From the Editor's Desk: Tribal Sovereignty Through Federalism

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The concept

of tribal sovereignty for the uninitiated can seem like a confusing

and mercurial legal arena; and often times, it can be. What may work

for one tribe may not work for another. But even in the most

confusing cases, there are broad truths that can be taken into

account where sovereignty is concerned.

We see now

on Pine Ridge that an Oglala Sioux Tribal committee is referring a

public vote on the legalization of marijuana as a means to produce

revenue. Under federal law, which is directly applicable on Indian

reservations, the cultivation, distribution and/or sale of marijuana

is prohibited and goes directly under federal jurisdiction. For

better or worse, the Oglala have always had a history of acting

sovereignly, asking no one’s permission to do as they please within

their own territory. If passed, observing this act of sovereignty

come up against federal law will be fascinating, in addition to

considerations with the states of Colorado and Washington passing

their own legalization laws.

At the

Minnesota American Indian Chamber of Commerce Annual Dinner in

November, Mille Lacs Band of Ojibwe Chief Executive Melanie Benjamin

brought to light, once more, the curious case of her band’s struggle

for recognition by the state of Minnesota. At the dinner, Benjamin

explained that since a court case involving the band’s lake

boundaries, the state of Minnesota has refused to acknowledge the

existence of the reservation, though it exists as a political entity

where federal recognition stands.

In South

Dakota, the Rosebud Sioux Tribe was forced to cede tribal lands to

the state when it lost a court case in the 1970s, challenging state

jurisdiction. Those lands are now a part of the proposed Keystone XL

pipeline that will transport millions of gallons of tar sands oil

from Canada to the Gulf of Mexico, an environmental and judicial

crisis waiting to happen.

Then in

December, the Environmental Protection Agency – however

unintentionally – shook up the argument for tribal sovereignty with

its decision to place the city of Riverton, Wyoming back within the

tribal jurisdiction of the Wind River reservation, home to the

Eastern Shoshone and Northern Arapahoe Tribes.

The impetus for

the EPA’s decision was whether tribes had similar standing to states

in their rights to monitor air quality through the Clean Air Act. The

part of the ruling that caught everyone off guard was that in its

decision, the agency said the two tribes had this right within 50

miles of their boundaries, which just happened to include the city of

Riverton.

Almost

immediately, Matt Mead – the Republican governor of Wyoming –

took to Twitter and the press, saying that they state would not abide

by the agency’s decision, effectively attacking the relationship

between tribes and the federal government. In a statement, he said,

This

decision goes against 100 years of history, involving over a million

acres of land. It is not a decision that should come from a

regulatory agency,” Mead said. “I believe the EPA is in the wrong

and I will not honor its decision.”

He

went one step further and instructed the state’s attorney general,

Gregory A. Phillips, to “to take aggressive action to prevent the

EPA’s decision from adversely affecting our state.” And that

aggressive action was taken.

The

Wyoming Attorney General’s Web site features its petition to the EPA

on the home page. It is filled with affidavits from state officials

who stop just short of race-baiting in their assessments of why

tribal jurisdiction would be next to lawlessness and anarchy.

Among

them are Guy Cameron, Director of Wyoming Office of Homeland

Security, who theorizes that under tribal jurisdiction, the Riverton

area would be in a legal quagmire. Kevin D. Bohnenblust, from the

Wyoming Board of Medicine, effectively says that health care for

those in the area who do not use the Indian Health Service would be

dubious.

And

then, there is the executive director of the state parole board,

Patrick M. Anderson, who writes of the reservation, “Historically,

tribal authorities have prevented the execution of warrants issued by

the Board in Indian Country, effectively turning the reservation into

a sanctuary for parole violators. As the EPA’s determination of the

boundaries of the reservation greatly increases its size, this

difficulty can be expected in a much greater area.”

He

upped the ante by making a veiled threat to those who have served

their time. “The Board will also have to reevaluate the appropriate

terms and conditions of parole for individuals paroled in the

expanded area of Indian Country given the historical difficulties

with supervision and enforcement of grants of parole in the area.”

While it

is tempting to look at all these examples and question why tribes

should continue the fight to assert their sovereignty, this is a

lesson to those who can observe, dispassionately and learn from the

unfolding events in Wyoming and Washington, D.C. to apply in their

own struggles for tribal sovereignty. It is apparent that while

opponents and detractors abound, tribes still have allies in the

least likely places.

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