Tribal sovereignty

[chiggerbit]

sw had a question about the use of tribal land, and I thought it deserved a thread of its own, especially since the White House today, coincindentally, announced that "Obama will hold a Tribal Nations Conference on November 5, with the 564 federally recognized Native American tribes." Cool, what great timing.


http://tpmlivewire.talkingpointsmemo.co ... hp?ref=fpa

The White House announced today that President Obama will hold a Tribal Nations Conference on November 5, with the 564 federally recognized Native American tribes.

"I look forward to hearing directly from the leaders in Indian Country about what my Administration can do to not only meet their needs, but help improve their lives and the lives of their peoples," Obama said in a statement. "This conference will serve as part of the ongoing and important consultation process that I value, and further strengthen the Nation-to-Nation relationship."

The White House said each of the 564 tribes will be invited to send one representative to the November conference, to meet with the President and administration members. Obama first mentioned the conference in June, in an address to the 2009 National Congress of American Indians Mid-Year Conference.

[chiggerbit]

Well, that, and the issue interests me.

[chiggerbit]

I know that a lot of people look down their noses at wiki, but I find it a grea time-saver.

http://en.wikipedia.org/wiki/Tribal_sov ... ted_States

Tribal sovereignty in the United States
From Wikipedia, the free encyclopedia

Tribal sovereignty map of the United States, with non-reservation land highlighted.

Tribal sovereignty refers to the inherent authority of indigenous tribes to govern themselves. At the foundation of the constitutional status of tribes is the idea that tribes have an inherent right to govern themselves—the power is not delegated by congressional acts. Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it.[1] Current federal policy in the United States recognizes this sovereignty and stresses the government-to-government relations between Washington, D.C. and the American Indian tribes.[2] However, most Indian land is held in trust by the United States,[3] and federal law still regulates the political and economic rights of tribal governments. Tribal jurisdiction over persons and things within tribal borders are often at issue. While tribal criminal jurisdiction over Indians is reasonably well settled, Tribes are still striving to achieve criminal jurisdiction over non-Indian persons who commit crimes in Indian Country. This is mostly due to the Supreme Court's ruling in 1978 in Oliphant v. Suquamish Indian Tribe that tribes lack the inherent authority to arrest, try and convict non-Indians who commit crimes on their lands (see below for additional discussion on this point.) The Oliphant decision remains controversial[who?]in Indian Country.Contents [hide]
1 Empowerment of tribal courts
2 Defining jurisdiction
3 Tribal governments today
4 Notes
5 See also
6 References
7 External links

[edit]
Empowerment of tribal courts

On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses." The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible." Another five years later, Congress began providing funds to operate the Indian courts.

While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, it was almost another century before United States courts determined what powers remained vested in the original nations of the continent now occupied by the US.

From the mid-19th Century, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water, and treaty rights of the tribal nations. In 1934 the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.

In 1956, a U.S. Court concluded no law had ever established tribal courts, but nonetheless, decades of federal funding implied that they were legitimate courts.

The Federal government recognizes tribal soveringty only under the terms of "domestic dependent nations" and the United States government does not fully recognize tribal rights to full tribal sovereignty as implied through US treaties and the Constitution, therefore subordinating the status of tribal governments as less than or "dependent" on the government or the powers of US government, establishing a power relation that positions tribes, and communities, less than rights guaranteed through treaties and the establishment of the US Constitution.
[edit]
Defining jurisdiction

Though Congress on June 2, 1924, extended national citizenship to include members of enrolled tribes, the court concluded two Oglala Sioux defendants convicted of adultery under tribal laws did not enjoy legal protection afforded to other citizens by the United States Constitution. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of one sui juris (not under the power of another), the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial ..." (U.S. v. Nice, 1916). The court further determined, based on the earlier Lone Wolf v. Hitchcock case, that, "It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld.

In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.

In 1965 the United States Court of Appeals for the Ninth Circuit concluded that no law had ever extended provisions of the U.S. Constitution, including the right of habeas corpus, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, "it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts."

While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. When an Indian nation files suit against a state in U.S. court, they do so with the approval of the Bureau of Indian Affairs. In the modern legal era, courts and congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law.

In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court, in a 6-2 opinion authored by Justice William Rehnquist concluded that tribal courts do not have jurisdiction over non-Indians (the Chief Justice of the Supreme Court at that time, Warren Burger, and Justice Thurgood Marshall filed a dissenting opinion). But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians.

A 1981 case, Montana v U.S., clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation.

Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under Washington v. Confederated Tribes of Colville Indian Reservation, (1980). Tribes are sovereign over tribal members and tribal land, under United States v. Mazurie (1975).

In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands…. Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Congress passed the 'Duro Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The Duro Fix was upheld by the Supreme Court in U.S. v. Lara [2004].
[edit]
Tribal governments today

At the dawn of the 21st Century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over nonmember Indians regarding crime on tribal land. The Indian Civil Rights Act, however, limits tribal punishment to one year in jail and a $5,000 fine. Tribal Courts have no criminal jurisdiction over non-Indians. In PL280 states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin), the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. In non-PL280 states, Indian on Indian crime in Indian Country may be prosecuted in Federal Court if the crime is one of those listed in the Major Crimes Act (§1153). Indian on non-Indian crime in Indian Country will be prosecuted in Federal Court, either from the MCA, or the Indian Country Crimes Act (§1152) (unless the Indian was punished by the tribe). Non-Indian on Indian crime in Indian Country will be prosecuted in Federal court using ICCA. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.

