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Indian lawyer cites 'hostile' atmosphere in Washington

Frank Ducheneaux has seen it all. As one of first Native Americans to roam the halls of Congress, he witnessed first-hand such landmark legislation as the Indian Self-Determination Act, the Indian Child Welfare Act and the Indian Gaming Regulatory Act.

"I am the past," Ducheneaux, a member of the Cheyenne River Sioux Tribe of South Dakota, jokingly said on Thursday.

But as reflected on more than 30 years of involvement in Indian affairs, Ducheneaux presented a rather serious message to the Federal Bar Association's Indian law conference in Albuquerque, New Mexico. He told Indian law practitioners and students that today's climate in Washington, D.C., is an extremely "hostile" one.

"The future looks to me ... for Indians, if not for the whole country, kind of bleak," Ducheneaux said during his keynote address.

Ducheneaux was the first Native American to serve as legal counsel to the House committee that oversees Indian affairs. From 1973 until 1990, he helped pass major pieces of legislation that heralded a new era in federal Indian policy.

"All of these things came together at the right time in history," Ducheneaux said of law like the Indian Financing Act, the Menominee Restoration Act and the American Indian Religious Freedom Act, all passed during the 1970s.

This "golden era" -- as Ducheneaux called it -- continued well into the next decade with such laws as the Native American Graves Protection and Repatriation Act of 1990. But he said the situation began to change slowly with budget cuts and a shift in policy during the Reagan administration and a dramatic change in the way the U.S. Supreme Court viewed tribes.

"The Supreme Court in many, many cases," he said, "could vindicate and validate the rights of self-governance and tribal sovereignty."

"You sort of knew what to expect," he added. "But it changed," he said, as tribes began to lose case after case, a trend that continues to the current day. He said the recent decision in the Oneida Nation case was a prime example of the negative atmosphere tribes encounter when they seek to protect their rights.

"That is the kind of intellectual dishonesty that is running rampant in the courts," Ducheneaux said of the majority's opinion that, without the benefit of briefs on the issue, said the tribe lost all rights on land illegally taken by the state.

Ducheneaux said this attitude pervades nearly every aspect of Indian affairs in the Washington, D.C. "We have a hostile presidency and administration," he said. "We have a hostile Congress."

Tribes and Indian lawyers have let the National Indian Gaming Commission "destroy tribal sovereignty with no reaction," he charged. He said the NIGC is asserting far too much authority into tribal activities that weren't contemplated, or even included, in the language of IGRA.

Other happenings in the nation's capitol not directly related to Indian issues also speak to this hostile atmosphere, he said. He cited comments by House Majority Tom DeLay (R-Texas) that "threaten the courts" and efforts in the Senate to change the rules so that judicial nominees can no longer be filibustered.

DeLay -- under fire for numerous allegations of ethical lapses, including ties to a disgraced lobbyist accused of bilking tribes out of more than $82 million -- has since apologized for his remarks about the "out of control" judiciary but remains adamant about Congressional oversight of the courts.

Ducheneaux said tribal leaders themselves are changing their views about sovereignty, especially in light of the explosion of the $18 billion Indian gaming industry. "You did not compromise tribal sovereignty for a pot of gold," he said. "Indian tribes are not entities that exist to run casinos."

To combat these developments, Ducheneaux encouraged tribal members and students to become more active in Indian issues. He said tribes and Indian law practitioners should be take a "judicious" approach about litigation.

"We should be very careful about the kinds of cases we bring to the courts," he advised.

Ducheneaux, who has since retired from the practice of law, only had one exception. He encouraged tribes to "sue the pants off" the NIGC even though some people have told him: "If we take them to court, we're going to lose." His response: "Well, we're losing now."

The Indian law conference, in its 30th year, began yesterday with a theme of "Seeing the Future Through the Past." Sessions on the opening day focused on the justice system in Indian Country, taxation involving tribes and tribal members, economic development and indigenous rights in the global arena.

The conference concludes today with discussions about legal strategy for the next 30 years, more taxation issues, tribal-state relations and ethical considerations in the wake of the Jack Abramoff lobbying scandal.

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