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Legal, political actions continue to define tribal sovereignty
Friday, September 04 2015
 
Written by Lee Egerstrom,
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A series of legal actions and political events in August, stretching from Minnesota and South Dakota to Arizona and Washington State, keep defining and adding precedence to tribal sovereignty rights and their standing before the courts.

At the time of this writing, the city of Duluth was still contemplating what additional, if any, further legal action it might take in a long-running dispute with the Fond du Lac Band of Lake Superior Chippewa over the Band’s Fond-du-Luth Casino in downtown Duluth.

A U.S. District Court judge ruled in late July that the Band did not owe Duluth retroactive payments from a prior revenue sharing agreement that had been ruled illegal by the National Indian Gaming Commission. The key point of law involved the Indian Gaming Regulatory Act (IGRA) that requires tribes to be sole proprietors of their gaming operations, said Henry M. Buffalo, Jr., a Twin Cities-based attorney for the Band.

At the same time, he said, Fond-du-Luth Casino is within a one-mile portion of land in Duluth ceded by the Chippewa Tribe of Minnesota in the 1854 treaty with the federal government for which Fond du Lac and other bands were granted continuous access.

These disputes help define and clarify specific points of law even when they are part of a broader context and can have greater consequences, Buffalo said.

With such disputes literally at its doorstep, the University of Minnesota-Duluth announced on August 13 it is starting a Tribal Sovereignty Institute with it American Indian Studies department. The institute has been evolving from three years of consultations with the Minnesota Indian Affairs Council, the oldest such state council in the nation, and with the 11 federally recognized Indian communities.   

“Some of our faculty are already engaged in research partnerships, but having the Tribal Sovereignty Institute will facilitate more research that serves the needs of Native Nations,” Jill Doerfler, head of American Indian Studies, said in the UMD announcement.

The new institute will need to monitor evolving and unresolved issues from across the country. Thorny issues playing out in multiple states during August reveal specific challenges to law and public policy that fit like mosaic pieces in the broader sovereignty picture.

For instance: On Aug. 18, the Pennington County Commission in western South Dakota voted 3-2 to support, by not opposing, the transfer of three square miles of Pe’ Sla land into federal trust. This land is sacred within Lakota culture and has been gradually repurchased from private landowners by the Crow Creek, Rosebud and Standing Rock Sioux tribes in the Dakotas and by the Shakopee Mdewakanton Sioux Community in Minnesota.

Tribes across the entire country are engaged in efforts to buy back land ceded in treaties or sold to private owners over the past century or more. In this case, moving the Pe’ Sla to federal trust status for the Lakota tribes removes the land from local taxation, which is an issue with the federal trust status of Fond-du-Luth Casino in Duluth.

The U.S. Department of Justice joined as a co-plaintiff in a suit brought by the Tulalip Tribes against Washington State and Snohomish County challenging the state and county efforts to tax non-Indian businesses on Indian land. A federal judge was to hear arguments on Aug. 21, but the outcome of this legal battle could have impacts on how tribes pursue future economic development in various parts of Indian Country.

How sweeping or narrow a legal resolution might be is open for wide debate, said Francesca Hillery, the Tulalip public affairs officer. At issue is a new city, called Quil Ceda Village created and built by the Tulalip Tribes near a heavily traveled freeway convenient to Seattle. With Bureau of Indian Affairs and Internal Revenue Service approval, Quil Ceda Village on Indian trust land is a second “federally created city,” after Washington, D.C.

That appears to be the case, a prominent Indian affairs attorney in Washington, D.C., told The Circle in late August. But not wanting to be too specific without further research, the attorney said tribes should look at other properties on trust lands to see if revenue-producing ventures there may share similar status with Quil Ceda and the District of Columbia.
While Quil Ceda is unique in many respects, the issue coming before the federal courts may be pretty limited, the Tulalip’s Hillery said. And that involves taxing authority.

The Tulalip lawsuit argues that “Congress has provided by statute that lands held in trust by the United States for the benefit of an Indian tribe or its members are not subject to state and local taxation.” That view is backed up by substantial case law, and is also part of the Duluth litigation.

A landmark case on that matter involves the Upper Midwest. The U.S. Supreme Court in its 1976 Bryan v. Itasca County decision overturned a Minnesota State Supreme Court decision by noting that public law (P.L. 280) did not give states authority to “impose taxes on reservation Indians.”

hat case originated with Itasca County attempting to collect property taxes on a mobile home privately owned by an enrolled member of the White Earth Band of Ojibwe on the Leech Lake Reservation. It raised issues that differ from what the non-Indian retail enterprises are doing on Tulalip land and the issues involved with Fond-du-Luth Casino.    

Issues over what sovereign rights Indians have retained on ceded trust lands now privately owned, and on sacred ground sites, are still before the courts. More are headed that way. Among them are cases where tribes are fighting the location of pipelines for environmental reasons and over treaty rights to hunting, fishing and gathering (wild rice), as we see in Minnesota; and most vividly right now by the Navajo trying to protect sacred but private land in Arizona.

Legal issues in Arizona are still evolving but may involve protest activities rather than narrow points of law. A video in late August went viral showing Navajo opponents of a copper mind development chasing Sen. John McCain away from the Navajo Nation Museum at Window Rock, Ariz. Since McCain was the Republican presidential candidate in 2008, his prominence in the kerfuffle overshadowed the issues at stake outside the Southwest region.

Like the Pe’ Sla in South Dakota, considered sacred for its role in Lakota tribal creation, land to be developed as the world’s largest copper mine near Superior, Ariz., is considered sacred ground by Southwest tribes. Others fear environmental damage, especially to scarce water resources in the region. The Arizona Republic newspaper reported Capitol Hill police turned away members of the San Carlos Apache in July when they tried to protest at the office of Rep. Paul Gosar, R-Ariz.

These challenges, anchored in issues of tribal sovereignty, encircle tribes and cultures in the Upper Midwest no matter how far away problems arise. They make fertile ground for the Tribal Sovereignty Institute taking shape at UMD.
The Minnesota Indian Affairs Council acknowledged as much in a July resolution pledging its support and that of Minnesota’s 11 tribal communities to work with UMD on education curriculum and research development. That resolution noted UMD faculty now associated with the institute has worked with MIAC staff in providing training on related history and government relationships to more than 1,000 Minnesota state employees in recent years.

Tadd Johnson, UMD’s director of graduate studies for the American Indian Studies department, said in the announcement that Minnesota tribes will mandate direction of the institute. “Their ideas drive the research that we do,” he said.

 


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