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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.

 

White Earth members voice pipeline concerns
Friday, September 04 2015
 
Written by John Enger/MPRNews,
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white_earth_tribe_members_voice_pipeline_concerns_web.jpgWhite Earth doesn’t want another oil pipeline. Some 100 people turned out to a community center on the White Earth Indian Reservation on Aug. 18 for one of 11 public hearings across the state on a pipeline replacement project proposed by Enbridge Energy.

The Calgary-based energy company wants to re-route a 50-year-old oil pipeline known as Line 3 from its current path along Highway 2 to the proposed Sandpiper pipeline corridor, which will likely run near White Earth. The project requires a certificate of need from the Minnesota Public Utilities Commission.

The hearing at the Rice Lake Community Center was an early part of the state review, and a rare glimpse into the specific concerns held by tribe members.

Most, like White Earth member Leonard Thompson, are vehemently against the Sandpiper line, which was recently granted a certificate of need by the PUC, and don’t want another line pumping tar sand oil alongside it.
“Eventually something is going to go wrong with a pipeline,” Thomson said, “and then our land is ruined.”
Thompson grew up in a tar-paper shack a few miles from the where the hearing was held. As a child, he gathered wild rice and his father fished for bullheads to feed the family. Even a small leak from a pipeline, he said, could damage the natural resources that fed him.

Thompson was one of many to voice concerns over the possible impact of the new Line 3. Frank Bibeau was more concerned about the old Line 3.

Enbridge plans to replace 1,031 miles of the old line, across northern Minnesota from Canada to Superior, Wis. Along most of the route, that means ripping up deteriorating 34-inch pipe and laying new 36-inch pipe, capable of pumping twice the oil. But roughly 300 miles of that line, from Clearbrook, Minn., to the Wisconsin border, would deviate from the current Line 3 route and follow the proposed Sandpiper route. Along that section, Enbridge plans to leave the old Line 3 pipe in the ground.

“They’re just going to let it rot,” Bibeau said. “It’s guaranteed to be a problem at some point.”
Bibeau is an enrolled citizen of White Earth, but lives in Ball Club, Minn., east of Bemidji along the current Line 3. He hopes to get the old line torn out.

“Time is longer for Native people,” he said. “I don’t think in decades. I think in centuries. Eternity.”
Even if the abandoned line is safe for 50 or 100 years, he said, at some point it will break down.
Labor union representative Dave Becker also lobbied Enbridge to remove the old Line 3. Becker considers himself an environmentalist, one of a very few to speak out in favor of the new project.

The old line has problems, he said. It has had problems for a long time. Decommissioning that line and building a new one, he said, is the safest thing for the environment.

“If you care about clean water,” he said, “you should want newer pipelines.”

Hours of arguments for – but mostly against – the project, were made before a panel of PUC and Department of Commerce officials. Many of the arguments were complex, but for White Earth spiritual leader Michael Dahl, it’s a simple issue. For him, it comes down to wild rice.

“Rice is everything,” Dahl said. “It’s the first solid food our children eat, and the last meal of our dying elders.”
The proposed line would run close to Lower Rice Lake, a body of water that produces 200,000 pounds of finished wild rice every year. Just about everyone on White Earth rices that lake, Dahl said, knocking the grains into the bottom of canoes. They sell the rice and eat the rice. It figures into legends and ceremonies.

A spill, Dahl said, wouldn’t just dirty the landscape, it would bankrupt the spiritual and physical resources of the community.

Most people at the hearing didn’t hold out much hope of stopping the pipeline.

“Money talks,” Thompson said. “It’s coming through. The best we can hope for is to delay it.”

Bibeau, too, said the hearing might not change much. Dahl isn't so sure.

The Sandpiper route preferred by Enbridge doesn’t cross any Indian reservations, but would cut through a large area of lakes and forests in northern Minnesota where treaties give tribes the right to hunt, fish and gather. Dahl believes those treaties will protect the wild rice, and stop the pipeline.

“I wouldn’t take on a fight I didn’t think I could win,” he said.

Ojibwe Culture Celebrated at Ponemah Round House
Tuesday, August 04 2015
 
Written by Michael Meuers, Red Lake News,
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ojibwe culture celebrated at ponemah round house 1.jpgFor the third year in a row, the Red Lake Band hosted an Ojibwe Language and Cul­ture Camp for youth from July 21-23 in Ponemah, Minn.

The three-day Gabeshiwin (camp), hosted by Red Lake Chemical Health and Red Lake Eco­nomic Development and Planning, featured eat­ing traditional foods, lacrosse, moccasin game, plant gathering practices and identification, birch bark crafts, traditional Anishinaabe teachings and more. Gabeshiwin is a part of Red Lake Na­tion’s Ojibwemowin Revitalization efforts.

As elders pass away, the people of the Red Lake Nation are concerned that language and tradi­tion will disappear. To combat those fears, Red Lake officials are focused on language revitaliza­tion and related efforts to retain tribal culture. Much of indigenous culture depends on Native language, as many concepts cannot be translated to English.

The camp was held at the Round House in Ponemah, near the Point, home to more than half of the remaining fluent Ojibwemowin speakers in the United States.

At camp, children participated in Ojibwe sports and crafts, ate traditional foods and learned about traditional spiritual ceremonies and plant-gather­ing practices at Obaashiing, a village known for practicing traditional ways.

By far this was the most well-attended camp yet with 74 youth and 56 elders, staff and parents at­tending the first day. In 2013 only 30 children, 10 to 14 years-old, attended but that attendance nearly doubled in 2014. Each day started off with a hearty breakfast of traditional foods, which was served throughout the camp as part of the cur­riculum.

