Legal/Political Commentary on the War Against Sovereignty in the 21st Century
Statement of Lakota Student Alliance
November 2002
Oglala Lakota Nation - In View of the Republican inspired SD Voter Election fraud headlines and the Florida election recount issue of 2000, the Oglala Sioux Tribal Election office is embroiled in controversies of their own. On this pretext, the Lakota Student Alliance believes it is the people's right to know that a current tribal presidential candidate's potential victory could have devastating effects on Oglala National sovereignty. Tribal sovereignty is a status higher than a state's, and has been enjoyed collectively by tribal members, institutions, and governments. Though it has reduced in scope to a status of "quasi-sovereignty" or "residual sovereignty" the US government, nevertheless, has a fiduciary and treaty obligation to protect the "trust" status of tribes. States which despise this sovereign status often show disregard for the supreme court decisions and legislative acts which protect our tribes sovereignty.
On February 20, 1999, the American Indian Movement issued its statement repudiating the manipulative anti-AIM posture, and the disregard of Indian Nations Sovereignty, by former AIM personality Russell Means.[fn1] In the wake of this statement, Means recently emerged on the Reservation announcing his candidacy for Tribal President, revisiting an old ideological campaign platform that now would seem to threaten the tribal sovereign status. Whereas, over 25 years ago, when he lost his first bid for presidency, that same platform would have been more savory as federal courts and legislative acts often favored tribal sovereignty. Today a less sensitive Supreme Court system and Legislative body is increasingly becoming anti-"Indian Country" as tribal sovereignty comes under siege.
MEANS' PRESIDENCY: A PLATFORM FOR ANTI SOVEREIGNTY?
A sovereign tribal nation has and enforces its own constitution without federal interference, as evident in the 2002 Oglala Tribal elections in Pine Ridge Indian Reservation. The Oglala Sioux Tribal Election committee qualified former AIM personality Russell Means, to hold public office. Tribal election candidacy became an issue in 1984, when the SD federal District court ruled that Tribal election procedures and decisions regarding who may run for office or who may vote are not subject to review by federal officials nor courts. Means v. Oglala Sioux Tribe, (11 Indian Law Rep.3024 (D.SD. 1984)); Wheeler v. US Dept of Interior, (811 F.2d 549 (10th Cir 1987)). Thus, the Oglala Sioux Tribal Election commission's decision cannot be interfered with, by federal officials nor federal courts.
Another aspect of Indian Nations sovereignty was also challenged by Means after he was charged with Battery of his father in law at an Arizona residence on the Dine` (Navajo) Nation in December 1997.[fn2] Means pled "not guilty" claiming the Dine` Nation has no power to prosecute him because he is a member of another tribe. A challenge to tribal criminal jurisdiction over non-member Indians on reservations equals anti-sovereignty. AIM states it has always supported and advocated for Tribal sovereignty in the US since it has coordinated the 1972 "Trail of Broken Treaties" Caravan. A recent AIM press statement commented "Sovereignty, of course, has become the basis of all forms of development, be it strengthening of Indian governments, court systems, law enforcement, educational institutions, and, yes, casinos and bingo halls which brought about an infusion of much needed capital and all forms of economic development. Today, many of our tribal leaders and Russell Means have either forgotten or never understood this reality."[fn3]
Neither is Russell Means a member of AIM, nor has he been since his most recent resignation in 1988.[fn4] Yet, his web site exploiting AIM by his sales of "AIM club" memberships to non-indians continues the pattern of fraudulent misrepresentation by Means for which he is so reputable.[fn5] Means' anti-AIM persona was discovered in 1985 during the US counterinsurgency war against Nicaragua, at which time Means aligned himself with Ronald Reagan's State Department crony Elliott Abrams[fn6] and the US Central Intelligence Agency's arming of "Contra" death squad forces fighting to overthrow Nicaragua's Sandinista government.[fn7] Furthering this association, Means was reportedly hired to speak at engagements coordinated by the Right wing Unification Church (founded by Rev. Sun Myung Moon).[fn8] Soon thereafter, Means encouraged an alleged "Split" in AIM, orchestrated by a network of so-called "Autonomous AIM" Chapters based out of Denver Colorado.