While tribal nations do not enjoy direct access to U.S. courts to bring cases against states, as sovereigns they do enjoy immunity against many lawsuits(Santa Clara Pueblo v. Martinez, 1978), unless a plaintiff is granted a waiver by the tribe or by congressional abrogation (Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 1978). The sovereignty extends to tribal enterprises (Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enterprises 1984), and tribal casinos or gaming commissions (Barker v. Menominee Nation Casino, 1995). The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings (Santa Clara Pueblo v. Martinez, 1978).

Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the Secretarial Review of the Department of Interior through the Bureau of Indian Affairs.

[chiggerbit]

http://en.wikipedia.org/wiki/Indian_Territory

Indian Territory
From Wikipedia, the free encyclopedia
This article is about the historical territory in the United States of America; for other uses of similar terms, see Indian Country (disambiguation).
Not to be confused with Indiana Territory

Oklahoma and Indian Territory, 1890s

The Indian Territory, also known as the Indian Territories and the Indian Country, was land set aside within the United States for the use of Native Americans. The general borders were set by the Indian Intercourse Act of 1834.

The Indian Territory had its roots in the British Royal Proclamation of 1763, which limited white settlement to Crown lands east of the Appalachian Mountains. Indian Territory was reduced under British administration and again after the American Revolution, until it included only lands west of the Mississippi River.

At the time of the American Revolution, many Native American tribes had long-standing relationships with the British, but a less developed relationship with the American rebels. After the defeat of the British, the Americans twice invaded the Ohio Country and were twice defeated. They finally defeated a Native American confederacy at the Battle of Fallen Timbers in 1794, imposing the unfavorable Treaty of Greenville, which ceded most of what is now Ohio, part of what is now Indiana, and the present day sites of Chicago and Detroit to the United States.

The Indian Territory served as the destination for the policy of Indian Removal, a policy pursued intermittently by American presidents early in the nineteenth century, but aggressively pursued by President Andrew Jackson after the passage of the Indian Removal Act of 1830. The Five Civilized Tribes in the South were the most prominent tribes displaced by the policy, a relocation that came to be known as the Trail of Tears during the Choctaw removals starting in 1831. The trail ended in what is now Arkansas and Oklahoma, where there were already many Native Americans living in the territory, as well as whites and escaped slaves. Other tribes, such as the Delaware, Cheyenne, and Apache were also forced to relocate to the Indian territory.

Indian Territory in 1891

The Five Civilized Tribes set up towns such as Tulsa, Ardmore, Tahlequah, Tishomingo, Muskogee, and others, which often became some of the larger towns in the state. They also brought their African slaves to Oklahoma, which added to the African-American population in the state. Members of these tribes fought primarily on the side of the Confederacy during the American Civil War in Indian territory. Following the Battle of Doaksville, Brigadier General Stand Watie, a Confederate commander of the Cherokee nation, became the last Confederate general to surrender in the American Civil War on 23 June 1865.

In time, the Indian Territory was gradually reduced to what is now Oklahoma; then, with the organization of Oklahoma Territory in 1890, to just the eastern half of the area. The citizens of Indian Territory tried, in 1905, to gain admission to the union as the State of Sequoyah, but were rebuffed by Congress and an Administration who did not want two new Western states, Sequoyah and Oklahoma. Citizens then joined to seek admission of a single state to the Union. With Oklahoma statehood in November 1907, Indian Territory was extinguished.

Many Native Americans continue to live in Oklahoma, especially in the eastern part.

[chiggerbit]

At the time of the American Revolution, many Native American tribes had long-standing relationships with the British, but a less developed relationship with the American rebels. After the defeat of the British, the Americans twice invaded the Ohio Country and were twice defeated. They finally defeated a Native American confederacy at the Battle of Fallen Timbers in 1794, imposing the unfavorable Treaty of Greenville, which ceded most of what is now Ohio, part of what is now Indiana, and the present day sites of Chicago and Detroit to the United States.

In following my nose on topics related--and not so related-- to my genealogy, I have become convinced that it was the British restrictions preventing colonists from invading Indian territories as much as "no taxation without representation" that lead to the Revolution. George Washinton was little more than a prospective land developer.

[Joe Hillshoist]

At the time of the American Revolution, many Native American tribes had long-standing relationships with the British, but a less developed relationship with the American rebels. After the defeat of the British, the Americans twice invaded the Ohio Country and were twice defeated. They finally defeated a Native American confederacy at the Battle of Fallen Timbers in 1794, imposing the unfavorable Treaty of Greenville, which ceded most of what is now Ohio, part of what is now Indiana, and the present day sites of Chicago and Detroit to the United States.

In following my nose on topics related--and not so related-- to my genealogy, I have become convinced that it was the British restrictions preventing colonists from invading Indian territories as much as "no taxation without representation" that lead to the Revolution. George Washinton was little more than a prospective land developer.

I often wonder that, although its at odds with other British policies.

On the surface at least.

There is some evidence to suggest the crown was against the theft of indigenous land and the imposition of british sovreignty on Indigenous Australians at some times during the first 100 years of colonisation here. There are some letters that refer to it. I'llk see if I can find em.

[chiggerbit]

Damn, I wish I had saved notes on what lead me to think this, so we could compare them Joe. Not sure if I can reconstruct the line I was following or not. It's not that something I read said "this is what caused the Revolution ", but was an opinion I had arrived at based on a number of readings. But, for sure, Washington was an ambitious land speculator. I'll do a little digging.

