xxxx NATIVE SOVEREIGNTY Native Geographies (Geography / AIS 322) Prof. Zoltán Grossman Prof. Zoltán Grossman

Sovereignty 1.Paramount; supreme 2.Having supreme rank or power rank or power 3. Self-governing (American Heritage Dictionary) (American Heritage Dictionary)

To avoid instability, power is vested in a strong central authority. There can be no State without a Sovereign Sovereign is subject to God and agreements with other sovereigns Western legal concept of Sovereignty

xxxx Sovereignty (on-reservation rights) Political autonomy,Political autonomy, not state/local control not state/local control “Domestic dependent nation”“Domestic dependent nation” Tribal members citizens ofTribal members citizens of U.S., tribe, and state U.S., tribe, and state

“Trust Responsibility” Direct relationship between federal & tribal gov’ts Tribal land put “in trust” to become reservation Protects reservation from state & local gov’ts Puts tribe as “ward” at mercy of federal “guardian”

“Miner’s Canary” analogy “The Indian plays much the same role in our American society that the Jews played in Germany. Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, marks the rise and fall of our democratic faith.” By Felix Cohen, 1953 (Modern founder of federal Indian law)

Views of Native Land (Sutton) Ethnohistorical (cultural view) Legal/proprietary (land ownership) Political/jurisdictional (gov’t authority)

Ethnohistorical (Cultural view) Sacred sites Aboriginal title (if no treaty) Treaty lands Land claims (See sacred sites and treaty lectures)

Legal/Proprietary (Land ownership) Trust lands (reservation) Public lands Fee lands Private allotments

Political/ jurisdictional ( Gov’t authority) Tribal Federal State County Local

xxxx LEGAL/PROPRIETARY (Land ownership) “INDIAN COUNTRY” = Lands within reservation boundaries, and trust lands outside reservation

xxxxx Trust Lands Recognized exclusive for tribeRecognized exclusive for tribe Owned by U.S., “occupied” by IndiansOwned by U.S., “occupied” by Indians Communally held; no taxes on landCommunally held; no taxes on land Some trust lands outside reservationSome trust lands outside reservation –Casinos, Red Lake parcels

Fee-Simple Lands Non-Indian lands on reservation Private Indian lands (often allotments) Defined as “Open Areas” –Brendale case in Yakama Also tribal fee lands outside reservation –Can be used for bank collateral

Fee-to-Trust Process Tribe buys fee land in or out of reservation Applies to BIA to put land into trust Friction with county/local gov’ts losing tax base Payment In Lieu of Taxes (PILT) solutions

Fractionated Heirship As Native landowners die, land is divided among heirs Control of private Indian estates subdivided into tiny fractions on reservations with limited space Land becomes vulnerable to non-Indian acquisition Solution: Awareness, Wills to clear inheritance Indian Land Working Group

Reservation lands

Infringement Reserved rights based on tribal space Territory protects tribe State violation of Native geographical jurisdiction Very rarely upheld; generally only subject matter

White Earth Res., Minn. “Checkerboard” of tribal trust lands, tribal allotments, non-Indian public lands. non-Indian fee lands White Earth Land Settlement Act provided only limited returns

Local authority Reservation non-Indians have townships –Not on some res. (Menominee, Red Lake) Clashes common with tribal gov’t over construction, use permits, access roads, etc. Authority (zoning ) over non-Indian fee lands on reservation

Strawberry Island Burial Grounds Site of Ojibwe-Dakota battle on Lac du Flambeau Res. Signed over by child, 1911, but not developed Colorado man received township permit for condos, 1995 Oppose by county zoning board, tribal referendum Talks to buy site on-going.