Recognizing the anti-Indian movement became more apparent as we saw the Means-led autonomous group, which claimed they were "pro-Indian" during the 1985 Nicaragua fiasco, signing onto anti-AIM declarations alongside anti-Treaty icons like Minnesota Indian journalist Bill Lawrence (Native American Press),[fn9] whom was discovered to be a member of a growing anti-Treaty network (called the "Anti Indian Movement" by scholars.) This network included such characters as Minn. Vikings Coach Bud Grant who formed "Proper Economic Resource Management (PERM),"[fn10] an anti-Treaty organization which stood against court decisions recognizing Ojibway (Chippewa) treaty rights to fish and hunt. (In 1999, the US Supreme court rejected an "equal footing doctrine" and affirmed the Chippewa treaty rights to hunt, fish and gather, in Minnesota v. Mille Lacs Band of Chippewa Indians, "The Chippewa retain the usufructuary rights guaranteed to them by the 1837 treaty.") Other anti-Sovereignty groups include one originating in Batesland SD in 1976, "Interstate Congress for Equal Rights and Responsibilities" (ICERR). Such groups employ tactics of manipulating Treaty and Sovereignty terms to the effect of "Equal Rights". SD Republican Bill Janklow, a self proclaimed Indian fighter, was also elected into the 2002 US House of Representatives. Tribes still recall his 1970s anti-AIM rhetoric "The only way to deal with the Indian problem in South Dakota...is to put a gun to the AIM leaders' heads and pull the trigger."[fn11] It has been speculated that the popularity of the "equal rights, equal footing" gesture, advocated by the anti-Indian movement, will no doubt have another ally in Congress.
Promoting "Change" in Tribal Sovereignty, should not be by Eliminating "Reservations", for it would instead have a reverse effect in pursuit of Anti Sovereignty and would result in a weaker Tribal governing system, which, by the way is the only active governing system on the reservation. By "chipping away" at our Treaty rights and Sovereignty in federal courts, the Federal Indian law system is strengthening our resolve to pursue an International Status as suggested by the Lakota elders and encouraged by the Oglala Sioux Tribal resolution/position paper "An Oglala Lakota Response". But we question the motive if we submit to a CIA backed tribal leadership disguised as activism.
NATIVE NATIONS SOVEREIGNTY
A. Original Free and Independent Indian nations
In 1996, the Oglala Sioux Tribal council adopted resolution 96-76 which included a lengthy position paper titled, "An Oglala Lakota Response to the 'Statements of the United States of America on the Draft UN Declaration on the Rights of Indigenous peoples.'" This document was a response to the "quasi sovereign" or "residual sovereignty" tribal political status-imposed limitations by US courts.
Justice Joseph Story, in 1833, said that there was no doubt that the Indian tribes inhabiting the continent at the time of its discovery, "acknowledged no obedience or allegiance or subordination to any foreign sovereign whatsoever; and as far as they have possessed the means, they have ever since asserted this plenary right to dominion, and yielded it up only when lost by the superior force of conquest, or transferred by a volunteer cession."[fn12] Despite this blunt acknowledgment of sovereignty the US gradually usurped the sovereign powers of tribal nations on the political/legal basis of "Christendom." This tenet asserts that the US, by a supposed right of Christian Discovery has assumed sovereignty and dominion over all Indian nations within the boundaries created by the US. This gradual usurpation of Indian sovereignty eventually resulted in placing the sovereign nations into the status of "Domestic Dependent Nations." Cherokee v. Georgia, (30 US 5 Pet. 1831).
"The Oglala Lakota nation was among those nations described as in fact free and independent. Since the Oglala did not cease to be a free, independent, sovereign nation when it entered into treaty relations with the United States, and since they did not surrender their free and independent political status by accepting the protection of the US, the only reasonable conclusion we can arrive at is this: The Oglala Lakota Nation continues to this day to be fully entitled to maintain its inherent right to a free and independent political status as a nation."[fn13]
