Wednesday, June 27, 2007

Freedmen case in the Federal Court of Claims

This is a separate case than the case filed in the Federal District Court. They appear to be asking for a bit more than just citizenship and voting rights in the Cherokee Nation. Those Freedmen involved in this case, are those that do not have a Cherokee Ancestor on the Cherokee base roll required for citizenship in the Cherokee Nation.

Complaint Filed Against U.S. Department of Interior Seeking Treaty Benefits for Black Indians and Freedmen

WASHINGTON, Jan. 30 /PRNewswire-USNewswire/ --

Dr. Claud Anderson, president of the Harvest Institute Freedmen Federation (HIFF) announced that it has filed a Complaint in the United States Federal Court of Claims in Washington, D.C. against the United States Department of Interior and its Bureau of Indian Affairs (BIA) seeking legal redress and civil and property rights for the descendants of Black Indians and Black Freedmen.

HIFF discussed background and details of the Complaint at a noon press conference at the National Press Club in downtown Washington, D.C. Dr. Anderson said, "The Complaint is based upon treaties of 1865 and 1866 that were negotiated after the Civil War, between the United States government and slave-holding Indian tribes who had fought on the side of the Southern Confederacy during the Civil War." The slave-owning tribes included the Creek Nation, Cherokees, Seminoles, Choctaw and the Chickasaw Nations. Before the Civil War, these tribes had treaties with the United States. However, when these Indian tribes repudiated allegiance to the United States and supported the rebelling states by joining the Southern Confederacy, they in effect violated the terms of all existing treaties with the United States and rendered them null and void. When the Civil War ended, Congress passed the 13th Amendment, which abolished slavery. The slave-holding Indian tribes claimed sovereign nation status, and refused to
abolish slavery within their respective territories. Having just fought a war that ended slavery, the country could not allow Indian tribes within its borders to defy Congressional mandates and continue to hold slaves. The United States demanded that the Indian groups abide by the outcome of the War and free their Black slaves.

In order to reconcile differences over slavery, the United States entered into a series of agreements with the affected tribes. The treaties of 1865 and 1866 resulted from those negotiations. The treaties abolished slavery and mandated allotments of land and other benefits for the Freedmen and Black Indians. Freedmen were the emancipated slaves previously owned by Native Indians. Black Indians were the offspring of Indians and Blacks, whether slave or free. The Harvest Institute Freedmen Federation's lawsuit seeks enforcement of these treaties.

The Bureau of Indian Affairs in the U.S. Department of Interior is responsible for implementing the terms of treaties between Native American tribes, the United States government and Black Freedmen. Dr. Anderson said, "HIFF's legal complaint asks the Department of Interior to acknowledge responsibility of the United States government to the descendants of Black Indians and Black Freedmen. It further seeks that the Department establish contemporary procedures to distribute the allotments of land and other benefits such as tax exempt status, free college educations, rights to own and build casinos, annual income allotments and medical, health and housing services to the descendants of Black Indians and Black Freedmen."

The Harvest Institute Freedmen Federation (HIFF) is a partnership organization between The Harvest Institute and the Black Indians United Legal Defense and Education Fund. The purpose of the new organization is to pursue common legal issues.

SOURCE Harvest Institute Freedmen Federation

Tuesday, June 26, 2007

Federal Funding to Continue - BIA - June 22, 2007

June 22, 2007

Chad Smith, Principal Chief
Cherokee Nation
P.O. Box 948
Tahlequah, OK 74465

Dear Principal Chief Smith:

This letter is in response to your inquiry regarding whether the Department of the Interior intends to continue providing Federal funding to the Cherokee Nation, in light of the activities in Vann v. Kcmpthome, Civil Action 03-01711 (HHK), (D. DC).

The Department intends to continue providing Federal funding to the Cherokee Nation, unless otherwise directed by a Federal court or Federal legislation. The Department's position has been expressed in the United States Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction filed May 29, 2007, in Vann, and accepted by the district court's decision dated June 13, 2007.

Sincerely,

Jerry Gidner
Deputy Bureau Director -·Indian Services

cc: Jeanette Hanna, Director, Eastern Oklahoma Region

(to see an actual copy of the letter click the title above to go to the Cherokee Nation official site.)

For a copy of the December 19, 2006, Order in the Vann case click here.

Monday, June 25, 2007

2005 Tribal Membership 9th Circuit Case

Basically the only difference between this case and the Freedman vs Cherokee Nation case is: a civil war slave relic treaty of 1866 - The only Indian Nations I'm aware that have these types of Civil War Treaties are the Five Civilized Tribes in Oklahoma - shouldn't they be allowed, like any other Indian Tribe in the U.S., to determine their own membership? Or will Congress continue to treat this group of Tribes differently only because some Native Americans fought on the side of the Confederate Army - there were also a good many Native Americans from this area that fought on the side of the Union during the civil war.

Congress - let our people go!!

2005 U.S. App. LEXIS 19706,*;424 F.3d 959

KATHY LYNNETTE LEWIS, LARRY PAUL LEWIS, JR., JERRY LEE LEWIS, and CHAD ELLIOTT LEWIS, Plaintiffs-Appellants, v. GAIL NORTON, in her capacity as the Secretary of the Department of the Interior; TERRY VIRDEN, in his official capacity as Deputy Commissioner of the Bureau of Indian Affairs, a bureau within the Department of Interior; PHILIP N. HOGEN, in his official capacity as Chairman of National Indian Gaming Commission, Defendants-Appellees.

No. 03-17207

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

424 F.3d 959; 2005 U.S. App. LEXIS 19706

April 5, 2005, Argued and Submitted, Pasadena, California

September 13, 2005, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-03-01476-LKK. Lawrence K. Karlton, Senior Judge, Presiding.