Church lands on reservations Not as many local objections that churches don’t pay taxes Prairie Island, MN Mescalero Apache, NM

POLITICAL/ JURISDICTIONAL ( Governmental authority)

Tribal authority Regulate tribal members Tribal trust lands Indian-on-Indian minor crimes Civil jurisdiction (use it or lose it) –Zoning permits, family matters, tribal property Limit non-Indians rarely (only as Congress allows)

Federal authority Federal authority “Plenary power” absolute over tribes Major Indian-on-Indian crimes Allotment; and most sale of trust lands today Only Congress can terminate tribal sovereignty; until Congress acts, tribal powers persist. Constitutional power to regulate commerce and make treaties

Federal Pre-emption of State Feds have “subject matter jurisdiction” –Commerce, crime, health,housing, education, natural resources Regulations on Indian fee lands –Gaming, environmental, etc. Taxation –Indians pay federal income taxes, also state if work off-res. Federal “HUD Homes”

State authority Cannot infringe on the right of Indians to make their own laws and to be ruled by them. A state may have an interest in a situation/case (e.g., gaming, harvests). Where tribal self-government is evident, regulation by the state is unlikely. If not evident, state upheld. If tribes regulate their treaty rights and protect state conservation, state regulation is blocked.

State authority Tax non-Indian fee landsTax non-Indian fee lands Law enforcementLaw enforcement –In Public Law 280 states Non-Indian criminal jurisdictionNon-Indian criminal jurisdiction Any powers allowed by CongressAny powers allowed by Congress

Diminishment Reservation non-Indians assert that they are not represented by tribal gov’t Vote for their “Open Area” to secede from reservation Pine Ridge/Rosebud Uintah-Ouray, Utah 1986 decision on legal jurisdiction

Diminishment

Red Lake Ojibwe, MN

Anti-Sovereignty groups in Montana Flathead Residents Earning Equality (FREE), whites objecting to tribal rec permits, 1972 Montanans Opposing Discrimination (MOD) became All Citizens Equal (ACE) ACE associated with white supremacists, lost public support, but now with politicians

Nez Perce in Idaho Local & county gov’ts join in North Central Idaho Jurisdictional Alliance (NCIJA) Opposes Nez Perce trust lands (inside current reservation), legal authority, water rights One county works with tribe, worked out Payment In Lieu of Taxes

Oneida & Cayuga in New York Tribes claim original reservation, sue State NY Oneida gov’t also sued private landowners (rare) Upstate Citizens for Equality (UCE) opposes suit, expanded tribal authority, tribal gaming Mixed with intertribal, intratribal conflicts

Mille Lacs Ojibwe Res., Minn. Original treaty reservation of 61,000 acres, 1855 Reduced to 3,500 acres in allotment era Mille Lacs Band jurisdiction suit opposed by PERM, Mille Lacs Tea Party, county gov’t, banks Fear of what Band might do to non-Indians’ property, even oppose tribal/local water treatment plant District Court backed Band jurisdiction (would not affect non-Indians), 2003

National Anti-Sovereignty Movement Reservation whites, resource interests, others Groups part of Citizens Equal Rights Alliance (CERA) Losing on treaty rights, 1990s, switch to jurisdiction, idea of “One Nation” (name of Oklahoma group)

Membership & citizenship Social (blood) definition of place: Ethnic membership –Tribal “membership” selects tribal gov’t –Risk of diminishment by unrepresented non-Indians Territorial (soil) definition of place: Geographic citizenship –Reservation “citizenship” (limited represntation) for non-Indians? –Risks of non-Indians or New Agers taking over?

Tribal elections & reservation boundaries Tribal elections & reservation boundaries Tribal members in cities can vote Ethnic membership one way to bridge rural-urban divide Internal factions develop if power centralized Trees mark corner of Prairie Island Reservation boundary, Minn.