B. Reality Check: "Residual Sovereignty".
Despite the Oglala Lakota response's acknowledgment of the "inherent" sovereign status, the Oglala Sioux Tribe is still mired in Federal Indian law. And though we wish it to be true, the "inherent" sovereign status of Indian tribal nations is a long term goal, as the limitations to sovereignty have not reached their end. "The legal status of the tribes as nations was therefore clouded by uncertainties, and it was left to the supreme court to attempt to resolve them."[fn14] Legal Scholars of Federal Indian law also agree that federal attempts to resolve tribal sovereignty issues are uncertain, "Supreme court decisions have altered the formerly exclusive federal and tribal relationship, in order to create a role for the states' interest and regulatory power."[fn15] By diminishing the "inherent" characteristic of sovereignty, the tribes sovereignty becomes limited. Soon criminal jurisdiction is affected. In Oliphant v. Suquamish Indian Tribe, (435 US 191, 1978) the tribe sought to exercise its inherent sovereignty over a non-Indian in a criminal case. The court held that the tribe lacked criminal jurisdiction over non-Indians and was inconsistent with the "domestic dependent" Cherokee v. Georgia, status of the tribes.
Three years before Oliphant, sixty five Independent Oglala Nation defendants declared they were completely sovereign after they were indicted for criminal acts for participating in the Feb 1973 Wounded Knee protest. The defendants said the US does not have criminal jurisdiction over citizens of other nations. US v. Consolidated Wounded Knee cases, (389 F.Supp 235, 1975) The court held that the Sioux were once "fully sovereign" but Justice Urbom added "They are not now and have not been for a long time ... There is a residue of sovereignty, however..." This residual sovereignty meant that the tribes were thrust into the federal Indian law realm with limitations to their sovereignty. Yet states could not take that sovereignty away. "The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation's history." McClanahan v. Arizona Tax Commission, (411 US 164, 1973). The limitations by the Supreme court did not prevent the tribes from punishing their own members, while it lacked criminal jurisdiction over non-Indians, tribes still had criminal jurisdiction over its own members. US v. Wheeler, (435 US 313, 327, 1978).
While Treaties are the Supreme Law of the Land, the Appropriations Act of 1871 officially ended Treaty making between the US and Indians. 25 USC s71 (1871). Courts have held that Treaties are "not a grant of rights to the Indians, but a grant of rights from them - a reservation of those not granted." US v. Winans. 198 US 371, 381 (1905); Winters v. US, 207 US 564 (1908). Congress is recognized as possessing the power to abrogate (i.e. change or nullify) an Indian treaty. Lone Wolf v. Hitchcock, 187 US 553 (1903). Soon after, Federal and state laws slowly diminished the internal sovereignty of tribes. Major Crimes Act (1885), General Allotment Act (1887), Burke Act (1906), PL 280 (1953).
Another important fact for sovereignty advocates to consider is that in Supreme Court history between 1998 to 1988, "Indian Country" has been ruled against almost entirely. The Native American Rights Fund research titled "Indian Law Cases Before the United States Supreme Court 1988-1998 Chronology of a Decade" documented 26 Supreme Court decisions within that decade. (<http://www.narf.org/nill/sctdecade.htm>).
C. Tribal Jurisdiction may be gained by the States.
Punishing its own members did not render a tribe absolutely sovereign. Still Indian Sovereignty maintained its strength. In 1965, The court characterized Indian nations status as being higher than states, "Indian tribes are of course not states; they have a status higher than that of states." Colliflower v. Garland, (342 F.2d 369, 9th cir, 1965) Congressional acts like PL 280 furthered the way for slow encroachment of state jurisdiction in Indian Country. The Wheeler decision said the tribes had jurisdiction over its own members but could not punish non member Indians. In 1990, the Supreme court decided that a tribe lacks jurisdiction over a non-member Indian within its reservation boundaries and that non-member Indians have the same status as non-Indians. Congress must also enact legislation authorizing tribes to extend criminal jurisdiction over non-member Indians. Duro v. Reina, (110 S.Ct 2053, 1990). Thus in 1991, Congress enacted PL 102-137, " An Act To make permanent the legislative reinstatement, following the decision of Duro against Reina (58 USLW 4643, May 29, 1990), of the power of Indian tribes to exercise criminal jurisdiction over Indians."