DISPOSITION: AFFIRMED.

COUNSEL: Brian C. Leighton, Clovis, California, for the plaintiffs-appellants.Debora G. Luther, Assistant U.S. Attorney, Sacramento, California, for the defendant-appellees.

JUDGES: Before: Mary M. Schroeder, Chief Judge, Harry Pregerson and Stephen S. Trott, Circuit Judges.

Opinion by Chief Judge Schroeder.

OPINION BY: Mary M. Schroeder

OPINION SCHROEDER, Chief Judge:

The plaintiffs-appellants are siblings who brought this action against the United States claiming that they are entitled to recognition as members of the Table Mountain Rancheria, a federally-recognized Indian tribe, and therefore to share in the revenue of that tribe's very successful casino near Fresno, California. Although their claim to membership appears to be a strong one, as their father is a recognized member of the tribe, their claim cannot survive the double jurisdictional whammy of sovereign immunity and lack of federal court jurisdiction to intervene in tribal membership disputes. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978). [*2] We therefore must affirm the district court's dismissal of the action.

The plaintiffs-appellants are Kathy Lynette Lewis, Larry Paul Lewis, Jerry Lee Lewis, and Chad Elliott Lewis, four siblings whose father was admitted to the Table Mountain Rancheria in 2000. The defendants-appellees are officials of the Department of Interior, the Bureau of Indian Affairs, and the National Indian Gaming Commission.

The key events giving rise to this dispute are those surrounding the recognition of the Table Mountain Rancheria's status in 1983, after the tribe had been disbanded in 1959. In 1983, the United States District Court for the Northern District of California issued a judgment ordering the Secretary of the Interior to list the Table Mountain Band of Indians as an Indian Tribal Entity pursuant to federal law. Table Mountain Rancheria Ass'n v. Watt, No. C-80-4595-MHP (N.D. Cal. 1983). Following that decision, and the publication of the notice in the Federal Register, the Table Mountain Rancheria established its constitution. The Constitution provides that membership of the Table Mountain Rancheria shall consist of "all lineal descendants of persons named on the base roll . . . provided [*3] such descendants possess at least one-quarter (1/4) degree California Indian blood, regardless of whether the ancestor through whom eligibility is claimed is living or deceased."

The plaintiffs allege that they satisfy these qualifications for membership. They further allege that their natural father, a current member, and their natural grandfather, natural grandmother, and natural great-grandmother were all listed on the base roll of the tribe. The plaintiffs allege that they filed applications for membership with the tribe in November of 2000, but the tribe has never responded.

The plaintiffs filed this action in 2003. They seek declaratory and injunctive relief (1) ordering the agencies to order the tribe to recognize the plaintiffs as members, (2) prohibiting the agencies from providing government funds to the tribe until it recognizes the plaintiffs as members, and (3) ordering the agencies to prohibit the tribe from disbursing casino profits to its recognized members until it recognizes the plaintiffs as members. The district court dismissed the case under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The plaintiffs [*4] appealed.

DISCUSSION

We review de novo dismissals for lack of subject matter jurisdiction. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The Supreme Court held in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978), that a tribe is immune from federal court jurisdiction in disputes regarding challenges to membership in the tribe. That case involved a tribal membership ordinance denying tribal membership to children of female members who marry outside the tribe, while extending membership to children of male members who marry outside the tribe. Id. at 51. A female member who had married outside the tribe brought suit for declaratory and injunctive relief against the tribe, alleging that the membership criteria violated the Indian Civil Rights Act ("ICRA"), 25 U.S.C. §§ 1301-1303. The Supreme Court held that "Indian tribes are 'distinct, independent political communities [that] retain[] their original natural rights' in matters of local self-government." Id. at 55; see also Montana v. United States, 450 U.S. 544, 564, 67 L. Ed. 2d 493, 101 S. Ct. 1245 (1981); William [*5] C. Canby, Jr., American Indian Law 187 (West 1998). The Court stated that "[a] tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." Santa Clara, 436 U.S. at 72 n. 32. The Court therefore held that it did not have jurisdiction over the tribal membership dispute. Id. at 72.

Following Santa Clara, we have recognized that "the tribal self-government exception is designed to except purely intramural matters such as conditions of tribal membership . . . from the general rule that otherwise applicable federal statutes apply to Indian tribes." Donovan v. Coeur d' Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985); see also Apodaca v. Silvas, 19 F.3d 1015, 1016 (5th Cir. 1994); Smith v. Babbitt, 100 F.3d 556, 559 (8th Cir. 1996). Courts have held that tribal immunity bars suits to force tribes to comply with their membership provisions, as well as suits to force tribes to change their membership provisions. See Ordinance 59 Ass'n. v. United States DOI Secy., 163 F.3d 1150, 1157 (10th Cir. 1998); [*6] Apodaca, 19 F.3d 1015-16.

The plaintiffs here nevertheless contend there was a waiver of tribal immunity for this suit when the tribe itself went to court in 1983 to obtain the judgment recognizing the tribe and its membership roll at that time. A resort to litigation on the part of the tribe can, of course, result in some waiver of immunity, but our leading case in that regard teaches that the waiver must be a narrow one in order to be consistent with general principles of sovereign immunity. McClendon v. United States, 885 F.2d 627 (9th Cir. 1989).

