Tuesday, February 24, 2009

Another Crack in the Sovereignty Dam: USSC limits Fed's Authority to Hold Land Into Trust

The Supreme Court on Tuesday limited the federal government's authority to hold land in trust for Indian tribes, a victory for states seeking to impose local laws and control over development on Indian lands.

From WaPo

The U.S. Supreme Court on Tuesday limited the federal government's authority to hold land in trust for Indian tribes, a victory for Rhode Island and other states seeking to impose local laws and control over development on Indian lands.
The court's ruling applies to tribes recognized by the federal government after the 1934 Indian Reorganization Act.
The U.S. government argued that the law allows it to take land into trust for tribes regardless of when they were recognized, but Justice Clarence Thomas said in his majority opinion that the law "unambiguously refers to those tribes that were under the federal jurisdiction" when it was enacted.
The ruling comes in a case involving the Rhode Island-based Narragansett Indian Tribe and a 31-acre tract of land that the tribe purchased in rural Charlestown, about 40 miles south of Providence.
At issue was whether the land should be subject to state law, including a prohibition on casino gambling, or whether the parcel should be governed by tribal and federal law.
"Thanks to the crystal clarity of this decision, however, there can be no confusion that Rhode Island has the power and the ability to protect our citizens' rights, health, safety and welfare everywhere in our state," Rhode Island Attorney General Patrick Lynch said in a written statement.
Jack Killoy, an attorney for the tribe, said he was disappointed that the ruling could cast a legal shadow over the land holdings for tribes like the Narragansetts that were federally recognized after 1934.
"The court has narrowly construed a statute intended to benefit all Native American tribes and reversed 75 years of federal Indian policy," Killoy said. "It affects so many tribes throughout the country that Congress is going to need to address this."


Anonymous said...

This decision by the USSC rejects the cannons of construction and the reading of treaties and statutes in favor of Indian tribes, while rejecting the common practice and actions of the Secretary of the Interior for the past 70 years. I expect there to be a legislative fix to this problem.


Jim said...

Many tribes are rejecting their OWN statutes and constitutions when they disenroll their members. But, as often happens with bullies, they cry when it happens to them.

Pechanga acts outside their own constitution in their disenrollment of 25% of their tribe.

t'eetilawuncha! said...

I do not support this. This ruling does not help our cause, and may in the long run affect our children in a negative rather than a positive.

Anonymous said...

I look forward to the day that California voters come to their senses and vote for gambling Casinos on all land...not just Indian land...and believe me....its coming...especially with these greedy tribal leaders and arrogant members.
They have a sense of not being made to follow the same rules as everyone else...they are above the laws.....when we have the water rationing this summer...how are you going to keep that golf course green Pechanga....that beautiful land that you ruined and turned into a golf course...wasnt that supposed to be sacred land?...what a joke when it is all brown from lack of water...or are you exempt from those laws as well?..California voters will love that...they cant wash their cars, but you will have your fountains running and green unnatural golf course?....DONT THINK SO!!!!

NDNLady said...

t'eetilawuncha! Good for you. I have been accused here of not understanding the pain an individual feels who has been disenrolled. That if it were happening to me, I‘d feel differently. Maybe so, but I pray not. I was taught that being a citizen of my tribal naion is being a part of something that is far greater than just the sum of its parts. That a tribal nation is not just a group of individuals. And, in fact, that is the truth. That is why we have sovereignty, or the right to self-determination. A right that comes with responsibility. And it is certainly true that the responsibility is greatest for those who serve in public office, but it is very real for every tribal citizen. Sovereignty is not what is failing you. Individuals, who out of greed have put themselves ahead of their responsibility, have. Do you want to be individuals who do the same out of anger and bitterness?

When you attempt to right the wrongs done by corrupt individuals in government, you can certainly say that you are fulfilling a very important responsibility to the greater good. But if you choose to do that by eroding the very thing that is essential to the greater good? Burning down the family farm in the name of your grandchildren’s right to inherit a burned out husk? That’s a very real risk. That and of course, the fact that you have no ability to predict where a wildfire will spread.

‘aamokat says “Again, it is tribal governments such as Redding and Pechanga that will be to blame if sovereignty is eroded, not us.” Well, yes and no. The officials in those governments can certainly be blamed for their actions but that does not relieve you of the responsibility for yours. For the choices you make in response. That’s the equivalent of saying “But he hit me first”. To which your grandmother would always say “Two wrongs don’t make a right”
or you.

just do it said...

I also support legislation to have legal gaming in all of California, AND JUST WHY NOT?
Someday we will get to vote on this, and since I voted YES to Indian Gaming I will also support a Yes vote to that measure.

Allen L. Lee said...