Many tribes have more than one reservation - Lakota, Ojibwe, etc. Some reservations have more than one tribe, but have only one tribal government - Umatilla, Colville, Fort Belknap U.S. played divide-and-conquer, pits tribes against each other as factions Ethnic groups and reservations

License plates License plates Social or territorial eligibility? State identified No state Vietnam vet plates

White Clay Village of 22 (15 businesses) in Nebraska, part of original (dry) Pine Ridge Rez., SD (I sq. mi.) 4 million cans beer ($3 million +) sold a year July 1999 confrontation over liquor sales, unsolved murders, tribal claim

Intertribal land issue Middle Village, Menominee Reservation in Shawano Co.

Navajo-Hopi jurisdictional dispute Partition of Joint Use Area Area includes Black Mesa coal field Navajo, Hopi Tribal gov’ts in conflict, 1960s

Navajo-Hopi jurisdictional dispute? Relocations of Big Mountain Navajo Sheep confiscations Moved to housing away from lands Navajo and Hopi Tribal gov’ts in forefront of conflict Traditionalists blame Peabody Coal for stoking conflict

Oklahoma Native lands Lots of Indians, but land taken for settlement, oil Now only tiny land around headquarters(exc. Osage)

Alaska Native lands Alaska Native Claims Settlement Act, 1971 Alaska Native lands held as village & regional corporations, not as sovereign reservations Receive more oil profits, have their own mining/timber operations

Resource profits Indian lands exploited for oil, minerals (Fixico) BIA put profits into trust, but “lost” the money (Cobell vs. Norton case) Ex-Navajo Chair MacDonald Formed Council of Energy Resource Tribes (CERT) to get profits for tribes CERT criticized by Native environmentalists

GAMING

Indian Gaming Regulatory Act (IGRA), 1988 Tribes could have same “class” of gaming as the state I. Social, II. Bingo/Cards, III. Casino ( = Lottery) Class III tribal authority limited; regulated by Commission Have to reach compacts with governors

xxxxx Transformations of successful tribes Ability to fund programs Influence in non-Indian border town Contracts, hiring, cultural events, welfare reduction Largest employer in county, Including non-Indians

Positives of Gaming Less pollution, economic pressure for industries Enables environmental legal work/lawsuits, technical/ research expertise. Funds public relations/lobbying. Finances land purchases.

Negatives of Gaming High initial debt to outsiders Social costs Uneven distribution among tribes Conflicts within tribes (but agree on sovereignty) Public perception of wealth; federal withdrawal of aid Some WI tribes closer to cities/tourists; competition led to 1997 White House scandal Some casinos outside reservations

State demands in compact talks Revenue sharing Fund for local services (if it reaches them) Restrictions on age, etc. Linkage to issues: Give up treaty rights, environmental regs (Thompson tried 1997) Tribes in some states (NV, MT, SD) Have to compete with non-Indian games

NATIVE SOVEREIGNTY IN THE AMERICAS

Some tribes, individuals did not accept the U.S. Citizenship Act or Canadian citizenship. Indigenous passports have been honored by some countries. “Trappings” of full sovereignty

Inuit (Eskimo) territory of Nunavut Canada 1999 Inuit fully control 18% of new territory; What will happen to Dené region of NWT?

Near-Secession of Quebec, 1995 Near-Secession of Quebec, 1995 Most French-speakers (blue) for independence from Canada English-speakers and immigrants voted “No” First nations against dams, etc. Cree & Inuit vote to stay Canada Cree Inuit English 50.6%49.4% Mohawk Innu Nunavik Eeyou Astchee Nitassinan

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Canadian Treaties 1,200 tiny reserves today

Greenland Eskimo (Inuit) territory of Denmark Achieved Home Rule as Kalaallit Nunaat, 1981 Separated from EU; minority favors independence Kalaallit Nunaat

Kuna Yala (Panama) Kuna Yala Kuna Indians along San Blas Islands coast Autonomy since 1920s Strengthened since 1989 U.S. invasion

Northern Atlantic Autonomous Region, Nicaragua Misikto, Sumu and Rama Indians War with Sandinista government, 1980s; won autonomy Conflicts with right-wing gov’ts, miners, 1990s R.A.A.N.