McClendon must guide us here. In that case, a plaintiff brought suit against a tribe, alleging that the tribe violated its lease agreement. Id. at 629. The plaintiff argued that the tribe waived its sovereign immunity when, more than ten years earlier, the United States initiated an ownership dispute on the tribe's behalf against the plaintiffs' predecessor-in-interest. Id. We held that the tribe waived its immunity for purposes of establishing its interest in the land, but the tribe did not waive its immunity for the resolution of later disputes to enforce the lease. Id. at 631. [*7] We stated that "a tribe's waiver of sovereign immunity may be limited to the issues necessary to decide the action brought by the tribe; the waiver is not necessarily broad enough to encompass related matters, even if those matters arise from the same set of underlying facts." Id. at 630.

Given the principles recognized in Santa Clara and McClendon, we are unable to hold that the plaintiffs may maintain this claim. The Table Mountain Rancheria's waiver of sovereign immunity in 1983 to obtain federal recognition of the tribe and its membership roll at that time did not constitute a waiver of the tribe's sovereign immunity in perpetuity for the resolution of all claims to tribal membership.

The plaintiffs contend that there is no tribal remedy for their claims, and that this fact should confer jurisdiction on the federal courts. Under the tribe's constitution, the plaintiffs have recourse in the Tribal Council or the General Council. The plaintiffs argue that these remedies are inadequate, because those bodies are comprised of tribal members who do not want to admit the plaintiffs to the tribe, and because the tribe has not acted on their applications for membership [*8] in the tribe. The plaintiffs stress that there was an adequate tribal remedy in Santa Clara, see 436 U.S. at 65-66, and argue that this fact makes that case materially distinguishable.

The Court in Santa Clara held that nonjudicial institutions like Tribal and General Councils can be appropriate forums. The Court stated: "Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. Nonjudicial tribal institutions have also been recognized as competent law-applying bodies." 436 U.S. at 65-66 (internal citations omitted).

Following Santa Clara, the Tenth Circuit held that General Councils can be suited to resolve an intra-tribal conflict over tribal membership. Ordinance 59 Ass'n, 163 F.3d at 1157, 1160. The Tribal Council and the General Council in this case are not inadequate merely because they have not granted the plaintiffs membership. The issue is not whether the plaintiffs' claims would be successful in these tribal forums, but only whether tribal forums exist that could potentially resolve [*9] the plaintiffs' claims. See, e.g., id. at 1157; Smith, 100 F.3d at 559. We therefore must recognize the Tribal Council and the General Council as competent law-applying bodies in this case.

Finally, the plaintiffs argue that the federal courts have jurisdiction over this dispute under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721, and related regulations, 25 C.F.R. § 290. The IGRA waives tribal sovereign immunity in the narrow category of cases where compliance with the IGRA is at issue. See Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385 (10th Cir. 1997). However, the IGRA and its related provisions do not constitute a broad waiver of sovereign immunity covering an intra-tribal membership dispute whenever gaming revenues are at stake. See Smith, 100 F.3d at 557-59. To the contrary, 25 C.F.R. § 290.23 explicitly states that "disputes arising from the allocation of net gaming revenue and the distribution of per capita payments" are to be resolved through "a tribal court system, forum or administrative process." The IGRA and related regulations [*10] therefore do not waive the tribe's sovereign immunity over this intra-tribal membership dispute.

The plaintiffs of course did not sue the tribe directly, but filed this action against the federal agencies responsible for the regulation of tribal affairs, including gaming. They did so because they recognized that tribal immunity would create, at the least, a serious obstacle. For the very reasons we have already outlined that compel tribal immunity with respect to the plaintiffs' claims, their efforts to do an end run around tribal immunity must also fail. The Tenth Circuit has expressly held that plaintiffs cannot get around the Santa Clara rule by bringing suit against the government, rather than the tribe itself. See Ordinance 59 Assn., 163 F.3d at 1159-60. We agree. As the Tenth Circuit stated, a "federal court order compelling the [federal agency] to comply with the requests of [alleged members] would not have the effect of enrolling [alleged members] in the tribe because tribes, not the federal government, retain authority to determine tribal membership." Id. at 1160; see also Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991). [*11]

These doctrines of tribal sovereign immunity were developed decades ago, before the gaming boom created a new and economically valuable premium on tribal membership. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 48, 134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996). We agree with the district court's conclusion that this case is deeply troubling on the level of fundamental substantive justice. Nevertheless, we are not in a position to modify well-settled doctrines of tribal sovereign immunity. This is a matter in the hands of a higher authority than our court.

AFFIRMED.

Indian Civil Rights Act - 2006

This case appears to state that the Indian Civil Rights Act only applies in Criminal cases for Habeas Corpus or when there is no other forum available to plaintiffs.

In the Freedmen's case, the Cherokee Nation not only has a full judicial system, their case is currently being heard in the Cherokee Courts.

Federal Courts generally appear to abstain from getting involved in internal Tribal Affairs, membership requirements being an internal Tribal Affair.

2006 U.S. App. LEXIS 8791,*; 443 F.3d 1274

DON WALTON, Plaintiff-Appellee - Cross-Appellant,

v.

TESUQUE PUEBLO; TESUQUE PUEBLO FLEA MARKET; MARVIN HERRERA, individually and in his official capacity as Governor of Tesuque Pueblo; CLARENCE CORIZ; NORBERT LENO; MICHAEL ALBERT VIGIL; HAROLD SAMUEL; GARY MOQUINO; ALLEN DURAN; ROBERT DORAME, JR.; CLIFFORD MOQUINO, individually and in their official capacities as Tribal Councilors of Tesuque Pueblo; DUANE SILVA, individually and as an officer of Tesuque Pueblo; TESUQUE TRIBAL COURT; TESUQUE TRIBAL CONTRACTORS, 1-10, Defendants-Appellants - Cross-Appellees.