[exojuridik]

This is a an excerpt from Joe Bageant's article Drink, Pray, Fight, Fuck that explores the Scot-Celt role in opening the "Indian Frontier" for the preda . . .er . . civilizing efforts of our founding-fathers.

GWashington turns out to have been a shrewd businessman as well as a military conquisdator and President. Sorta like a proto-GWBush

Anyway, Bageant's a great writer . . .

http://www.joebageant.com/joe/2005/01/d ... _figh.html

Looking back, it is hard to believe such a motley swarm of border Celts as arrived in America could accomplish all that. They certainly appeared unlikely candidates when they began migrating here during the first 75 years of the 18th century. So unsavory were their habits that even fellow Calvinists, the New England Puritans, did not much accept them. The East Anglican followers of Cotton Mather's brand of Calvinism were less than enamored with the Borderer practice of drinking in church and their low hygienic standards. Eventually the Borderers found themselves once more (where else?) on another border. This time it was the border of civilization, the frontiers of British North American holdings in Pennsylvania. True to form, they were exactly where they were not supposed to be -- tilling soil and killing Indians west of the Allegheny Mountains against King George II's prohibition.

In the long run however, these unwashed, hard-fighting fanatics turned out to be useful to the aristocracy in developing their vast land grants in the colonies. For example, from the 1730s onward, the Virginia elite sought to populate the Blue Ridge Mountains as a barrier between the Indians and their lowland slave plantations, and make fortunes selling the Blue Ridge and the Shenandoah Valley to those willing to settle there. Thus, elites such as Thomas Lord Fairfax, the Byrd and the Beverly families brought in Borderers, along with sturdy Pennsylvania Germans. The Borderers were more than willing to keep the Indians, and later the French, killed back to some appropriate line along the Alleghenies and Virginia's leading families indeed made fortunes that stand today from the land sales, particularly from the Germans. The Borderers often squatted on almost as much as they purchased or shot at rent collectors. But so long as Borderers could pour powder and buy rum, their villages and cabinsteads were considered a reasonable success. Sort of. The young officer George Washington, while building Winchester's French and Indian War frontier defenses at Fort Loudoun, called our town one of the most ignorant, mean spirited and predatory places in all the colonies, a tradition we have thus far managed to maintain. That did not keep Washington from marching said uncouth souls --my ancestors among them -- into the Alleghenies to "take a pull" as an early account puts it, at the menacing French and the murderous feathered heathen. Not too many years later, when the elitist, land speculating Washington entered politics, he had barrels of rum rolled out on our main street and the same mean spirited Winchesterians elected him to his first public office, the Virginia House of Burgesses. Which goes to show that no political idea or personage is so unpalatable to us it cannot be washed down with a drink, or otherwise made acceptable through God rhetoric or patriotic bloody shirt waving. It still works. Repeated showings of Twin Towers footage and beheadings via streaming Internet are the kind of bloody shirt an America steeped in Borderer culture can grasp. To hell with explanations about oil and global resentment of U.S. imperialism.

[chiggerbit]

I don't know, maybe England's reluctance to let the colonials invade beyond colonial territories had as much to do with the French as it did with Indian territory. Prior to the Revolution, the American (English) colonials had been involved with the English as a part of England's larger conflict with France, starting in the late 1600's. Prior to these wars, some of the Indian tribes had made war on the colonial settlers in the early days of settlement on their own, such as in King Philip's War (King Philip was an Indian chief, Metacom) on the Pilgrims. But at the end of the 1600's, England and France were at each other's throats, and each country tried to manipulate the various tribes in America to join with them in making war on the other, so some tribes joined the English and some the French. It was a very bloody war.

England controlled what are today's US states along the East Coast down to but not including Florida, while France controlled the Mississippi River and Ohio River basins and the area of the Great Lakes, from Louisiana up into Eastern Canada, reaching eastward up pretty close to the back side of the colonies. Technically, what we here in the US call the French and Indian War ran from 1754 to 1763. but really we tend to look at the conflicts that started at the end of the 1600's, variously called King William's War, Dummer's War, King George's War and Queen Anne's War, all as a part of the French and Indian War. England would barely win the war with France and take control of Canada before the colonials started making war on England in 1775, a revolution which lasted until 1783.

Anyway, it was at the beginning of the "technical" French and Indian War, about 20 years or so before the American Revolution began, that George Washington, who was born in 1732, came into the empire's picture as a very young man. This should flesh out for you who Washington was. (For a very interesting read, go to the link for the entire article.)

http://memory.loc.gov/ammem/gmdhtml/gwmaps.html

"...Washington As Land Speculator: (Top)
Western Lands and the Bounty of War

Washington's lifelong interest in land speculation is illustrated in the fight over bounty lands promised to the veterans of the Virginia Regiment who fought with him in the French and Indian War. In this episode Washington acted on behalf of his fellow veterans as well as vigorously, sometimes aggressively, in staking out his own land claims.

In 1754, Lieutenant Governor Dinwiddie issued a proclamation designed to encourage enlistment in the local militia for the war against the French. In addition to their pay, those who enlisted in Lieutenant Colonel George Washington's fledgling Virginia Regiment were offered a share in two hundred thousand acres west of the Ohio River. Unfortunately for the men who fought under Washington in the Braddock and Forbes expeditions against the enemy at Fort Duquesne, they were not to see these bounty lands until more than twenty years had passed, during which time Washington led the struggle to secure their title.

