from
a historical Indian tribe or tribes, which combined and functioned as a
single autonomous political entity.
(6) The membership of the Tribe is composed principally of
persons who are not members of any acknowledged North American
Indian Tribe.
(7) Neither the Tribe nor its members are the subject of congressional
legislation that has expressly terminated or forbidden recognition.

Once a Tribe has submitted evidence on these seven criteria, the technical staff within BIA’s Branch of Acknowledgement and Research reviews the submitted documentation and determines when the petition is ready for active consideration. Once the petition enters active consideration, the BAR staff reviews the documented petition and makes recommendations on a proposed finding either for or against recognition. Staff recommendations are subject to review by the Department’s Office of the Solicitor and senior officials within BIA, culminating with the approval of the Assistant Secretary-Indian Affairs.

After a proposed finding is approved by the Assistant Secretary, it is published in the Federal Register and a period of further comment, document submission and response is allowed. The BAR staff reviews comments, documentation, and responses and makes recommendations on a final determination that are subject to the same levels of review as a proposed finding. The process culminates in a final determination by the Assistant Secretary that, depending on the nature of further evidence submitted, may or may not be the same as the proposed finding.

Much of the publicized controversy over recognition decisions stems from events that occur after a Tribe is recognized, such as taking land into trust and off the local tax registers, or the immunity Tribes generally enjoy from local environmental and business regulations. Yet before the matter can even get to that point, the burden of satisfying the seven criteria can be overwhelming. In many instances, the historical policies and actions of the US government were specifically designed to eliminate the very socio-political authority and consistency the Tribe is now required to prove. Furthermore, the ability of the federal government to objectively analyze a Tribe’s petition must always be suspect, as international relations of this type are always colored by the self-interest of the participants.

Interestingly, some of the strongest opposition to the federal recognition of a given Tribe often comes from an unlikely source: other Tribes. A recent article about recognition disputes in the Pacific Northwest details such conflicts and highlights a primary factor: economics. After persevering through grinding poverty for decades, Tribes that are presently realizing positive economic development are understandably keen to protect their gains and future potential growth. Casino gaming is a typical engine that drives such growth, and numerous Tribes have effectively cornered-the-market on gaming in their localities by virtue of being “the only game in town”. The recognition of a new Tribe in the same locality, with its own ability to open a casino, becomes an immediate cause for concern for the existing Tribe’s revenue stream.

On the political front, a typical inter-Tribal argument against recognition is that the aspiring Tribe was at some point in history subsumed within a larger, currently-recognized Tribe. The legal basis for such arguments is often a treaty, usually signed in the 19th Century, wherein the federal government and certain Tribes purported to recognize each other and divide up territory (and the people living therein) for governance. Yet Tribes themselves have long fiercely criticized the legitimacy of many of these agreements, having usually been signed at the conclusion of military campaigns where the overriding priority was simply to end years of horrific human suffering. Parallels can be drawn to the annexation of the Baltic Republics into the Soviet Union, of Balkan states into the former Yugoslavia, and of Tibet into China. In each instance there were treaties or other legal paperwork “legitimizing” these acquisitions of smaller nations by larger states, yet it was obvious to all that these political maneuvers were the direct and exclusive product of the power of the gun.

In recent decades, many nationalist movements around the globe have succeeded in removing the yoke of totalitarianism, and have formed or re-established new nations that more properly reflect the ethnic and cultural heritage of the people. Such movements have been almost universally recognized as legitimate, and they have been celebrated by the Western democracies as the political expression of natural human rights. Are Native Americans any less entitled to pursue their goals of establishing self-identified nations?
 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link