JICARILLA APACHE NATION; THE NAVAJO NATION; THE UTE MOUNTAIN UTE TRIBE; THE PUEBLO OF ACOMA; THE PUEBLO OF COCHITI; THE PUEBLO OF ISLETA; THE PUEBLO OF JEMEZ; THE PUEBLO OF LAGUNA; THE PUEBLO OF NAMBE; THE PUEBLO OF SANDIA; THE PUEBLO OF SAN JUAN; THE PUEBLO OF SANTA ANA; THE PUEBLO OF SANTA CLARA; THE PUEBLO OF SANTO DOMINGO; THE PUEBLO OF ZIA, Amici Curiae.

No. 04-2305 & 04-2310

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

443 F.3d 1274; 2006 U.S. App. LEXIS 8791

April 10, 2006, Filed

SUBSEQUENT HISTORY: US Supreme Court certiorari denied by Walton v. Tesuque Pueblo, 2006 U.S. LEXIS 8634 (U.S., Nov. 13, 2006)

PRIOR HISTORY: [*1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D. Ct. No. CIV-04-236 RB/WDS).

COUNSEL: Thomas C. Bird (David W. Peterson and Melanie L. Frassanito, with him on the briefs), Keleher & McLeod, P.A., Albuquerque, New Mexico, appearing for Appellant/Cross-Appellee.Eric Treisman, Santa Fe, New Mexico, appearing for Appellee/Cross-Appellant.

Wayne H. Bladh, Teresa Leger de Fernandez, Noelle Graney, Nordhaus Law Firm, LLP, Santa Fe, New Mexico, for Amicus Curiae Pueblos of Laguna, Santa Ana, and Santo Domingo, and for the Jicarilla Apache Nation.Louis Denetsosie, Attorney General, Navajo Nation Department of Justice, Window Rock, Arizona, for Amicus Curiae Navajo Nation.Peter Ortego, General Counsel, Ute Mountain Ute Tribe, Towaoc, Colorado, Amicus Curiae for the Ute Mountain Ute Tribe.Ann Berkley Rodgers and Peter C. Chestnut, Chestnut Law Offices, Albuquerque, New Mexico, Amicus Curiae for the Pueblos of Acoma and Nambe.C. Bryant Rogers and David R. Yepa, Roth Yanamberg Rogers Ortiz Fairbanks & Yepa, LLP, Santa Fe, New Mexico, Amicus Curiae for the Pueblos of Cochiti and Jemez.Reid Peyton Chambers, Sonosky, Chambers, Sachse, [*2] Endreson & Mielke, LLP, Washington, D.C., and David C. Mielke, Sonosky, Chambers, Sachse, Endreson & Mielke, LLP, Albuquerque, New Mexico, Amicus Curiae for the Pueblos of Isleta, Sandia, and Zia.Richard W. Hughes, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenue, LLP, Santa Fe, New Mexico, Amicus Curiae for the Pueblo of Santa Clara.Lee Bergen, Bergen Law Offices, LCC, Amicus Curiae for the Pueblo of San Juan.

JUDGES: Before TACHA, Chief Circuit Judge, EBEL, Circuit Judge, and CASSELL, District Judge. n11The Honorable Paul G. Cassell, District Judge of the United States District Court for the District of Utah, sitting by designation.

OPINION BY: TACHA

OPINION TACHA, Chief Circuit Judge.

Plaintiff-Appellee Don Walton brought this suit against Defendants-Appellants Tesuque Pueblo and various tribal officials (collectively, "tribal defendants" or "defendants") alleging violations of state and federal law after the tribe revoked his flea market vendor's permit.

The tribal defendants moved to dismiss for lack of jurisdiction, claiming sovereign immunity barred the action.

The District Court denied the motion in part, which the defendants now appeal, [*3] and granted the motion in part, which Mr. Walton cross-appeals.

We have jurisdiction under 28 U.S.C. § 1291 over the denial of a motion to dismiss based on sovereign immunity. See Decker v. IHC Hosp., Inc., 982 F.2d 433, 435 (10th Cir. 1992). We conclude the District Court erred in determining that it had jurisdiction under Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), and therefore, we AFFIRM in part and REVERSE in part.

I. BACKGROUND

The Tesuque Pueblo issued Mr. Walton, a non-Indian, a vendor's permit to sell products at the Tesuque Pueblo Flea Market. After Mr. Walton had an altercation with another vendor, however, Tesuque officials revoked his permit. Mr. Walton then filed suit against the tribal defendants in Tesuque Pueblo Tribal Court. The defendants moved to dismiss for lack of subject matter jurisdiction based on sovereign immunity. Mr. Walton filed a response and the Tribal Court conducted a hearing on the matter. At the hearing, where Mr. Walton appeared and was represented by counsel, the Tribal Court ordered briefing on the issue of immunity and set a date for oral argument. [*4] After oral argument--again, Mr. Walton appeared and was represented by counsel--the Tribal Court granted the motion and dismissed the entire action as barred by sovereign immunity.

Mr. Walton appealed the decision to the Pueblo of Tesuque Court of Appeals, which affirmed the Tribal Court.

Mr. Walton then commenced this action in the District of New Mexico.

His complaint sought habeas corpus relief and damages for deprivation of liberty and property without due process of law in violation of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303 ("ICRA"), as well as damages for breach of contract and various torts. Again, the tribal defendants moved to dismiss for lack of jurisdiction based on sovereign immunity.

The District Court granted the motion with respect to Mr. Walton's petition for a writ of habeas corpus but it denied the motion as to the remaining non-habeas claims. It reasoned that although Indian tribes are generally entitled to sovereign immunity under the Supreme Court's decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978), Mr. Walton's lawsuit fell within the narrow exception to [*5] Santa Clara Pueblo established by this Court in Dry Creek, 623 F.2d 682.

This appeal followed.