At first, the formal conclusion in 1763 of the worldwide war between Britain and France, of which the French and Indian War had been a part, aroused hope that the land would be quickly granted. These expectations were overshadowed by the Royal Proclamation of 1763 which (among other provisions) forbade colonial governors from issuing land grants west of the Allegheny Mountains. Yet Washington chose to forge ahead, as evinced by a September 1767 letter to William Crawford, a Pennsylvania surveyor:

. . . I can never look upon the Proclamation in any other light (but this I say between ourselves) than as a temporary expedient to quiet the minds of the Indians. It must fall, of course, in a few years, especially when those Indians consent to our occupying those lands. Any person who neglects hunting out good lands, and in some measure marking and distinguishing them for his own, in order to keep others from settling them will never regain it. If you will be at the trouble of seeking out the lands, I will take upon me the part of securing them, as soon as there is a possibility of doing it and will, moreover, be at all the cost and charges surveying and patenting the same . . . . By this time it be easy for you to discover that my plan is to secure a good deal of land. You will consequently come in for a handsome quantity.12

Washington was clearly willing to take considerable risks in seeking out choice land for himself. In the same letter, however, he warned Crawford "to keep the whole matter a secret, rather than give the alarm to others or allow himself to be censured for the opinion I have given in respect to the King's Proclamation." He concluded by offering Crawford an alibi should his behavior be called into question. "All of this can be carried on by silent management and can be carried out by you under the guise of hunting game, which you may, I presume, effectually do, at the same time you are in pursuit of land. When this is fully discovered advise me of it, and if there appears a possibility of succeeding, I will have the land surveyed to keep others off and leave the rest to time and my own assiduity." In fact, the letter marked the beginning of a very profitable fifteen-year partnership. Less than two weeks after he had received it, Crawford informed Washington about several tracts in the vicinity of Fort Pitt, and the two men continued to collaborate until Crawford's death in 1782.

Eight survey tracts
along the Kanawha River,
1774?


Washington persisted in his attempts to secure the military bounty lands. In 1769, Governor Botetourt of Virginia at last gave him permission to seek out a qualified surveyor and to notify all claimants that surveying would proceed. Once the surveying was completed the land could be divided among the remaining Virginia Regiment veterans or their heirs. Washington arranged to have Crawford appointed the "Surveyor of the Soldiers Land." In the fall of 1770 Washington, Crawford, and a fellow veteran named Dr. James Craik set out from Fort Pitt by canoe to explore possible sites for the bounty lands, making notes and observations as they journeyed to the junction of the Ohio and Great Kanawha Rivers and several miles up the Great Kanawha.

The next year, Crawford began to survey the tracts he and Washington had identified on the Great Kanawha expedition. Eight of these tracts are shown on a composite map now in the collections of the Geography and Map Division that Washington drew in1774 from Crawford's surveys. Out of a total of 64,071 acres apportioned on the map, 19,383, or approximately 30 percent, were patented in Washington's name. In a 1794 letter to Presley Neville, Washington said that these lands were "the cream of the Country in which they are; that they were the first choice of it; and that the whole is on the margin of the Rivers and bounded thereby for 58 miles."13In addition to Washington's acreage the map shows the lands surveyed and apportioned to other Virginia Regiment members, including Colonel Joshua Fry, Colonel Adam Stephen, Dr. James Craik, George Mercer, George Muse, Colonel Andrew Lewis, Captain Peter Hog, Jacob Van Braam, and John West. Several of these individuals were distinguished in their own right. Joshua Fry, for example, was one half of the team which produced the well-known 1755 Map of Inhabited Parts of the State of Virginia, considered to be one of the finest examples of colonial mapping; Jacob Van Braam had been Washington's interpreter at Fort Necessity in the French and Indian War; and Dr. James Craik was Washington's lifelong friend and physician......?

[chiggerbit]

In the long run however, these unwashed, hard-fighting fanatics turned out to be useful to the aristocracy in developing their vast land grants in the colonies. For example, from the 1730s onward, the Virginia elite sought to populate the Blue Ridge Mountains as a barrier between the Indians and their lowland slave plantations

See, that was a critical difference (in my mind) between the French and the English. The French brought their men over, but the families, if there were any, were left behind in France. In addition, the French didn't really try to grasp the land from their Indian allies, but co-existed with them. Their main purpose was to trade with the Indians, mainly for pelts. The English, on the other hand, brought their women and children with them. Christ, i think only three women survived to the spring following the Mayflower's landing at Plymouth. But, they brought their families, and they reproduced like rabbits, in addition to huge numbers of immigrants coming over. And that, I think, more than anything else, is how the colonials won against both the Indians and the French. It was like a tidal wave of population.

[Joe Hillshoist]

I'll say. The same thing happened in Australia to a fair extent.

Still looking for the correspondence from England re native rights in Australia.

[chiggerbit]

Ok, back on-topic.


In order to receive right to certain benefits, a tribe must be recognized by the federal government and is largely controlled by the Bureau of Indian Affairs.

The list of federally recognized tribes can be found here:

http://en.wikipedia.org/wiki/Federally_ ... zed_tribes

The process of becoming officially recognized as as a tribe has been complicated, as has been even the definition of what an Indian is. In addition, the definitions have shifted over time. It's too complicated to summarize, so here's my friend, wiki:


http://en.wikipedia.org/wiki/Native_Ame ... ted_States

Native American recognition in the United States
From Wikipedia, the free encyclopedia

President Coolidge stands with four Osage Indians at a White House ceremony

Native American recognition in the United States almost always refers to the process of a tribe being recognized by the United States federal government, or to a person being granted membership to a federally recognized tribe. There are 561 federally recognized tribal governments in the United States.

