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Tim Giago: Clear and present danger to sovereignty
Monday, May 28, 2007
Filed Under: Opinion

Indian law, sovereignty and jurisdiction are not “one size fits all” issues in Indian country. There are too many variances in how different states view the Indian nations within their borders and even in how the federal government reacts to issues of sovereignty.

With the surge in Indian gaming in states like California, a state where Public Law 280 gives the state government jurisdiction over law enforcement and the courts, the issues are far different than, say, in South Dakota, where the state government has no jurisdiction.

When Public Law 280 was first pushed upon the different states by the federal government it was intended to open the doors for state jurisdiction on Indian reservations. The tribes of South Dakota, the Lakota, Dakota and Nakota, have always been strong advocates of their own sovereign status. They had been at war with the state government for too many years to not understand that state jurisdiction in their courts and in law enforcement would automatically bring about severe inequity.

The former president of the Rosebud Sioux Tribe, Robert Burnette (now deceased), fought the idea of Public Law 280 tooth and nail. He pushed the reality that if the state assumed jurisdiction over the tribal courts, jails and law enforcement, the costs to the state would be prohibitive. With nine Indian reservations in the state and upwards of 70,000 Indians, the transition alone would have cost the state millions and implementing and sustaining the process would have cost millions more.

South Dakota is a very conservative state and when faced with the prospects of having to shell out millions in order to implement the conditions of Public Law 280, they balked and decided that this prospective entanglement best be left in the hands of the federal government. Mr. Burnett’s efforts paid off and South Dakota did not adopt the law. That was not the case in states like California. There was no visible Indian opposition to the suggested law and it passed the state legislature without a problem.

The tribes in California are numerous but very small and they have a small land base. They were among the poorest of tribes in America getting little financial support from the state government until the advent of casino gambling. Situated in a state with a large population, the success of their casinos was almost preordained. But problems started to develop when the different tribal governments began to disenroll tribal members. According to Robert Edwards, a former vice chairman of the Enterprise Rancheria, there are now about 3,000 members of California tribes that have been disenrolled since Indian gaming became their main source of income. Edwards himself was disenrolled in 2003 along with 70 other members of his tribe.

Edwards said that in too many cases the Bureau of Indian Affairs dodges the bullet in dealing with the problem of tribes disenfranchising members by saying it’s a membership issue they cannot deal with because of tribal sovereignty. “That excuse simply doesn’t fly anymore as many tribal governments are violating the civil rights and human rights of their members while showing a total disregard for their tribal laws,” he said.

Are the tribes disregarding tribal law or state law? As sovereign nations they have every right to enact and implement their own laws and tribal laws may not always follow the dictates of state law because oftentimes they are constructed around culture, spirituality and traditions that far outdate state law. One Native American legal scholar requesting anonymity said, “Now apparently California is going to use the disenrollment issue to expand their encroachment on the sovereignty of California tribes. And as they say, ‘As California goes, so goes the nation.’” She continued, “This is very dangerous, but what can large, land-based treaty tribes do when smaller tribes in P.L. 280 states start us down this path? And if we ever find ourselves in a strong financial position, will we begin to face some of the same issues?”

The larger treaty tribes fought for generations to take control over their own future. They fought hard to take back the right to name their own tribal members out of the hands of the BIA. They knew the history of their own membership and considered themselves imminently more qualified to choose their own members. After many years of protest and action, they finally assumed that right.

The sad case of the Cherokee Nation is now unfolding and once more the BIA has stepped in to interfere with the sovereign rights of the Cherokee people to select their own membership. If the so-called Freedmen of African American descent win this case, it would set a bad precedent for all of Indian country. One does not have to agree with the decision made by the registered voters of the Cherokee Nation to make the decision to remove the Freedmen from their rolls, but it is the legal right of this sovereign nation to make that decision. Too many Indians have fought and died to earn that right.

When the Indian Civil Rights Act was first introduced many tribal leaders fought its implementation vigorously because it infringed upon some of their cultural, spiritual and traditional rights. Many saw the Act as a danger to their sovereign rights and although it has not, to date, lived up to those early fears, the possibilities are still there and what is happening in California and Oklahoma presents a clear and present danger to the inherent sovereignty of the Indian nations.