II. DISCUSSION

We review a question of tribal sovereign immunity de novo. Berrey v. Asarco, Inc., 439 F.3d 636, 643 (10th Cir. 2006). Indian tribes possess the same immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo, 436 U.S. at 58. As with other forms of sovereign immunity, tribal immunity "is subject to the superior and plenary control of Congress." Id. Accordingly, absent explicit waiver of immunity or express authorization by Congress, federal courts do not have jurisdiction to entertain suits against an Indian tribe. Id. at 58-59; Ordinance 59 Ass'n v. United States Dep't of the Interior Sec'y, 163 F.3d 1150, 1153 (10th Cir. 1998).

Mr. Walton argues that the District Court has jurisdiction pursuant to the ICRA, 25 U.S.C. §§ 1301-1303, and pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n ("ISDEAA"). We address each statute [*6] in turn.

A. The Indian Civil Rights Act

In Santa Clara Pueblo, the Supreme Court held that the ICRA does not authorize the maintenance of suits against a tribe nor does it constitute a waiver of sovereignty. See 436 U.S. at 59. Further, the ICRA does not create a private cause of action against a tribal official. Id. at 72. The only exception is that federal courts do have jurisdiction under the ICRA over habeas proceedings. Id. at 58, 70 (citing 25 U.S.C. § 1303) (stating that "the only remedial provision expressly supplied by Congress" is the writ of habeas corpus).

These holdings appear to conclusively resolve the jurisdictional issue in this case--at least with respect to Mr. Walton's non-habeas claims--but two years after Santa Clara Pueblo, in Dry Creek, this Court recognized a limited exception to the rule in Santa Clara Pueblo. In Dry Creek, the plaintiffs, non-Indians, sought to build guest accommodations on a tract of land that they owned but that was located within an Arapahoe and Shoshone reservation. 623 F.2d at 684.

After obtaining the approval of the [*7] reservation's superintendent, the plaintiffs began construction on the Dry Creek Lodge. Id. Once the lodge was completed, however, the two tribes' Joint Business Council permitted an Indian family to barricade a road on the family's property that had been the sole means of access to the lodge. Id. Dry Creek Lodge and the other plaintiffs sought relief with the tribal court, but the tribal judge refused to hear their case, stating that "he could not incur the displeasure of the Council" and that he would not do anything without the Council's permission. Id.

The plaintiffs then sought relief in state court and the case was removed to federal court. Id. The tribes moved to dismiss the case as barred by sovereign immunity, but we permitted the suit to go forward in federal district court, reasoning that "there has to be a forum where the dispute can be settled." Id. at 685.

Dry Creek has come to stand for the proposition that federal courts have jurisdiction to hear a suit against an Indian tribe under 25 U.S.C. § 1302, notwithstanding Santa Clara Pueblo, when three circumstances are present: (1) the dispute involves a non-Indian; [*8] (2) the dispute does not involve internal tribal affairs; and (3) there is no tribal forum to hear the dispute. See Ordinance 59 Ass'n, 163 F.3d at 1156.

Our jurisprudence in this field is circumspect, and we have emphasized the need to construe the Dry Creek exception narrowly in order to prevent a conflict with Santa Clara. See id. at 1157; White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984). Indeed, we have stated that the rule has "minimal precedential value" and in the twenty-six years since Dry Creek, with the exception of Dry Creek itself, we have never found the rule to apply. Ordinance 59 Ass'n, 163 F.3d at 1158-59 (citing Bank of Okla. v. Muscogee (Creek) Nation, 972 F.2d 1166, 1170 (10th Cir. 1992)); Olguin v. Lucero, 87 F.3d 401, 404 (10th Cir. 1996); Nero v. Cherokee Nat. of Okla., 892 F.2d 1457, 1460 (10th Cir. 1989); Enterprise Mgmt. Consultants, Inc. v. United States, 883 F.2d 890, 892 (10th Cir. 1989); White, 728 F.2d at 1309; Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1346 (10th Cir. 1982); [*9] Ramey Const. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 319 n.4 (10th Cir. 1982)).

Here, too, we have no difficulty concluding that the Dry Creek exception is inapplicable. The District Court held that Mr. Walton, like the plaintiffs in Dry Creek, had no tribal forum to settle the dispute. To the contrary, Mr. Walton successfully availed himself of a tribal forum, although the decision of that tribunal was ultimately unfavorable to him. A tribal court's dismissal of a suit as barred by sovereign immunity is simply not the same thing as having no tribal forum to hear the dispute, see Olguin, 87 F.3d at 404 (holding that the third prong of the Dry Creek exception is not met when a tribal court has expressly agreed to hear the dispute), and such a ruling would come into direct conflict with Santa Clara Pueblo.

As such, the District Court erred in concluding it had jurisdiction pursuant to the Dry Creek exception over Mr. Walton's non-habeas claims against either the Tesuque Pueblo or its individual officers.As noted, however, federal courts do have jurisdiction under the ICRA to entertain habeas proceedings. [*10] Specifically, 25 U.S.C. § 1303 makes available to any person "the privilege of the writ of habeas corpus . . ., in a court of the United States, to test the legality of his detention by order of an Indian tribe."

