sovereignty conflicts - Academic Program Pages at Evergreen

Native Geographies
(Geography / AIS 322)
Prof. Zoltán Grossman
1. Paramount; supreme
2. Having supreme
rank or power
3. Self-governing
(American Heritage Dictionary)
Western legal concept of Sovereignty
To avoid instability, power is vested in a
strong central authority.
There can be no State without a Sovereign
Sovereign is subject to God and
agreements with other sovereigns
xxxx rights)
• Political autonomy,
not state/local control
• “Domestic dependent nation”
• Tribal members citizens of
U.S., tribe, and state
“Trust Responsibility”
• Direct relationship between federal & tribal gov’ts
• Tribal land put “in trust” to become reservation
• Protects reservation from state & local gov’ts
• Puts tribe as “ward” at mercy of federal “guardian”
“Miner’s Canary” analogy
By Felix Cohen, 1953
(Modern founder of federal Indian law)
“The Indian plays much the same role in our American
society that the Jews played in Germany. Like the
miner's canary, the Indian marks the shift from fresh air
to poison gas in our political atmosphere; and our treatment
of Indians, even more than our treatment of other minorities,
marks the rise and fall of our democratic faith.”
Views of Native Land (Sutton)
• Ethnohistorical
(cultural view)
• Legal/proprietary
(land ownership)
• Political/jurisdictional
(gov’t authority)
(Cultural view)
Sacred sites
Aboriginal title
(if no treaty)
Treaty lands
Land claims
(See sacred sites
and treaty lectures)
(Land ownership)
Trust lands
Public lands
Fee lands
Private allotments
(Gov’t authority)
(Land xxxx
Lands within reservation boundaries,
and trust lands outside reservation
• Recognized exclusive for tribe
• Owned by U.S., “occupied” by Indians
• Communally held; no taxes on land
• Some trust lands outside reservation
– Casinos, Red Lake parcels
Fee-Simple Lands
• Non-Indian lands on reservation
• Private Indian lands (often allotments)
• Defined as “Open Areas”
– Brendale case in Yakama
• Also tribal fee lands outside reservation
– Can be used for bank collateral
Fee-to-Trust Process
• Tribe buys fee land in or out of reservation
• Applies to BIA to put land into trust
• Friction with county/local gov’ts losing tax base
• Payment In Lieu of Taxes (PILT) solutions
Fractionated Heirship •
As Native landowners die,
land is divided among heirs
• Control of private Indian
estates subdivided into
tiny fractions on reservations
with limited space
• Land becomes vulnerable
to non-Indian acquisition
Indian Land Working Group
• Solution: Awareness,
Wills to clear inheritance
Reservation lands
Tribal trus t
BIA owned
S outhwe st
S outhe rn Plains
Rock ies
Northwe st
O ther Western
Great Plains
E. Ok lahoma
Eastern US
Alask a
2 00 00 00
4 00 00 00
6 00 00 00
8 00 00 00
1 00 00 00 0 1 20 00 00 0 1 40 00 00 0 1 60 00 00 0 1 80 00 00 0
• Reserved rights based
on tribal space
• Territory protects tribe
• State violation of Native geographical jurisdiction
• Very rarely upheld; generally only subject matter
White Earth
Res., Minn.
“Checkerboard” of
tribal trust lands,
tribal allotments,
non-Indian public lands.
non-Indian fee lands
White Earth Land
Settlement Act provided
only limited returns
Local authority
• Reservation non-Indians have townships
– Not on some res. (Menominee, Red Lake)
• Clashes common with tribal gov’t over
construction, use permits, access roads, etc.
• Authority (zoning ) over non-Indian fee lands
on reservation
Strawberry Island Burial Grounds
Site of Ojibwe-Dakota battle on Lac du Flambeau Res.
Signed over by child, 1911, but not developed
Colorado man received township permit for condos, 1995
Oppose by county zoning board, tribal referendum
Talks to buy
site on-going.