The United States recognizes the right of these tribes to self-government and supports their tribal sovereignty and self-determination. These tribes possess the right to establish the legal requirements for membership.[1] They may form their own government, enforce laws (both civil and criminal), tax, license and regulate activities, zone, and exclude persons from tribal territories. Limitations on tribal powers of self-government include the same limitations applicable to states; for example, neither tribes nor states have the power to make war, engage in foreign relations, or coin money.[2]

Legal definitions of Indian abound; according to a 1978 congressional survey, there were upwards of 33 separate definitions of "Indian" used in federal legislation. The number of definitions increased when tribal enrollment statutes were included.[3] U.S. Government agencies may have varied definitions of "Indian." For example, the National Center for Health Statistics currently assigns the mother’s race to a child born to parents of different "races". When people give multiracial responses to questions of heritage, only the first race is entered.[4]

The 1978 American Indian Religious Freedom Act uses a two-part definition which is especially influential.[5] It defines an Indian as a person who belongs to an Indian Tribe, which in turn is a group that "is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
Historic judicial and legislative definitions


Federal courts have not universally required membership in federally recognized tribes for a person to be classified as Indian. At times a person's membership in a federally recognized tribe was not sufficient for classification as Indian in the eyes of the courts.[6].

The Major Crimes Act of 1885 placed seven major crimes under federal jurisdiction if committed by a Native American in Native American Territory. The Department of Justice required that a defendant be an enrolled member of a tribe to be covered by the Major Crimes Act.[7][8].

In his 1935 Memorandum to John Collier, Commissioner of Indian Affairs, the Assistant Solicitor, Felix S. Cohen, discussed the rights of a group of non-tribal Indians under the Indian Reorganization Act. This Act defined a person as Indian based on three criteria, tribal membership, ancestral descent, or blood quantum. (Cohen said of the group now known as the Lumbee Indians, recognized by the state of North Carolina: "[Clearly this group is not a] federally recognized Indian tribe. Neither are the members of this group residents of an Indian reservation.")[citation needed]

In the 1930s when it was more involved in determining classification of American Indians, the federal government used five factors to certify individuals who claimed to be more than half-blood Indian: tribal rolls, testimony of the applicant, affidavits from people familiar with the applicant, findings of an anthropologist, and testimony of the applicant that he has retained "a considerable measure of Indian culture and habits of living." The attempt to use physical characteristics to define Indians created some paradoxical situations. In 1939, for example, the BIA sent Harvard anthropologist Carl Selzer to Robeson County, North Carolina to review the claims of the Lumbee, who were of mixed-race descent. Using methods of assessment then used in physical anthropology, but since discounted, "He measured their features and put a pencil in each Indian's hair, noting 'Indian' blood if the pencil slipped through and 'Negroid' if it did not. The results of his study were absurd, listing children as Indian while omitting their parents, and placing brothers and sisters on opposite sides of the half-blood line."[9]
[edit]
Terminated recognition
Main article: Indian termination policy

Elderly Klamath woman by Edward S. Curtis, 1924

In the 1950s and 1960s, the federal government saw certain tribes as sufficiently capable of self-government, and thus "no longer in need of federal supervision." The government terminated its relationship with numerous tribes under this policy, including the Menominees of Wisconsin, and the Klamath of Oregon. Many tribes opposed this, and have sought restoration of recognition. Not all have received restoration and Brownell (2001) reports that the policy has "devastated" many of the groups.[10] In particular, the tribes in California have been heavily affected by the termination era. For example, the Taylorsville Rancheria was established and participated in the IRA, but during the termination era the tribe's land was sold to Plumas county to be used for a park and roping club. The government failed to officially terminate the tribe through an act of congress, but the tribe was not included on the Federally Recognized tribes list. The Taylorsville Rancheria has been in limbo since that time and continues to struggle for their restored status as a recognized tribe.
[edit]
Recent shift to "political" definition

Because continuing to determine Indian membership by racial criteria, such as blood quantum or Indian descent, would leave the government in a constitutionally indefensible position, it has attempted to change how its statutes and regulations provide for the distribution of benefits to Indians. Native American concerns over equal protection and tribal sovereignty have led the federal government to reduce its role as arbiter of race-based eligibility standards. This policy of allowing tribes self-determination on membership as well as other aspects of their lives has developed since the Nixon administration in the 1970s.[11] Nixon said the goal should be "to strengthen the Indian's sense of autonomy without threatening his sense of community. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support."

The pivotal legislation of the era was the Indian Self-Determination and Education Assistance Act of 1975. This act began the government's process of transferring authority for administering federal grants and programs for Indians to tribal governments. Senator Daniel K. Inouye, Chairman of the Senate Select Committee on Indian Affairs, said in 1994 that, "Sovereignty, the inherent right of self-government and self-determination, is the focal point in all Indian issues."[12]

The government has shifted to social constructs: "political" definitions by which legislation has defined Indians based on membership in federally recognized tribes.[13]. The government and many tribes prefer this definition because it allows the tribes to determine the meaning of "Indianness" in their own membership criteria. Some analysts criticize the federal government's role even in this limited way, as still setting certain conditions on the nature of membership criteria.[5]

In some cases, an enrolled member of a Federally Recognized Tribe may have no documented Native American "blood" (biological descent). Some of the Freedmen of the Cherokee Nation of Oklahoma used to be such members. Following the Civil War, the US government's 1866 treaty with the defeated Cherokee, who had been Confederate allies, required them to free their slaves and to provide the freedmen with citizenship in the tribe. By recent referendum, the Cherokee Nation limited membership to only those people who could show descent from at least one Native American listed on the Dawes Rolls. This excluded nearly 2000 Cherokee Freedmen, who with their ancestors had been participating in the tribe for generations. Litigation on this matter continues.