Tim Giago, an Oglala Lakota, was the founder and publisher of Indian Country Today. He was a Nieman Fellow at Harvard in the Class of 1991. His latest book “Children Left Behind, the Dark Legacy of the Indian Missions,” is now available at: order@clearlightbooks.com. The book just won the Bronze Star from the Independent Publishers Awards.

More Tim Giago:
Tim Giago: Rich tribes still not helping poor ones (5/21)
Tim Giago: Standing ground against 'Dropout Nation' (5/14)
Tim Giago: Indian prophecies and medicine (5/7)
Tim Giago: Help the poorest county in America (4/30)
Tim Giago: Honoring those who died at Washita (4/23)
Tim Giago: Mainstream media ignores the real issues (4/16)
Tim Giago: Racism and hypocrisy over Imus (4/11)
Tim Giago: Kill the Indian and save the child (4/9)
Tim Giago: The dark legacy of boarding schools (4/2)
Tim Giago: Tribes continue to surrender sovereignty (3/26)
Tim Giago: Venezuela steps up for Indian nations (3/19)
Tim Giago: Cherokee Nation votes out Freedmen (3/12)
Tim Giago: Oglala Lakota Tribe still struggling (3/5)
Tim Giago: A view from South Dakota, the 'red' state (2/26)
Tim Giago: 'Chief Illiniwek' does his last dance (2/19)
Tim Giago: Greed is the new God in Indian Country (2/12)
Giago discusses 'dark legacy' of boarding schools (2/5)
Tim Giago: Writing helped heal wounds of abuse (1/29)
Tim Giago: How many others will die over Iraq? (1/22)
Tim Giago: Apache journalist opens doors in media (1/15)
Tim Giago: Newspaper fills gap in South Dakota (1/8)
Tim Giago: Recognize an Indian hero in the new year (1/2)
Tim Giago: Christmas and Lakota traditions (12/25)
Tim Giago: Sen. Johnson never wanted the spotlight (12/18)
Tim Giago: The 1890 massacre at Wounded Knee (12/11)
Tim Giago: R-word just as insulting as the N-word (12/4)
Tim Giago: Mainstream media lacking in accuracy (11/27)
Tim Giago: Thanksgiving - A holiday of the imagination (11/22)
Tim Giago: State stifling growth on reservations (11/20)
Tim Giago: Taking stock of Election Day 2006 (11/13)
Tim Giago: Few roles for Indians in Hollywood (11/6)
Tim Giago: Freedom of the press has a chance (10/31)
Tim Giago: Important election day for South Dakota (10/24)
Tim Giago: White media ignores Indian contributions (10/17)
Tim Giago: Termination a dirty word in Indian Country (10/10)
Giago: Domestic violence from a male perspective (10/3)
Tim Giago: Culturecide started with innocent children (09/19)
Tim Giago: Indian people mark 500 years of terrorism (9/11)
Tim Giago: Lawsuit challenges church on abuse (9/6)
Tim Giago: Day of reckoning for Oglala Sioux Tribe (8/29)
Tim Giago: Tribes giving up their sovereignty (08/08)
Giago retires as editor and publisher of magazine (8/4)
Tim Giago: States looking for ways to take from tribes (8/1)
Tim Giago: Religion invaded Native America (7/25)
Tim Giago: Daily screw ups in tribal governance (7/18)
Tim Giago: Happy Birthday to Van Cliburn and me (7/11)
Tim Giago: South Dakota tilting further to the right (7/3)
Tim Giago: Americans still the invaders in Iraq (6/27)
Tim Giago: Tribal colleges in Bill Gates' backyard (6/21)
Tim Giago: Gaming brings new wealth, new problems (6/13)
Tim Giago: 'Oz' author called for genocide of the Lakota (6/6)
Tim Giago: Too much uncertainty in gaming (5/30)
Tim Giago: Deny gaming to newly recognized tribes (5/23)
Tim Giago: Congratulations to the class of '06 (5/16)
Tim Giago: Rich tribes should help poorer tribes (5/9)
Tim Giago: Fighting substance abuse at Pine Ridge (5/2)
Tim Giago: Censorship in the mainstream media (4/25)
Tim Giago: Brainwashing on Pine Ridge Reservation (4/18)
Tim Giago: The growing pains of tribal sovereignty (4/11)
Tim Giago: Indians most affected by immigration (4/4)
Tim Giago: Little attention for Native American Day (3/28)