Mescalero Apache, NM
Church lands
on reservations
Prairie Island, MN
Not as many local
objections that
churches don’t pay taxes
(Governmental authority)
Tribal authority
• Regulate tribal members
• Tribal trust lands
• Indian-on-Indian minor crimes
• Civil jurisdiction (use it or lose it)
– Zoning permits, family matters, tribal property
• Limit non-Indians rarely (only as Congress allows)
Federal authority
Constitutional power to regulate
commerce and make treaties
“Plenary power” absolute over tribes
Major Indian-on-Indian crimes
Allotment; and most sale of trust lands today
Only Congress can terminate tribal sovereignty;
until Congress acts, tribal powers persist.
Federal Pre-emption of State
• Feds have “subject matter jurisdiction”
– Commerce, crime, health,housing, education, natural resources
• Regulations on Indian fee lands
– Gaming, environmental, etc.
• Taxation
– Indians pay federal income taxes,
also state if work off-res.
Federal “HUD Homes”
State authority
Cannot infringe on the right of Indians to make their
own laws and to be ruled by them.
A state may have an interest in a situation/case (e.g.,
gaming, harvests).
Where tribal self-government is evident, regulation by
the state is unlikely. If not evident, state upheld.
If tribes regulate their treaty rights and protect state
conservation, state regulation is blocked.
State authority
• Tax non-Indian fee lands
• Law enforcement
– In Public Law 280 states
• Non-Indian criminal jurisdiction
• Any powers allowed by Congress
• Reservation non-Indians assert that they are
not represented by tribal gov’t
• Vote for their “Open Area” to secede from reservation
• Pine Ridge/Rosebud
• Uintah-Ouray, Utah
1986 decision on
legal jurisdiction
Red Lake Ojibwe, MN
Anti-Sovereignty groups in Montana
• Flathead Residents Earning Equality (FREE),
whites objecting to tribal rec permits, 1972
• Montanans Opposing Discrimination (MOD) became
All Citizens Equal (ACE)
• ACE associated with white supremacists,
lost public support , but now with politicians
Nez Perce in Idaho
• Local & county gov’ts join in
North Central Idaho Jurisdictional Alliance (NCIJA)
• Opposes Nez Perce trust lands (inside current
reservation), legal authority, water rights
• One county works with tribe,
worked out Payment In Lieu of Taxes
Oneida & Cayuga in New York
• Tribes claim original reservation, sue State
• NY Oneida gov’t also sued private landowners (rare)
• Upstate Citizens for Equality (UCE) opposes suit,
expanded tribal authority, tribal gaming
• Mixed with intertribal, intratribal conflicts
Mille Lacs Ojibwe Res., Minn.
• Original treaty reservation of 61,000 acres, 1855
• Reduced to 3,500 acres in allotment era
• Mille Lacs Band jurisdiction suit opposed by
PERM, Mille Lacs Tea Party, county gov’t, banks
Fear of what Band might do to
non-Indians’ property, even oppose
tribal/local water treatment plant
District Court backed Band jurisdiction
(would not affect non-Indians), 2003
National Anti-Sovereignty Movement
• Reservation whites, resource interests, others
• Groups part of Citizens Equal Rights Alliance (CERA)
• Losing on treaty rights, 1990s, switch to jurisdiction,
idea of “One Nation” (name of Oklahoma group)
Membership & citizenship
• Social (blood) definition of place:
Ethnic membership
– Tribal “membership” selects tribal gov’t
– Risk of diminishment by unrepresented non-Indians
• Territorial (soil) definition of place:
Geographic citizenship
– Reservation “citizenship”
(limited represntation) for non-Indians?
– Risks of non-Indians or New Agers taking over?
Tribal elections & reservation boundaries
Tribal members in cities can vote
Ethnic membership one way to bridge rural-urban divide
Internal factions develop if power centralized
Trees mark corner of
Prairie Island Reservation
boundary, Minn.
Ethnic groups and reservations
Many tribes have more than one reservation
- Lakota, Ojibwe, etc.