Nevertheless, the District Court correctly dismissed Mr. Walton's habeas petition because Mr. Walton has not shown a sufficient restraint on liberty to trigger the application of § 1303. n1 It is clear to us that the expulsion of Mr. Walton, a non-Indian, from the Tesuque Pueblo Flea Market does not constitute a "detention" as that term is used in § 1303. n2 Cf. Shenandoah v. United States Dept. of the Interior, 159 F.3d 708 (2d Cir. 1998) (suspended or terminated employment and health insurance, as well lost distributions and prohibitions on speech, are insufficient restraints on liberty to constitute a "detention" under § 1303 and therefore confer jurisdiction).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

1The "detention" language in § 1303 is analogous to the "in custody" requirement contained in the federal habeas statute. Dry v. CFR Court of Indian Offenses for the Choctaw Nation, 168 F.3d 1207, 1208 n.1 (10th Cir. 1999). [*11] 2In an affidavit and in his complaint, Mr. Walton also claims that he was banished from the Pueblo itself in July 2003, and that such banishment constitutes a sufficient restriction on liberty to trigger the application of § 1303. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 895 (2d Cir. 1996) (tribe member's banishment from tribal lands sufficient to confer jurisdiction under § 1303). In December 2003, however, the Governor of the Pueblo wrote Mr. Walton a letter clarifying that Mr. Walton had not been banished and was free to enter and traverse the Pueblo. Nothing in the record indicates that Mr. Walton has not been permitted to gain entry to the Pueblo since December 2003. Therefore, we need not determine whether the banishment of a non-Indian from tribal lands constitutes a detention under § 1303 because even assuming it does, Mr. Walton has not shown that he is currently prohibited from entering the Pueblo. See Maleng v. Cook, 490 U.S. 488, 491-92, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989) (habeas petitioner must suffer from "present restraint"); Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004) (under Maleng, "'in custody'" language of § 2254 . . . requires habeas petitioners to be 'in custody' under the conviction or sentence under attack when they file the petition."); see also Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004) ("Where a party attacks the factual basis for subject matter jurisdiction, the court does not presume the truthfulness of factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts.").

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[*12] B. The Indian Self-Determination and Education Assistance ActMr. Walton also argues that federal jurisdiction exists under the ISDEAA, 25 U.S.C. § 450. The ISDEAA was enacted to promote tribal autonomy by permitting tribes to operate programs previously operated by the United States. See Cherokee Nation of Okla. v. Thompson, 311 F.3d 1054, 1055 (10th Cir. 2002), rev'd on other grounds, 543 U.S. 631, 125 S. Ct. 1172, 161 L. Ed. 2d 66 (2005). Mr. Walton relies on § 450f(c) as a source of jurisdiction over his negligence claims. We disagree. Section 450f(c)(1) requires the government to obtain liability insurance for tribes carrying out self-determination contracts n3 entered into under the ISDEAA. In exchange for insurance coverage, the tribe agrees to waive its sovereign immunity with respect to suits arising out of the tribe's performance of its contractual duties. 25 U.S.C. § 450f(c)(3). In this case, however, Mr. Walton is not a party to a self-determination contract and his claims do not arise from any such contract. See Demontiney v. U.S. Dept. of the Interior, 255 F.3d 801, 813 (9th Cir. 2001)

[*13] (no waiver of immunity when plaintiff was not a party to a self-determination contract with tribe). Accordingly, the ISDEAA is not a source of jurisdiction.

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3 A self-determination contract is defined as:[A] contract (or grant or cooperative agreement utilized under section 450e-1 of this title) entered into under part A of this subchapter between a tribal organization and the appropriate Secretary for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law . . . .25 U.S.C. § 450b(j).

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III. CONCLUSION

Because Mr. Walton has not demonstrated the unavailability of a tribal forum to hear his dispute regarding the revocation of his vendor's permit, the Dry Creek exception to Santa Clara Pueblo is inapplicable.

We further conclude that the ISDEAA does not confer jurisdiction in this case. Accordingly, we REVERSE the District Court's denial of the tribal defendants' [*14] motion to dismiss for lack of subject matter jurisdiction as to all non-habeas claims.

We AFFIRM the District Court's dismissal of Mr. Walton's petition for a writ of habeas corpus because banishment from the Tesuque Pueblo Flea Market is not a sufficient restraint on liberty to confer jurisdiction under § 1303.

Finally, all outstanding motions are DENIED.

The case is DISMISSED for lack of jurisdiction.

Tribal Self Governance

TRIBAL SELF GOVERNANCE:

Tribal Self Governance rules are covered under CFR Title 25 Chapter 6.

Tribes must meet the following criteria for self governance:

Be a federally recognized tribe as defined in Public Law 93-638;

Tribal governing body with an official action, presents a written formal request to enter negotiations with the Department of Interior under the Tribal Self-Governance Act authority;

Demonstrate financial stability and financial management capability by furnishing organization-wide single audit reports for the previous three years. These audits must not contain material audit exceptions;

A final planning report must be submitted which demonstrates that the tribe has conducted-- (1) Legal and budgetary research; and (2) Internal tribal government and organizational planning;

Tribes may submit their applications at any time. The application should state which year the tribe desires to enter negotiations.

Upon receipt of an application, it is reviewed and determined whether or not it is complete.

Upon determination that it is complete, the name of the tribe or consortium will be included in the official applicant pool. Incomplete submissions will be returned with the deficiencies identified. Revised applications may be resubmitted for consideration at any time.

A master list of ranking, based on receipt of the complete application, is prepared and updated from year to year. When two or more applications are received at the same time, the following factors are used to determine priority:

Designations by Congress in a report that states a particular tribe should participate;

Documentation of Office of Self Governance sanctioning of the tribe's self-governance planning and subsequent evidence of actual planning by the tribe;

Submission of a completed planning or negotiation grant application in the previous year;
A signed agreement pursuant to the Indian Health Service self-governance project;

Receipt of a planning grant awarded by the Indian Health Service.

Applications will be accepted on an on-going basis. (b) Applications may be mailed or hand-delivered. (d) Applications must be sent to: Director, Office of Self Governance, Department of the Interior, 1849 C Street, NW., MIB RM/MS- 2548, Washington, DC 20240.