Non-members also tasted the power of tribal exclusion from the reservation, "or to condition their presence on the reservation." New Mexico v. Jicarilla Apache Tribe, (426 US 333, 1983). As well as the power of extradition by tribes, "The jurisdiction in the Navajo tribe over Intersovereign rendition" was found sufficient to defeat the agreement of the state of Arizona to extradite a non-member Indian from the Navajo reservation. The appeals court held that Arizona's exercise of extradition authority would interfere with the sovereign power of the tribe to make its own extradition arrangements. Arizona ex.re. Merrill v. Turtle, (413 F.2nd 683, 9th cir, 1969)
TRADITIONAL METHOD: Decolonizing Law
While the Oglala are looking for ways to determine their own self governance and struggling in their own political realm, the time is ripe for inherently sovereign native nations to recognize traditional customary methods of remedy. And if we are studying yesterday's traditional form of governance, then we should keep in mind that traditional governance needs traditional leadership and members. It has been suggested that practicing traditional customary justice is an opportunity to "Decolonize" the present Federal Indian Law system by restoring traditional practices which were outlawed by the colonizers.
Such traditional culturally based customary concepts included 1) Spirituality: the "Hunka" (Making of Relatives) ceremony prescribed by the Sacred White Buffalo Calf Woman "Pte San Win" as part of the 7 rites of Lakota spirituality; 2) Banishment; 3) Taking away important status held by tribal members for a period of time; 4) Reparations and Restitution "Giving Property of offender to Victim; 5) Shaming, Ridicule behavior of offender. These were a few of the concepts of Traditional Justice practiced in some areas of Traditional Native communities. "The Indigenous justice paradigm is based on a holistic philosophy and the world view of the aboriginal inhabitants of North America. These systems are guided by the unwritten customary laws, traditions and practices that are learned primarily by example and through the oral teachings of tribal elders." [fn16]
In Ex Parte Crow Dog, (109 US 556, 1883) western courts learned a glimpse of traditional customary law in practice by traditional Lakota. Among the Sicangu (Brule) Lakota, an Indian named Crow Dog killed the chief Spotted Tail. After the killing, in accordance with traditional custom, Crow Dog met with Spotted Tails family to resolve the problems and avoid future feuds within the tribe. Spotted Tails family accepted the compensation that Crow Dog proposed. He then turned himself into the federal authorities, was tried and convicted of murdering Spotted Tail. The Federal court concluded that the Brule Sioux Tribe, not the federal government, possessed jurisdiction over the murder of Spotted Tail. The writ of habeus corpus was issued and Crow Dog was set free.
As a result of the decision, a wave of protest ensued in the Western world outside of the reservation. Public opinion mounted against the traditional form of justice and so in 1885, Congress passed the Major Crimes Act. We will not delve into this legislation as it does not pertain to the establishment of a decolonized traditional justice concept. It surely does serve as an example of the diminishment of tribal sovereignty and jurisdiction.
The diminishment should not preclude, however, the principles of traditional justice systems. "Indian Traditional Law usually gives complete jurisdiction to the Indian government to rule Indian territory, to manage Indian national affairs, to settle disputes and so on, all without outside interference. On the other hand, if you go by United States law, actual Indian jurisdiction is much less than the inherent, sovereign jurisdiction which each nation has or had under its own law. Of course, each Indian nation must be looked at individually in light of its own history and law...According to Indian Law and international law, [del] Congress has no power to terminate another nation's government." [fn17]
CONCLUSION
With respect to this traditional native customary form of justice, it is not in our nature to condemn a fellow Lakota to the colonized western legal system of justice. This would contradiction our intentions of support for sovereignty. Contradictions arise though, (not with our position) but with Means' battery of a Navajo elder, if he professes to value the Lakota traditional justice paradigm within the realm of traditional justice systems. His action also negates the traditional Lakota value system that our people are trying to encourage among the Lakota youth: Respect, Wisdom, Courage, Fortitude. It corrupts this value system by sending the younger people the message that "its acceptable to hurt our elders and then provide leadership to our people."
In decolonizing western precepts of justice, it is respectful to observe the sovereignty of a tribal nation. Indian nations should have the right to exercise their authority over criminal matters in manners consistent with traditional customary law. We encourage tribes to inculcate a more traditional native justice concept into their legal/judicial systems. Currently the Pueblo peoples are among the very few who still practice traditional customary law and justice.
We urge those tribes that are aware of the the anti-Indian movement to: 1) Commission a "Human Rights Watch" group to monitor the activities of the increasingly aggressive anti-sovereignty groups in or near our Lakota reservations; 2) Enact Hate crimes laws consistent with tribal sovereignty to permit prosecution of violence aimed at tribal members by racial extremists and other forms of intimidation and harrassment against tribal members.
