From the Editor's Desk: Tribal Sovereignty Through Federalism
Friday, February 07 2014
Written by Alfred Walking Bull, The Circle Managing Editor,
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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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