Some reservations have more than one tribe,
but have only one tribal government
- Umatilla, Colville, Fort Belknap
U.S. played divide-and-conquer,
pits tribes against each
other as factions
License plates
Vietnam vet plates
Social or territorial eligibility?
State identified
No state
White Clay
• Village of 22 (15 businesses) in Nebraska, part of
original (dry) Pine Ridge Rez., SD (I sq. mi.)
• 4 million cans beer ($3 million +) sold a year
• July 1999 confrontation over liquor sales,
unsolved murders, tribal claim
land issue
Middle Village,
Reservation in
Shawano Co.
Navajo-Hopi jurisdictional dispute
• Partition of Joint
Use Area
• Area includes
Black Mesa
coal field
• Navajo, Hopi
Tribal gov’ts in
conflict, 1960s
Navajo-Hopi jurisdictional dispute?
• Relocations of Big Mountain Navajo
• Sheep confiscations
• Moved to housing away from lands
Navajo and Hopi
Tribal gov’ts in
forefront of conflict
blame Peabody
Coal for stoking
Oklahoma Native lands
• Lots of Indians, but land taken for settlement, oil
• Now only tiny land around headquarters(exc. Osage)
Alaska Native lands
• Alaska Native Claims Settlement Act, 1971
Alaska Native
lands held as village &
regional corporations,
not as sovereign
Receive more oil
profits, have their
own mining/timber
Resource profits
Indian lands exploited for
oil, minerals (Fixico)
BIA put profits into trust,
but “lost” the money
(Cobell vs. Norton case)
Ex-Navajo Chair MacDonald
Formed Council of Energy
Resource Tribes (CERT) to
get profits for tribes
CERT criticized by Native
Indian Gaming Regulatory Act (IGRA), 1988
Tribes could have same “class” of gaming as the state
I. Social, II. Bingo/Cards, III. Casino ( = Lottery)
Class III tribal
authority limited;
regulated by
Have to reach
compacts with
of successful tribes
Ability to fund programs
Influence in non-Indian
border town
Contracts, hiring, cultural
events, welfare reduction
Largest employer in county,
Including non-Indians
Positives of Gaming
• Less pollution, economic
pressure for industries
• Enables environmental legal
work/lawsuits, technical/
research expertise.
• Funds public
• Finances land purchases.
Negatives of Gaming
• High initial debt to outsiders
• Social costs
• Uneven distribution among tribes
Some WI tribes closer
to cities/tourists;
competition led to 1997
White House scandal
Some casinos outside
• Conflicts within tribes
(but agree on sovereignty)
• Public perception of wealth;
federal withdrawal of aid
State demands in compact talks
Revenue sharing
Fund for local services
(if it reaches them)
Restrictions on age, etc.
Linkage to issues:
Give up treaty rights,
environmental regs
Tribes in some states (NV, MT, SD)
Have to compete with non-Indian games (Thompson tried 1997)
“Trappings” of full sovereignty
Some tribes, individuals
did not accept the U.S.
Citizenship Act or
Canadian citizenship.
Indigenous passports
have been honored
by some countries.
Inuit (Eskimo) territory of Nunavut
Inuit fully control 18% of new territory;
What will happen to Dené region of NWT?
Near-Secession of Quebec, 1995
Most French-speakers (blue)
for independence from Canada
English-speakers and
immigrants voted “No”
First nations against dams, etc.
Cree & Inuit vote to stay Canada
Canadian Treaties
1,200 tiny reserves today
Kalaallit Nunaat
• Eskimo (Inuit)
territory of Denmark
• Achieved Home Rule
as Kalaallit Nunaat, 1981
• Separated from EU;
minority favors independence
Kuna Yala (Panama)
•Kuna Indians along San Blas Islands coast
•Autonomy since 1920s
•Strengthened since 1989 U.S. invasion
Kuna Yala
Northern Atlantic Autonomous Region, Nicaragua
• Misikto, Sumu and
Rama Indians
• War with Sandinista
government, 1980s;
won autonomy
• Conflicts with right-wing
gov’ts, miners, 1990s