We urge, Pursuant to the monitoring and legislating of hate crimes law, the tribes must institute a land audit from a neutral organization or a neutral International organization in order to promote the effort at Indian/White relations.
We urge tribes to pursue negotiating the removal of any extensions of state or county jurisdictions from Indian reservations, thereby strengthening tribal sovereignty.
We urge the Lakota nation tribes to develop a legislative version of the original "20 point Proposal" to ensure the future of Indian Nations, allowing for Congressional legislational intent on protections of Tribal interests.
Notes.
1. AIM Grand Governing Council. "AIM on Russell Means" Press Statement. Mpls MN, Feb 20, 1999. http://www.aimovement.org/moipr/onrussellmeans.html
2. Brenner, Malcolm. "Russell Means Pleads not Guilty in Chinle Battery" Independent [Gallup] 2 Jan 1998: p.1
3. AIMGGC, Op. Cit.
4. Bigham, Joe and R. Wells, Assoc. Press "Indian Activist Russell Means says he's retiring from AIM" Star Tribune [Mpls} 8 Jan 1988.
5. Savage, Steve Pipkin. "Clarifying my thoughts about Russell Means" 17 Jul 2000. "My family gave to the American Indian Movement, beginning at Yellow Thunder Camp, between $125,000 to $175,000...The person to whom my family gave the love gifts was Russell Means/TREATY" http://www.dickshovel.com/sav2.html
6. Sklar, Holly. Washington's War on Nicaragua. Boston: South End Press. 1988. In 1980s, Elliott Abrams was the Assistant Secretary of State for Inter American Affairs. p. 144. Abrams was also a member of the national security council, which functioned as the Contra support system. In Russell Means autobiography, he even admits to meeting with Abrams to coordinate the clandestine foray into Nicaragua's Atlantic coast.
7. Ibid. Sklar, p. 387-88; Kinzer, Stephen. "US Indians Enlist in the Miskito Cause" New York Times. 11 Nov 1985. "Groups of Miskito Indians have been in rebellion against the Sandinista government for more than four years." Their most prominent leader was Brooklyn Rivera.
8. Ibid. 241. "The Reverend Sun Myung Moon's Unification Church has assisted the Contras largely through its affiliates, CAUSA and the Nicaraguan Freedom Fund...contra leaders said that the Unification Church sometimes paid their bills for strategy meetings and fund raising events and helped them build state-level political support in the United States." In 1988 the Unification Church -owned newspaper Washington Times established the Nicaragua Freedom Fund.
9. AIMGGC. "Background: The United States Government War Against the American Indian Movement". http://www.aimovement.org/Docs/USvAIMwar.html. The "Edgewood Declaration".
10. Aamot, Mark. "The Anti Treaty Movement: The latest, racist rage against Native Americans." Circle magazine [Mpls] 1997.
11. Lurie, Jon. "Janklow: Old Indian Fighter or New Native Advocate?" Circle mag [Mpls] 1995; Matthiessen, Peter. In the Spirit of Crazy Horse. NY: Penguin Books, 1992. p. 107.
12. Story, Joseph. Commentaries on the Constitution of the United States. Vol 1, 1833 p.6.
13. Oglala Sioux Tribe. "An Oglala Lakota Response to the 'Statements of the United States on the Draft UN Declaration on the Rights of Indigenous Peoples.'"Position Paper. prepared by Steve Newcomb of Indigenous Law Institute. Resolution 96-76, 1996.
14. Canby, William. American Indian Law in a nutshell. St Paul: West Publishing, 1988. p. 66. Also, Deloria Jr., Vine and Clifford Lytle. American Indians, American Justice. Austin: Univ. of Texas Press, 1983.
15. Valencia-Weber, Gloria. "Shrinking Indian Country: A State offensive to Divest Tribal Sovereignty." Conn. Law Review. 1281 (1995): 1281-1322.
16. Melton, Ada. "Indigenous justice systems and tribal society" Judicature Vol. 79 no. 3, (Nov-Dec 1995): 126-33.
17. "A History of Indian Jurisdiction" American Indian Journal. [Washington DC] Vol 2, No 4.(Apr 1977): 2-15. Also Ortiz, Roxanne D. The Great Sioux Nation. Cincinatti: Moon Books, 1977.