The Indian Arts and Crafts Act of 1990 may be the only recent federal Indian legislation that was, at all stages of legislative deliberation, supported by Indians.[14] This law required that only Indians be allowed to market their handicrafts as "Indian made" and be sold at Indian crafts fairs. This was to halt the economic loss to Indians due to questionable and fraudulent claims of this sort, which was estimated between $400 and $800 million a year. In the Act, Indian was described as "any individual who is a member of an Indian tribe; or for the purpose of this section is certified as an Indian artisan by an Indian tribe." An Indian tribe was defined more broadly than just to tribes with federal recognition, but also to "any Indian group that has been formally recognized as an Indian tribe by a State legislature or by a State commission or similar organization legislatively vested with State tribal recognition authority."[14] The broadness sought in part to protect the civil liberties of those who have Indian heritage and culture, but are not tribal members. [15] However, the definition was not broad enough to avoid disallowing many artists whose Indian background was not in doubt, including well-known Cherokee painter, Bert Seabourn.[16]

The 1994 Federal Legislation American Indian Religious Freedom Act gives another common definition, defining an Indian as one who belongs to an Indian Tribe, which is a group that "is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

The result of there being multiple legal definitions of Indian is that one may be eligible to receive educational grants, but not health benefits, one may be eligible to be chief of a tribe but not to obtain a Bureau of Indian Affairs loan or an Indian scholarship to a state university.[11]

Using federal laws to define "Indian" signals to some a continued government control over Indians, even as the government seeks to establish a sense of deference. Thus Indianness becomes a rigid legal term defined by the BIA, rather than an expression of tradition, history, and culture. Many groups which claim descendants from tribes that predate European contact not federally recognized. According to Rennard Strickland, an Indian Law scholar, the federal government uses the process of recognizing groups to "divide and conquer Indians: "the question of who is 'more' or 'most' Indian may draw people away from common concerns."[17]
[edit]
Recognition
[edit]
Gaining federal recognition

Today there are 561 groups (bands and tribes) recognized as Native American by the government. Those tribes which have already achieved federal recognition do not want the process made easier. Some spokesmen discuss what other kinds of groups might be encouraged, without encroaching on the recognized tribes. Cherokee Nation spokesman Mike Miller suggests that people with an interest in Indian culture can form heritage groups.[18] Federally recognized tribes are suspicious of non-recognized tribes' efforts to gain acknowledgement, concerned that they may dilute already limited federal benefits. As casino gambling has raised tribal revenues dramatically, there is more competition by tribal groups to gain federal recognition and the right to operate gaming on reservations.[19] Gaining recognition also is a way for Native American groups to assert their identity, their Indianness.[20]

Tribes were originally recognized as legal parties through treaties, executive orders, or presidential proclamations. The 1934 Indian Reorganization Act played a major role in the development of the concept of federal recognition. It provided recognition to those tribes with which the government already had a relationship. Under its provisions, some non-federally recognized tribes were enabled to become federally recognized.[17]

Acknowledgement criteria have been created by regulation based on statute. They are set by the Bureau of Indian Affair's Branch of Acknowledgement and Research. Since 19xx, representatives of federally recognized tribes have consulted with BIA on these criteria.

To be federally recognized a group must meet the following:
"[S]ince 1900, it must comprise a distinct community and have existed as a community from historical times;
it must have political influence over its members;
it must have membership criteria; and
it must have membership that consists of individuals who descend from a historical Indian tribe and who are not enrolled in any other tribe."[17] The existence of persistent political relationship as an aspect of tribal relations is also emphasized.[17]
[edit]
Recognition for individuals

The United States census allows citizens to check any ethnicity without requirements of validation. Thus, the census allows individuals to self-identify as Indian, merely by checking the racial category, "Native American/Alaska Native," [21]. In 1990, about 1.8 million people self-identified in the census as American Indian. About 60 percent of those, or 1.14 million people, are enrolled in federally recognized tribes.[22]

People who self-identify as Indian but are not a part of a federally recognized group often wish to join a recognized tribe. Holly Reckord, an anthropologist who heads the BIA Branch of Acknowledgment and Recognition, discusses the most common outcome for those who seek membership: "We check and find that they haven't a trace of Indian ancestry, yet they are still totally convinced that they are Indians. Even if you have a trace of Indian blood, why do you want to select that for your identity, and not your Irish or Italian? It's not clear why, but at this point in time, a lot of people want to be Indian."[23] Sometimes such persons are called "Wantabes", searching their family history and attempting to find records of Native Americans in their family history, often by matching names with persons on Indian census records, such as the Dawes Rolls. Most in this situation are not successful, and can be called "Outalucks".[citation needed]

Recently, federally recognized tribes have seen the number of enrolled members increase. In some cases this has been because of a revival of interest in Native American heritage and culture. The number of people who self-identify as Indians has been growing even more rapidly.[24] Hastings Shade, the Cherokee Nation's deputy chief, talks of a Cherokee legend of a white snake that devours Indian land and people. Many generations later, a young Indian learns its ways and drives a stake through its heart. "In the end," the legend concludes, "only Indian blood will be left, and people will be lining up to try to prove they have Indian blood."[24]
[edit]

State recognized Indians

Some groups that are not federally recognized have still achieved state recognition.[20] Various states, most in the East, have a recognition process independent of federal recognition.[25] Some examples of state-recognized tribes are the Lumbee Tribe of North Carolina and the Houma Tribe of Louisiana.[10]

[chiggerbit]

Ok, I'm trying to figure out what the tax obligations are for corporations on tribal lands (Remember Indio?)

