Cherokee Nation Banishes African-American Members

In a move with significant legal and social implications, the current leadership of the Cherokee Nation has stated that it will banish 2,800 African Americans from its citizenship rolls. BIA Assistant Secretary Larry Echo Hawk has warned that the results of the September 24 Cherokee election for Principal Chief will not be recognized by the U.S. government if the ousted members, known historically as "Cherokee Freedmen," are not allowed to vote.

"The Cherokee Nation will not be governed by the BIA," Joe Crittenden, the Nation's acting Principal Chief, said in a statement responding to the U.S. Bureau of Indian Affairs.

The dispute stems from historical events that pre-date the Civil War. Certain native Cherokee owned slaves who worked on their plantations in the Southeast US, where the Cherokee Nation’s original ancestral homelands were located. By the 1830s, most of the Nation was forced to relocate to present-day Oklahoma via the infamous Trail of Tears, and some members brought their slaves with them. The current-day “Cherokee Freedmen” are descendants of those slaves.

Following the Civil War, a treaty was signed in 1866 guaranteeing tribal citizenship for the freed slaves. The U.S. government asserts that the 1866 treaty with the Cherokee Nation guaranteed that the slaves were tribal citizens, whether or not they had a native Cherokee blood relation.

The African American members of the Cherokee Nation lost their tribal citizenship last month when the Cherokee Supreme Court voted to support the right of tribal members to change the Nation's constitution on citizenship matters. The change meant that Cherokee Freedmen who could not demonstrate a native Cherokee blood relation were no longer citizens, making them ineligible to vote in tribal elections or receive benefits.

In addition to pressure from the BIA, the U.S. Department of Housing and Urban Development is withholding a $33 million disbursement to the Nation while the dispute remains unresolved. A federal lawsuit has been filed in Washington DC seeking to restore voting rights for the Cherokee Freedmen in time for the September 24 election for the Nation’s Principal Chief.

Tribal Building Code Legislation Urged To Protect Sovereignty

The International Code Council is mounting an effort to create an amendment to Section 408(d) of the Tribal Self Government Act of 2010, HR4347, that has passed the House and is currently pending in the Senate Indian Affairs Committee. The purpose is to help preserve the sovereign right of Tribes to establish building codes that best serve their infrastructure development needs, rather than having these codes dictated by the Bureau of Indian Affairs.

Currently, HR 4347 Section 408(d)(1) provides:

"d) Codes and Standards- In carrying out a construction project under this title, an Indian tribe shall--
(1) adhere to applicable Federal, State, local, and tribal building codes, architectural and engineering standards, and applicable Federal guidelines regarding design, space, and operational standards, appropriate for the particular project…"

This language assumes that the codes and standards adopted by the Bureau of Indian Affairs (BIA) are the same as, or consistent with, the codes and standards adopted by the Tribes, or by the jurisdictions in which Tribal construction projects are taking place. This is not always the case, as the BIA has adopted a building code (NFPA 5000) that is not currently in use by Tribes. If the BIA requires compliance with this code, which is inconsistent in certain areas with the International Building Code used by many Tribes, it could cause significant delays and increase the Tribe’s design and engineering costs.

The language the ICC is recommending to amend H.R. 4347 is as follows, to be added at the end of the first sentence of Sec 408 (d)(1):

"Where the applicable Federal guidelines or building code conflict with the building code adopted by the Tribe, the Tribal code shall be adhered to."

The adoption of by Tribes of civil codes for building projects and other activities is an important measure for the preservation of sovereignty. Federal agencies will more readily seek to impose their authority on Tribal activities if a Tribe does not have its own regulations in place to govern that activity. More information on this legislative effort regarding Tribal building codes is available from the ICC’s website.
 

After Federal Recognition Is Denied: "Why Didn't They Just Tell Us 'No' 30 Years Ago?"

You have your community and your place to go.  We don't have that.  But we're still together…


They've got their rules, and you've got to fit into the slot.   But we know who we are.


It kind of hurts, naturally, but it's not the end of the line…

These sentiments were expressed by members of Montana's Little Shell Tribe, after receiving notice this week that their petition for federal recognition had been denied – more than 30 years after it was first filed.

The Bureau of Indian Affairs’ 242-page rejection decision acknowledged that 89 percent of the Little Shell can trace their lineage to the Pembina Band of Chippewa Indians, but stated the Little Shell had failed to show enough "cohesion" during the early 1900s, after many of the Tribe's members had been uprooted and migrated between northern Montana and southern Canada. The Tribe has not had a secure homeland since the late 1860s, when Chief Little Shell and his people were excluded from a federal treaty signed with related Tribes.