Giago: Oglala Sioux president on state abortion law (3/21)
Tim Giago: The road to true tribal sovereignty (3/14)
Tim Giago: The basketball miracle of 1936 (3/7)
Giago: Real problem in South Dakota is race relations (2/21)
Tim Giago: Yes, Virginia, Indians do pay taxes (2/14)
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Tim Giago: Lions, Tiger, Bears and Indian mascots (1/31)
Tim Giago: Christians and Muslims still at war (1/24)
Tim Giago: Bush started Iraqi war over 'dark lie' (1/17)
Tim Giago: Fire Thunder out of limbo after 66 days (1/10)
Tim Giago: The Olympics of Indian basketball (12/20)
Tim Giago: BIA schools turned abused into abusers (12/13)
Tim Giago: Fire Thunder shakes up establishment (12/6)
Tim Giago: Della Warrior steps down from IAIA (11/29)
Tim Giago: Deloria gave Indian people a voice (11/22)
Tim Giago: Indians never forced religion on others (11/15)
Tim Giago: Exposing false medicine men (11/8)
Tim Giago: Government ignores Indian health problems (11/1)
Tim Giago: Indian newspapers revise history (10/25)
Tim Giago: Two friends make journey to spirit world (10/18)
Tim Giago: Politicians need to know Indian law (10/11)
Tim Giago: Doors opening to Indians in South Dakota (10/4)
Tim Giago: 'Indian' myths and misconceptions (9/27)
Tim Giago: Lessons learned from Hurricane Katrina (9/20)
Tim Giago: NCAA loses its spine on mascot policy (9/13)
Tim Giago: The Indian 'scandal sheet' phenomenon (08/30)
Tim Giago: Indians became refugees in own land (8/23)
Tim Giago: Censor tribes for supporting mascots (8/17)
Tim Giago: New addiction takes over in Indian Country (08/02)
Tim Giago: Tribes trade sovereignty for dollars (7/26)
Giago: Seminole Tribe wrong on Indian mascots (7/19)
Giago: Underground Railroad to escape boarding school (7/12)
Giago: Skeletons hidden in Rapid City's closet (07/07)
Tim Giago: Air Force base not a blessing to Lakotas (6/30)
Tim Giago: Tribes to claim downsized military bases (06/07)
Tim Giago: First revolutionary was a Native man (5/31)
Tim Giago: Many 'wannabe' tribes seek recognition (05/17)
Tim Giago: South Dakota press censors Indian writers (05/10)
Tim Giago: White lawyers growing fat off tribes (04/26)
Tim Giago: Gay marriage debate killed Democrats (4/19)
Tim Giago: It's time for wealthy tribes to think Indian (04/05)
Tim Giago: Wealthy tribes don't need federal funds (03/31)
Tim Giago: Gaming leads to addiction, crime (03/22)
Tim Giago: Discrimination in the media and advertising (03/08)
Tim Giago: Black Hills land theft a dishonest deal (03/01)
Tim Giago: Committing slow suicide with foods (02/15)
Tim Giago: Bush probably still against Indian gaming (01/25)
Tim Giago: Calvary re-enactors should know better (01/18)
Tim Giago: Racism continues in South Dakota (11/30)
Tim Giago: Should we listen to Osama bin Laden? (11/23)
Tim Giago: GOP moral values will hurt Indian Country (11/09)
Tim Giago: Indian reformists stamped out tribes (11/02)
Tim Giago: I'm not a racist and I haven't seen NMAI yet (09/29)
Tim Giago: Eastern tribes are African-American (09/15)
Tim Giago: Indians have cause to fear Republicans (07/21)
Tim Giago: Casinos create culture of 'us' and 'them' (06/30)
Tim Giago: Boarding schools cause of many ills (06/14)
Tim Giago: 'Real' Indians don't fight over money (04/05)
Tim Giago now plans to run for Senate as independent (03/31)
Tim Giago: Indians pay no taxes, and other myths (01/26)
Giago: Indian gaming erodes tribal sovereignty (01/07)
Giago: Gays were highly respected by Sioux Nation (09/22)
Tim Giago: I'm a fully recovered Catholic (09/11)
Giago: State should refund tax money first (08/06)
Giago: Oprah show changed minds on Indian mascots (07/31)



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