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.