As discussed previously on this site, the BIA uses an extremely complex and subjective set of criteria in analyzing petitions for federal recognition. For Little Shell, the BIA decided that members of the Tribe in Montana lived primarily in "already existing, largely multiethnic settlements." According to the BIA, "In none of these multiethnic settlements did the petitioner's ancestors constitute a majority or even a significant percentage of the population." Little Shell’s petition was thus denied based on a perceived lack of social and political cohesion.

For Tribes like Little Shell, the next step in the struggle for recognition is to seek legislative backing in Congress, in the hope that recognition can be obtained through pressure and laws enacted by elected representatives. Hopes for progress in this area were briefly raised by the announcement of President Obama's upcoming Tribal Nations conference in November. Unfortunately, invitations to the event were only sent to a select group of Tribes – those that already possess federal recognition.
 

Cohesive Tribal Government Is Critical For Economic Development

(Ken Lambert/Seattle Times)

While the appropriateness of government intervention in private business is a hotly-debated topic around the world, a clear truth is emerging closer to home: cohesive and sound governance is a crucial element for economic development in Native American communities. The proof comes both from success stories such as Tulalip and Pechanga, as well as the cautionary tale currently playing out within the Snoqualmie Tribe.

The Snoqualmie Tribe regained federal recognition in 1999 and last November opened a showpiece casino a half-hour from downtown Seattle The casino, financed with $375 million in debt, was conceived as a means of bringing prosperity to the Tribe's approximately 600 members. Instead, political infighting has brought turmoil, reduced revenue, and uncertainty regarding the Tribe’s economic future.

The problems stem from socio-political divisions that divided the Tribe’s governing body and rendered it unable to function effectively. "They were a split council and would not come together for joint meetings off and on since May," said Judy Joseph, superintendent for the Bureau of Indian Affairs (BIA) Puget Sound Agency. "To maintain a government-to-government relationship, they have to be a viable Tribal government," Joseph said. "If there is any question about that, it causes red flags to go up, and they were split, they were not meeting."  In August, the Tribe's administrative offices were padlocked and some of its federal funds frozen. Elders stepped in to dissolve the council and take charge until new elections could be held — but they had no constitutional authority to do that. The Tribe was facing the prospect of the U.S. government assuming administrative control of the Tribal government. The BIA offered mediation this month, which resulted in reinstatement of the council that was in place before the disputed May election.

Meanwhile, the new casino has only been producing one-fourth of the revenue originally budgeted, and its operations are mired in administrative and regulatory problems. Unresolved federal audit findings could expose the Tribe to significant liability, and until recently federal funds allocations to Snoqualmie were frozen by the U.S. government. To address these significant issues, the Tribe's general membership will meet this month to consider election procedures and set a date for a new council election.

While dissension and differences of opinion are common for any political entity, the need for Tribes to maintain a solid, functioning government structure is of paramount importance for both political and economic purposes. Both the federal government and private investors are wary of contributing capital in places where leadership is in doubt, making it crucial for Tribes to demonstrate that their decision making bodies and procedures are stable.

Mining Leases On Tribal Lands Produce Cash And Questions

 

(Crow Nation gas well - Reuters)

After years of legal wrangling, the Anadarko Agency office of the Bureau of Indian Affairs recently held the largest-ever auction of oil and gas mining leases on Tribal land. The auction offered mining lease rights on over 1500 plots located on Kiowa, Comanche, Apache, Fort Sill Apache, Caddo, Delaware, and Wichita Tribal and allotted lands. The sale netted just over $6 million in purchases, with the majority of the lease rights going to the Sodak, Marathon and Chesapeake oil companies.

Revenues like this are certainly much-needed in Native communities, but the money does not go directly into Native hands. The funds will be managed by the BIA in trust for the Tribes whose lands underlie the mining leases. As the claims in the Cobell litigation highlight, the fiduciary relationship between the BIA and Tribal members has been marred by allegations of mismanagement and breach of trust.  It will be incumbent upon Tribal governments and their members to monitor the revenue flow from these leases to ensure the funds are properly used for Tribal needs. A further question arises regarding future revenue streams from the mineral resources the leases are designed to produce. Whether Tribes will receive royalty payments from wells that begin pumping oil and natural gas on their lands – and how much money can be expected – is undetermined at this time.

Indian trust beneficiaries who have questions about this sale may contact their fiduciary trust officer using the interactive map on the OST Web site , or call OST’s Trust Beneficiary Call Center at 1-888-678-6836
 

The Blood Sport Of Federal Recognition

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?