Here's info on Oregon tribes, although it's with regards to individual taxes, not corporations:

http://bluebook.state.or.us/national/tribal/tribal.htm

... Just as the state does not tax federal lands, federal or local governments, or non-profits, tribal governments are not subject to state tax. However, all Native Americans as individual citizens pay federal taxes and most pay state taxes, with the exception of those who live and work on a reservation or earn money on reservation/trust land or from trust...

[chiggerbit]

http://www.cbsnews.com/stories/2006/06/ ... 9020.shtml

Dark Days For Bureau Of Indian Affairs
Ex-Official Tells CBS News Of Widespread Corruption Inside Agency

By Sean Alfano



What Happened To Lobby Reform?

Former lobbyist Jack Abramoff was sentenced to five years and ten months in jail for fraud. As Gloria Borger reports, rewriting the rules of lobbying has lost steam in Washington.



Bill Whitney and CBS News Radio correspondents report that Jack Abramoff, who was at the center of a Washington corruption scandal, was sentenced to five years and 10 months in prison for fraud.



As a Senate committee prepares to release a report on the Abramoff scandal, Armen Keteyian speaks with a former official of the Bureau of Indian Affairs, who paints a troubling portrait of the agency.


Photo

Wayne Smith says he witnessed first-hand corruption during his time with the Bureau of Indian Affairs. (CBS)

Timeline
Abramoff, Kidan & SunCruz

Follow the events that led to the sentencing of former lobbyist Jack Abramoff and his business partner


(CBS) On Thursday, the Senate Indian Affairs Committee, headed by Sen. John McCain, will release its long-awaited report on the Abramoff scandal, which has also cast a cloud over the government agency charged with managing Native American issues, the Bureau of Indian Affairs.

In an exclusive interview with CBS News chief investigative correspondent Armen Keteyian a former BIA official painted a troubling portrait of the agency.

One-quarter Sioux and the grandson of an Indian chief, Wayne Smith went to Washington in the summer of 2001 full of hope for his people. "We had a very profound belief that we could make a difference. That we could help out in Native America," Smith says.

Eight years as a top aide to California's attorney general taught Smith a lot about politics, but did little to prepare him for the raw political opportunism he says he witnessed when he took charge of Indian gambling at the BIA.

"I had lobbyists ... tell me that it was, 'It was our time, this is our time to make some money in the Indian game arena, the Indian, arena. We worked hard to get this president elected, and we expect to be rewarded for it,'" Smith tells Keteyian.

The goal, Smith adds, was for the lobbyists to make "a killing inside the BIA."

Smith says a who's who of Republican lobbyists, led by Jack Abramoff, redefined access and influence inside the BIA. All looking to cash in on the now $20 billion-a-year Indian casino business — triple the take of Las Vegas — making sure their tribes got federal approval to open casinos while keeping competing tribes out.

Their "point man," Smith says, was Steven Griles, the No. 2 official at the Department of Interior, home to the BIA.

Griles, Smith says, would "pass off notes or documents to you and ask, 'Where did you get these?' He would set up meetings, and you'd have a meeting with Abramoff and his clients where Steve would profess this was the appropriate way to go."

Dozens of e-mails released by the Senate Indian Affairs Committee reveal how Abramoff, now awaiting sentencing after pleading guilty to political corruption and fraud, made repeated references to meeting Griles, once calling him "our guy," and another time offering him a prized "invite" to his "fantastic box" at a Washington Redskins game.

Griles, who declined to be interviewed, has steadfastly denied any wrongdoing and points to an e-mail where Abramoff complains that "Steve ... won't discuss any of my clients with me."

"Senator, I don't recall the intervening on behalf of Mr. Abramoff's clients ever. I did not want to be involved in Indian gaming. And that is the truth," Griles proclaimed at a Senate hearing in November 2005.

As for Smith, today he is out of BIA and back in California, consulting with a handful of tribes on economic issues — a Native American who's no longer naive about the ways of Washington and its high-powered lobbyists.

"They have no respect whatsoever for Native Americans. They're there to make a lot of money," Smith says.

As for Griles, a source with direct knowledge of the McCain report says it "parallels" the committee's grilling of him. CBS News also learned from several sources that Griles remains a person of interest to the Justice Department task force conducting its own investigation.

[chiggerbit]

http://www.earthportals.com/Portal_Messenger/bia.html

Fraud
The Bureau of Indian Affairs
by Jennifer Hicks


Okay, let's face it. We've got a problem. And something must be done. The Bureau of Indian Affairs (BIA), a part of the Department of the Interior, has stolen billions of dollars from various Indian tribes. This is not an exaggeration. Nor is it an untruth, as you will see. The federal government has done nothing about this. Rather, they have ignored it, implicitly stating that it's okay to steal from America's Natives. How then can we look at Clinton's Initiative on Race as anything other than rhetoric? He bases the race initiative on his belief that there should be "responsibility from all". This is a noble goal, but shouldn't it apply also to governmental agencies?

