xxxxxxxxNATIVE SOVEREIGNTYNATIVE SOVEREIGNTY

Native GeographiesNative Geographies(Geography / AIS 322)(Geography / AIS 322)Prof. Zoltán Grossman

SovereigntySovereignty

1.1. Paramount; supremeParamount; supreme

2.2. Having supremeHaving supreme rank or powerrank or power

3. Self-governing3. Self-governing

((American Heritage DictionaryAmerican 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 SovereigntyWestern legal concept of Sovereignty

xxxxxxxxSovereignty Sovereignty

(on-reservation rights)(on-reservation rights)

• Political autonomy,Political autonomy,

not state/local controlnot 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”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” analogyMiner’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)Views of Native Land (Sutton)

• Ethnohistorical

(cultural view)

• Legal/proprietary

(land ownership)

• Political/jurisdictional

(gov’t authority)

EthnohistoricalEthnohistorical(Cultural view)(Cultural view)

Sacred sitesSacred sites

Aboriginal titleAboriginal title(if no treaty)(if no treaty)

Treaty landsTreaty lands

Land claimsLand claims

(See sacred sites(See sacred sitesand treaty lectures)and treaty lectures)

Legal/ProprietaryLegal/Proprietary(Land ownership)(Land ownership)

Trust landsTrust lands(reservation)(reservation)

Public landsPublic lands

Fee landsFee lands

Private allotmentsPrivate allotments

Political/Political/jurisdictionaljurisdictional((Gov’t authority)Gov’t authority)

TribalTribal

FederalFederal

StateState

CountyCounty

LocalLocal

xxxxxxxxLEGAL/PROPRIETARYLEGAL/PROPRIETARY

(Land ownership)(Land ownership)

““INDIAN COUNTRY” = INDIAN COUNTRY” =

Lands within reservation boundaries,Lands within reservation boundaries,and trust lands outside reservation and trust lands outside reservation

xxxxxxxxxxTrust LandsTrust 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 parcelsCasinos, Red Lake parcels

Fee-Simple LandsFee-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 ProcessFee-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 HeirshipFractionated 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 inheritanceIndian Land Working Group

www.ilwg.net

0 2000000 4000000 6000000 8000000 10000000 12000000 14000000 16000000 18000000

Alaska

Eastern US

E. Oklahoma

Great Plains

Midwest

Other Western

Navajo

Northwest

Pacific

Rockies

Southern Plains

Southwest

Tribal trust BIA owned Allotted

Reservation landsReservation landshttp://ilwg.net/reservations.htm

InfringementInfringement

• Reserved rights based

on tribal space

• Territory protects tribe

• State violation of Native geographical jurisdiction

• Very rarely upheld; generally only subject matter

White EarthWhite EarthRes., Minn. 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 authorityLocal 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 GroundsStrawberry 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 referendumTalks to buy

site on-going.

Church landsChurch landson reservationson reservations

Not as many localobjections that

churches don’t pay taxes

Prairie Island, MNPrairie Island, MN

Mescalero Apache, NMMescalero Apache, NM

POLITICAL/POLITICAL/JURISDICTIONAL JURISDICTIONAL

((Governmental authority)Governmental authority)

Tribal authorityTribal 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 authorityFederal 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 StateFederal 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 authorityState 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 authorityState authority

• Tax non-Indian fee lands Tax non-Indian fee lands

• Law enforcementLaw enforcement– In Public Law 280 statesIn Public Law 280 states

• Non-Indian criminal jurisdictionNon-Indian criminal jurisdiction

• Any powers allowed by Congress Any powers allowed by Congress

DiminishmentDiminishment

• 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

DiminishmentDiminishment

Red Lake Ojibwe, MNRed Lake Ojibwe, MN

Anti-Sovereignty groups in MontanaAnti-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 IdahoNez 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 YorkOneida & 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.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 opposetribal/local water treatment plant

District Court backed Band jurisdiction(would not affect non-Indians), 2003

National Anti-Sovereignty MovementNational 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)www.citizensalliance.org

Membership & citizenshipMembership & 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 ofPrairie 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 reservationsEthnic groups and reservations

License platesLicense plates

Social or territorial eligibility?

State identified

No state

Vietnam vet plates

White ClayWhite 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 Intertribal land issueland issue

Middle Village,Middle Village,Menominee Menominee

Reservation inReservation inShawano Co.Shawano Co.

Navajo-Hopi jurisdictional disputeNavajo-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?Navajo-Hopi jurisdictional dispute?• Relocations of Big Mountain Navajo • Sheep confiscations• Moved to housing away from lands

Navajo and HopiTribal gov’ts in forefront of conflict

Traditionalists blame Peabody Coal for stoking conflict

Oklahoma Native landsOklahoma Native lands• Lots of Indians, but land taken for settlement, oil

• Now only tiny land around headquarters(exc. Osage)

Alaska Native landsAlaska Native lands• Alaska Native Claims Settlement Act, 1971

Alaska NativeAlaska Nativelands held as village &lands held as village &regional corporations,regional corporations,not as sovereignnot as sovereignreservationsreservations

Receive more oilReceive more oilprofits, have theirprofits, have theirown mining/timber own mining/timber operationsoperations

Resource profitsResource profits Indian lands exploited for Indian lands exploited for

oil, minerals (Fixico) oil, minerals (Fixico)

BIA put profits into trust,BIA put profits into trust,but “lost” the moneybut “lost” the money((Cobell Cobell vsvs. Norton. Norton case) case)

Ex-Navajo Chair MacDonaldEx-Navajo Chair MacDonaldFormed Council of EnergyFormed Council of EnergyResource Tribes (CERT) toResource Tribes (CERT) toget profits for tribesget profits for tribes

CERT criticized by NativeCERT criticized by Nativeenvironmentalistsenvironmentalists

GAMINGGAMING

Indian Gaming Regulatory Act (IGRA), 1988Indian 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 withgovernors

xxxxxxxxxxTransformations of successful tribesTransformations of successful tribes

Ability to fund programsAbility to fund programs

Influence in non-Indian Influence in non-Indian border townborder town

Contracts, hiring, cultural Contracts, hiring, cultural events, welfare reductionevents, welfare reduction

Largest employer in county,Largest employer in county,Including non-IndiansIncluding non-Indians

Positives of GamingPositives 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 GamingNegatives 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 talksState demands in compact talksRevenue 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 NATIVE SOVEREIGNTY SOVEREIGNTY

IN THE AMERICASIN 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 sovereigntyTrappings” of full sovereignty

Inuit (Eskimo) territory of NunavutInuit (Eskimo) territory of Nunavut

Canada

1999

Inuit fully control 18% of new territory;Inuit fully control 18% of new territory;What will happen to Dené region of What will happen to Dené region of

NWT?NWT?

Near-Secession of Quebec, 1995Near-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

CreeCree

InuitInuit

EnglishEnglish

50.6%49.4%

MohawkMohawk

InnuInnu

Nunavik

EeyouAstchee

Nitassinan

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Canadian TreatiesCanadian Treaties1,200 tiny reserves today1,200 tiny reserves today

GreenlandGreenland

• 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 (Panama)

Kuna Yala

•Kuna Indians along San Blas Islands coast

•Autonomy since 1920s

•Strengthened since 1989 U.S. invasion

Northern Atlantic Autonomous Region, NicaraguaNorthern 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.