Opinion

Tim Giago: Clear and present danger to sovereignty

Monday, May 28, 2007

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.