Grants are available to help meet the costs of planning and negotiations. There are three types of grants: Negotiation grants for tribes selected from the applicant pool, Planning grants for tribes requiring advance funding to meet the planning phase requirement; and Financial assistance for tribes to plan for negotiating for non-BIA programs, services, functions and activities. Grants are only available depending on funding. In many instances tribe will have to use their own funding sources to meet the costs of attaining self governance status.

Funding for grants are given the following priorities: first priority to those that have been selected from the applicant pool to negotiate an annual funding agreement; second priority to tribes that require advance funds to meet the planning requirement for entry into the self-governance program, third priority to tribes that require negotiation/planning funds to negotiate for DOI non-BIA programs. The number and size of grants awarded each year will depend on Congressional appropriations and tribal interest. Each year, a notice is published in the Federal Register which provides relevant details about the application process, including: The funds available, timeframes, and requirements for negotiation and advance planning.

The tribe must submit a letter affirming its readiness to negotiate and formally request a negotiation grant to prepare for and negotiate a self-governance agreement. These grants are not competitive.

An application is required for planning grants. Within 30 days of the deadline for submitting applications we will notify the tribe by letter whether it has been selected to receive an advance planning grant.

An application is required for grants of planning and negotiations of non-BIA programs. The award of such grants is discretionary.

More information on funding under self governance:
http://www.access.gpo.gov/nara/cfr/waisidx_07/25cfr1000_07.html

Federal Code of Regulations pertaining to Indians:
http://www.access.gpo.gov/nara/cfr/waisidx_07/25cfrv1_07.html#1000

Treaties remain Whimsical Political items

MINNESOTA v. MILLE LACS BAND OF CHIPPEWA INDIANS

The US Supreme Court case of Minnesota v Mille Lacs Band of Chippewa Indians, No. 97-1337, decided March 24, 1999, is an interpretation of Native American current rights based on historical treaties. This case is a modern opinion upholding treaty rights from the early 1800s.

Full decision at: http://supct.law.cornell.edu/supct/html/97-1337.ZS.html

The State of Minnesota argued that the State retained authority over the Chippewa land ceded in an earlier treaty between the Chippewa and the US Government. At issue was whether or not the Chippewa Indians could still hunt and fish on land which they ceded to the US government in an earlier treaty.

The court opinion delivered by Justice O'Connor, held that the Chippewa Indians retained these rights guaranteed to them by the 1837 Treaty. Pp. 15—35.

In 1990 the Mille Lacs Band of Chippewa Indians instituted suit in Federal District Court against the State of Minnesota, among others, seeking declaratory relief among other things, and an injunction against the State of Minnesota to prevent the state from interfering with their hunting and fishing rights granted in the 1837 Treaty. This gives tribes a viable venue for disputes with the States when they infringe on treaty rights.

Justice O'Connor goes into a lengthy discussion of the treaty language which states that the Chippewa Indians retained the right to hunt and fish on the ceded land. Later treaties left removal of the Chippewa Indians to the US President, with congressional approval or Constitutional authorization. Interesting in this opinion is the historical motivation for removal of the Indians from Wisconsin, that is the State of Minnesota felt the Indians were receiving annuity payments no part of which were going to benefit the state of Minnesota, therefore removal to the state of Minnesota would benefit the state. To further this aim, the Chippewas were told that their annuity payments would no longer be sent to their ceded land in Wisconsin but they would be sent to a location in the Minnesota Territory. Unfortunately many Chippewas died of measles and dysentery prior to the disbursement of the annuity payments. This experience forced the government to rethink it's position on removal finding it to be disastrous for the Indians.

The court further observed that in the treaty there was no inclusion or exclusion language of these hunting and fishing rights. The court then decided that absent express language including the relinquishment of these rights, they were retained by the tribe.

The court however left open the question as to whether or not the President may, now or in the future, revoke these rights. Their only decision was that the Executive order of 1850 was not severable from the invalid removal order and thus the hunting and fishing rights were retained by the Chippewa Indians to the ceded land. This is reminiscent of the Cherokee case in which the Supreme Court ruled in favor of the Cherokee Nation and invalidated a removal order only to have President Andrew Jackson commence removal anyway.

This decision is interesting in that it seems to throw the treaty rights of Native American into the political arena. Presidents might be more easily swayed into upholding treaty rights if Native American votes were to support their candidacy.

Both Justice Thomas and the Chief Justice Rehnquist filed dissents to the majority opinion.

The Chief Justice equates the payment of money to the relinquishment of land as also including any hunting and fishing rights without an express provision in the treaty to do so. He also gives Executive Orders an implied consent of Congress giving them full legal effect when made without any necessary approval process by Congress. Justice O'Connor appears to have decided this case based on contract theories including severability of provisions within a contract, whereas the Chief Justice looks to a unilateral decision by one branch of government to invalidate an agreement by two parties, the Chippewa Indians and the US government, presumably Congress was involved in the making of this treaty as well.

Justice Rehnquist further finds that the language in the treaty was broad enough to encompass all rights including hunting and fishing rights, but he fails to recognize the meeting of the minds between the two parties at the time of making the Treaty. Whether or not the Chippewa Indians understood the language to include hunting and fishing rights and such lack of understanding could itself create an ambiguity, resolution of which would be in the Indian's favor, that is, that they retained the hunting and fishing rights of the ceded land. Although the Chief Justice languishes on the 103 year old precedence of this court, he does not expound on the wisdom or inhumanity of such precedence, opinions clearly decided in an extremely biased environment, which all can see was clearly against Native Americans.