These following excerpts reflect my view of sovereignty and responsibility. The sovereign may have the right to make a bad decision, but they also have a responsibility to correct it. If they neglect or refuse to correct it, then other sovereigns reserve the right to act on the behalf of those wronged:

1. "Blood, race and sovereignty in Cherokee Freedmen dispute
Thursday, April 26, 2007

Others were conflicted because they believe tribes should be able to define membership without outside interference. "Sovereignty is the right to make a bad decision," said Gavin Clarkson, a member of the Choctaw Nation of Oklahoma.

2."“Citizenship of the Freedwomen and Freedmen
Updated: 5/23/2008 Posted: 5/23/2008

We're imitating the enemy
Shannon Prince
May 16, 2008
Indian Country Today

“Backlash against a nation's sovereign decision is not denial of that nation's sovereignty. Being sovereign means you can make decisions freely - it doesn't mean others have to agree with those decisions”

3.Sudan leader faces Darfur war-crimes charges
ICC issues warrant over alleged crimes against humanity and war crimes

updated 7:23 a.m. PT, Wed., March. 4, 2009

THE HAGUE, Netherlands - The International Criminal Court issued an arrest warrant Wednesday for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity in Darfur. He is the first sitting head of state the court has ordered arrested...
..."He is suspected of being criminally responsible ... for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, ...and forcibly transferring large numbers of civilians, and pillaging their property," court spokeswoman Laurence Blairon said.

I think Clarence Thomas was wrong on this decision. No surprise though.

Allen L. Lee said...

Didn't want to overlook the most important part of that article, a call for non-Indian federal congressional intervention by the tribal attorney,

""The court has narrowly construed a statute intended to benefit all Native American tribes and reversed 75 years of federal Indian policy," Killoy said. "It affects so many tribes throughout the country that Congress is going to need to address this."

Somebody should contact that attorney and tell him his grandma said "Two wrongs don't make a right" or better yet, follow the advice that the Pechanga gives their dis-enrollees and tell the Narragansett to go on with their lives. That should work a lot better than Congress addressing it.

Allen L. Lee said...

Grandma might be right depending on the problem:

-4 + -4 = -8, but -4 × -4 = 16

Allen L. Lee said...

Getting to the heart of the problem with the U.S. and the Narragansett, and for that matter most tribes east of the Mississippi, "race and sovereignty":

"Intermarriage and time have blurred the lineage of many Indian tribes. Black blood flows strong through the Narragansetts in Rhode Island, the Lumbees of North Carolina, the northeastern Pequots of Connecticut. And as bingo halls and casinos enrich some once-poor tribes, there have been frequent disputes over who has enough native blood to qualify as an Indian.


"Chief Cunha is in business with Atlantic City casino developer Donald Trump, a partnership of almost comic irony; just a few years ago Trump complained to Congress about unfair competition from Connecticut's Indians. He told the lawmakers, "they don't look like Indians to me."

"Black Indians learn to embrace 2 worlds
By Eileen McNamara - More Articles
Published on 11/11/2001

Blacks and Indians, particularly those in the Northeast, intermarried frequently, giving rise to tribal groups such as the Eastern Pequots of North Stonington and the Golden Hill Paugussetts of Trumbull, composed almost exclusively of Black Indians.
For the Easterns, the issue of mixed cultural heritage has become a central factor in their petition for federal recognition. The tribe has argued, in documents submitted to the U.S. Bureau of Indian Affairs, that they have been discriminated against not only by non-Indians for their mixed ancestry, but also by their own brethren.
The Paucatuck Eastern Pequots, a rival tribe that is competing with the Eastern Pequots for federal recognition and which shares a Lantern Hill reservation with the Easterns, has told the BIA that the Easterns are not Indians, but members of a large, extended family that has “fashioned itself into a tribe.”
The Easterns say they and the Paucatucks are really one tribe, but that the Paucatucks, a predominantly white tribe, have rejected the Easterns in part out of racial intolerance.
In fact, Connecticut's established Indian tribes all appear to be divided along color lines. The Mohegans, Schaghticokes and Paucatucks have been aligned for years, as have the Easterns, Mashantuckets and Golden Hills.
The Paucatucks and Mohegans have argued that the divisions are not based on race, but longstanding family alignments.
Along with the forced relocation of native peoples to west of the Mississippi during the 1830's was the simultaneous forced assimilation of all native people who remained east of the Mississippi. To this day it is most likely the mindset of most eastern U.S. residents that the native peoples "final solution" of the 1830's removed any semblance of native sovereignty in the eastern U.S. The most recent payment for "stolen lands" to the Seminole for Florida land losses follows that there will be no , "right of return" for the Seminole nor right of sovereignty east of the Mississippi. In the minds of eastern U.S. citizens native sovereignty is still something that belongs in the "Indian territories either on restricted reservations or at least "West of the Mississippi."

Allen L. Lee