Tom Barrett, Sr., Director of Red Lake Chemi­cal Health Programs, and a major sponsor of Gabeshiwin (the camp) provided some background. “Our language was basically stripped from us a generation or two ago. The children were forbidden to talk their na­tive language.”

Barrett recalled how U.S. government authorities swept onto reservations and took Ojibwe children to boarding schools to assimilate to the white culture. The rip­ple effects of that action are still being felt by American Indians today.

“We feel if we can raise kids’ self esteem their chance of using chemicals will be less,’’ said elder and first speaker Murphy Thomas. “Self esteem is all tied up with knowing who you are and having a sense of pride in your heritage, language and cul­ture.”

Minnesota’s tribes face threat from currency markets
Tuesday, August 04 2015
 
Written by Lee Egerstrom,
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On the beautiful North Shore, citizens of the Grand Portage Band of Lake Superior Ojibwe often keep one eye looking out over the horizon of Lake Superior and another eye on traffic coming down the shore from Canada.

The U.S. dollar is rising against most of the world’s hard currencies and widening the exchange rate gap with the Canadian dollar as well. From past experience, any imbalance in the exchange rate of currencies can distort trade volume and direction of trade flow; it can certainly influence where people go for tourism and shopping.

Eight out of 10 cars, vans and coaches parked outside the Grand Portage Lodge and Casino most days have Canadian license plates. Other hospitality industry enterprises operated by Northern Minnesota, North Dakota, Montana and other border state tribes and bands are nearly as dependent on international trade as Grand Portage.

But Grand Portage may top them all, said former Minnesota Trade Office director P. Richard Bohr, recently retired from the College of St. Benedict and St. Johns University. He continues to monitor global markets while teaching in the master’s of international business (MIB) and the master’s of international development (MID) programs for St. Mary’s University graduate school in Minneapolis.

“It’s hard to image there is another Minnesota enterprise as dependent on international trade as them,” he said.

The State of Minnesota’s Indian Affairs Council notes that 80 percent of Grand Portage’s hospitality industry revenues come from Canadian visitors. The reservation at the tip of the Arrowhead Region is Cook County’s largest employer, with about 300 people holding jobs in its hospitality industry enterprises. Of them, the Council estimates 18 percent are international employees – First Nation Ojibwe from Thunder Bay – who cross the border each day from their homes in Ontario.

Dayton: Mille Lacs walleye woes require special session
Tuesday, August 04 2015
 
Written by Tim Pugmire, MPR News,
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DFL Gov. Mark Dayton is proposing a special legislative session in August to consider an emergency financial aid package for resorts and other businesses in the Lake Mille Lacs area. But House Speaker Kurt Daudt, R-Crown, says he thinks it may be too early to talk about bringing back the Legislature.

Dayton is concerned about the economic hit that the popular fishing destination will suffer if state officials close the walleye season early due to a dwindling fish population. He discussed the idea with Daudt and Senate Majority Leader Tom Bakk, DFL-Cook, on July 28, and they agreed to the following week to begin planning.

No decisions have been made, but Dayton told reporters on July 29 that the state assistance could include zero interest loans, property tax abatements and additional tourism promotion. He said “time is of the essence” to address a potentially “catastrophic” situation.

“We need to get the loan program under way,” Dayton said. “The resorts up there need working capital so they can pay their employees and just keep open, especially if the walleye fishing has to be closed beginning next week.”

Before a special session area legislators, lawmakers who oversee natural resource issues and state commissioners should meet to talk about the problem and ways to respond, Daudt told MPR News.

“We’re very concerned about the situation. We want to make sure we do what’s right by these resorts. We don’t want to see them suffering because of this closing of the season early,” Daudt said. “But we also want to make sure we’re doing the right thing. And we want to look at all options.”

Dayton met on July 29 in St. Paul with Mille Lacs area officials and business owners. He plans to visit the area later in the week.


Appeals court upholds DNR decision to deny permit to bear researcher
Tuesday, August 04 2015
 
Written by Dan Kraker, MPR News,
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A three-judge panel of the Minnesota Court of Appeals has upheld a state agency's decision to keep researcher Lynn Rogers from putting radio collars on black bears.

But Rogers is claiming partial victory, saying the ruling allows him to once again place cameras in bear dens to broadcast the hibernating animals over the Internet.

Two years ago, the state Department of Natural Resources declined to renew Rogers' research permit to feed bears in Eagles Nest Township to gain their trust so he could observe their behavior. DNR officials argued that his work threatened public safety by making the bears comfortable around humans and teaching them that people can be a source of food.

At issue before the appeals court was whether Rogers needed a DNR permit to place tracking collars on bears. Rogers first applied for a research permit in 1999, and the DNR granted him one.

In the court's ruling, Judge John Rodenberg concluded that "feeding a bear and habituating it in order to keep it in one place while a radio collar is affixed to it" amounts to legal "possession" of the bear, which under Minnesota law requires a permit.

DNR Communications Director Chris Niskanen said the agency is "very satisfied" with the court's decision. It "confirms the agency's belief that it's the responsible agency for permitting wildlife research, and managing wildlife populations," he said.

But Rogers also praised the ruling, which stated that he does not need a DNR permit to place cameras in bear dens while they are hibernating.

"I am just thrilled that the judges saw the value of the den cams, and gave me the right to broadcast them to the world again this winter," he said.

Rogers conceded that it would be more difficult to find active bear dens without the use of radio tracking collars. But he said he already knew the locations of many dens, which bears often reuse.


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