By doing nothing, the government condones theft from American Indians. Certainly, this is neither a responsible stance nor one that promotes racial equality. According their mission statement, the BIA is "to promote economic opportunity" for the people they serve -- the American Indians. Such is not the case. Instead, with overt lack of respect and BIA's Bill Benjamin's sentiment that "it's just Indian money... it doesn't matter", the BIA is indicative of the government's own racist attitudes against Native peoples. In its 11/28/94 issue, U.S. News & World Report described the BIA as "the worst federal agency." Little was done.

Three years later, Ken Gover, Pawnee, took office as the Assistant Secretary for Indian Affairs. At his address to the 53rd Annual Convention of the National Congress of American Indians, he admitted,

At times, the agency [BIA] has carried out offensive, destructive policies and has approached Indian Affairs in a paternalistic, disrespectful manner.

He went on to say,

We must keep you informed about what is happening within the Bureau. If we're not telling you what we're doing, it's natural for you to conclude that we're not doing much.

Interestingly, though, the last press release dealing with the BIA's mismanagement of funds was last November, almost a half year ago. On November 14, 1997, a press release from the Department of the Interior admitted $1.97 billion in "unreconciled transactions" emanated from the BIA. The press release defines an unreconciled transaction as "one in which source documents could not be located to verify the accuracy of an entry on the general accounting ledger." Sounds suspiciously like theft, to me. In an attempt to appease the Natives of America from whom it stole, the BIA and DOI have offered extremely unfavorable settlement terms to the affected tribes.

A recent Business Wire story reported that "57 percent of government employees say they've seen ethical violations." David L. Henry would agree -- and go several steps further, further illuminating the corruption and massive fraud within the BIA. Henry, a non-Indian and CPA, began his career as an accountant working for Arthur Andersen & Co. He later worked as controller for a group of construction companies , Volkswagen, and Reader's Digest. Clearly, he knows finances. In 1985, he joined the Bureau of Indian Affairs in Billings, Montana. Ten months later, he was fired for "insubordination" because, as he says:

I found fraud in every one of the several BIA financial systems I examined, and what can only be seen as criminal neglect in BIA accounting and auditing in general. The loss to Indians from fraud, and the liability to taxpayers to replace missing money in BIA trust accounts is more than a billion dollars.

He didn't stay quiet. Instead, he wrote a book called Stealing From Indians: Inside the Bureau of Indian Affairs: An Expose of Corruption, Massive Fraud and Justice Denied. Through extensive use of third-party evidence, analysis, and audits, Henry asserts:

Information fed into the agency's computer system is disorganized and erroneous. An estimated $5.8 billion has not been collected (since 1979) from companies that pump oil and gas from reservation lands, thus robbing Indians. In some cases, money that belonged to individual Indians and tribes was deposited in slush funds through accounts set up under phony names. There are thirty recent incidents in which federal employees were allegedly involved in theft, embezzlement and fraud on Indian reservations, yet few were prosecuted. BIA sponsored Indian programs failed to improve the economies of reservations, and BIA failed to provide quality education for Indian children. Housing programs are riddled with scandal, and housing in many areas is shockingly substandard. Indian health remains poor, with diabetes reaching epidemic proportions on some reservations. The BIA cannot manage its own money, or account for millions in equipment and supplies.

One of the primary problems according to Henry is that no federal law exists against fraud, if the fraud is committed by a federal employee under "the color of his office." This is due in part to the doctrine of sovereign immunity. The doctrine of sovereign immunity basically says that States (and the federal government) can't be sued unless they agree to be. According to Mike Taylor, tribal attorney for the Colville Confederated Tribes,

The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not jut a few individuals (such as the people who file lawsuits).

And, while many state supreme courts have eliminated the doctrine of sovereign immunity, the federal government has not. This means that the BIA has no liability and can not be taken to court -- no matter how much money is part of "unreconciled transactions".


Henry has proposed that the doctrine be repealed. His Hobbes- Henry Act would eliminate such protection. We cannot expect government officials to abide by the law as long as a law exists to protect them when they break it. Yet his proposed bill has not yet been heard in Congress for it lacks a congressional sponsor. Indeed, Henry's proposal goes to the heart of the Eleventh Amendment of the Constitution. The amendment basically says it's unconstitutional for federal courts to entertain suits brought by private parties against the State (or federal government) without its consent. Clearly, then, finding a sponsor may be a challenge. But, not an insurmountable one. Not too long ago, a little girl named Megan was abducted, kidnapped by a known abuser of children. Her parents were outraged. Their neighbors supported them. Petitions circulated. New Jersey Governor Christine Todd Whitman supported the proposed law. Eighty-nine days after Megan's disappearance, Megan's Law was signed into effect. Eighty-nine days have long since passed. Henry has been talking about the fraud in the BIA for a decade. It's time to change this.

No, we're not talking about a little girl. We're talking about many little girls and many little boys. We're talking about many Elders. We're talking, basically, about many people who are being told to settle for less than what is owed to them. And, it's not just money. American Indians are owed equal treatment.

Download Henry's book for PCs. (For Macs, download a compressed version here.) He is supplying the text at no cost because the information needs to get out. It's an expose on the grandest of scales. Complete with names and proof. Send your comments to your senators. Indicate your support of the Hobbes-Henry Act and decry the proposed settlements.