Justice Thomas' dissent is of equal interest, considering he himself is a minority. His major concern seems to be with whether or not the principles of Federalism have been followed. Interesting is his argument that the 1837 treaty did not make any provision for future state regulation, perhaps an example of the lack of foresight on the government officials and their Indian policies. Native American relations in modern America involve both areas of state rights and federal rights, it is after all the federal government that governs tribes but by necessity the tribes and tribal lands are within the state boundaries creating an overlapping of both state and federal into tribal sovereignty.

Further Justice Thomas appears to set up the next case in this line as leaving open for future decision the issue of the states authority to regulate Indians off reservation activity. The states regulation here was over environmental concerns which they believed the Indian hunting and fishing interfered with, however, of all people Native Americans are the most environmentally conscious. I suspect the concern had more to do with the fact that Native Americans enjoyed a right which the citizens of the state of Minnesota did not.

This might bring to mind the question of reciprocity between sovereigns, will Native American Tribes retain jurisdiction over non Indians on Tribal Land.

Treaties in Indian Country

INDIAN COUNTRY

Indians, Native Americans we prefer to be called today, were on the North American Continent prior to the 1700s. Native Tribes believe they have always been here. There are several other theories as to how they came here. One theory supposes that they came across the Bering Strait into Alaska. Another theory states they came from South America through Mexico and into the Great Lakes Basin. Today, DNA seems to point to the origins as coming via the Bering STraits of Alaska, from there, they scattered to New York where the Iroquois are found. The Iroquois Nation was composed of The Five Nations, including the Cherokee Nation. All originally located on the Eastern Coast of the North American Continent until the great removals of the early 1800’s. The Iroquois Nation is believed to have had a constitution as early as the 1500s.

Natives first came into contact with the Europeans, with the burgeoning European presence after the landing of De Soto in Haiti believing it to be the New World. It was here that Natives were first enslaved by Europeans and sold for labor in other parts of the world. Indian traders, as early as 1700s, had been trading with the Native American Nations, bringing with them goods to trade from the European world. In some instances treaties covered protection for the traders and Native American transactions. Native American’s first legal contact with the Europeans came in the form of the treaties made between the early American Frontiersmen and the Native Americans. Treaties were used to resolve conflicts between the Native Americans and early settlers, secure and cede land rights, regulate trade and to secure their alliance in the war for American Independence.

BACKDROP FOR FUTURE CONFLICT

Treaties with the Native American Nations came as early as 1778 with the Delaware. 1782 with the Chickasaw, 1784 with the Six Nations, 1785 with the Wyandote and Cherokee, 1786 with the Choctaw, Chickasaw and Shawnee, 1790 with the Creeks, 1794 with the Oneida, 1832 with the Potawatami, 1852 with the Apache, 1853 with the Comanche, Kiowa and Apache, 1865 with the Cheyenne and Arapaho.

The Treat of 1778 with the Delaware was made out of necessity as the struggle for independence from England began in the early 1770’s. The colonists forged an alliance with them in order for the colonial forces to be able to pass through Native American land undeterred and for Native Americans to provide supplies to the troops. In return the colonists were to build a fort for the protection of the Delaware, while their young warriors were in battle. These forts were built within the Native American Nations as well. The treaty also called for trials for infractions by either side. Any captured enemies would be turned over to the colonial troops. The new United States would also provide any necessary supplies to the Delaware for their war with the British. This treaty also called the Delaware Nation a state and allowed representation in Congress.

These Treaties assured Native American Tribes that their land would not be taken from them. History would prove this as untrue as early as the 1800s when Native Americans were removed from their homelands in the East and resettled in the West. In some cases, the nomadic tribes such as the Sioux and Apache who had traveled the vast expanses of the Midwest and Southwest were now surrounded by the boarders of a specific area termed by the whites as “reservations”. Most tribal members by law could not go beyond the reservation boundaries.

The U.S. made a similar treaty with the Cherokee Nation in 1785. Both sides were to restore all prisoners, and the Cherokees acknowledge the protection of the United States. The boundaries of the Cherokee Nation were described as beginning at the mouth of the Duck River in Tennessee covering a land area that extended from North Carolina to South Carolina. No citizen of the United States was to settle on Native American lands. But colonists began to settle the Tennessee area around the Cumberland river as early as 1791 when North Carolina gave it's Revolutionary Soldiers land grants in the Tennessee Cumberland River area, now known as Davidson County Tennessee. In the early 1800s the U.S. Government began removal of the Native American Nations from the east to the west. The Delaware, Cherokee, Choctaw, Chickasaw, Creek and some Seminole were removed to the northeastern portion of the Indian Territory now Oklahoma. Each Tribe had their own “Trail of Tears” as Native Americans have termed it. The removal also saw an end to some of the Native American Nations owning land as a whole for the tribe when the U.S. began giving land allotments to individuals.

This treaty also called for the Cherokee Nation to deliver up any criminals to the U.S. authorities. Citizens of the U.S. committing any crimes against the Native Americans were to be punished. Retaliation was prohibited, certainly due to the Cherokee ancient revenge laws. The United States was to regulate trade, and Congress was given the sole and exclusive right of regulating and managing the Cherokee affairs in a manner they thought proper. This then was the beginning of the Bureau of Indian Affairs. Prior to this, there were Indian Agents within each Native American Nation. Today those Indian agencies have turned into a huge bureaucracy called the Bureau of Indian Affairs and are responsible for regulating these ancient treaties and Indian Affairs. The agent acted as a liaison between the Native American Nations and the U.S. Government or authorities. Traders were given liberty to trade with and go to any of the Cherokee tribes and towns and were protected by the U.S. Cherokees were to warn of any potential trouble against the peace. The Cherokee Nation was supposed to have full confidence in the justice of the United States, respecting their interests and they *shall* have the right to send a deputy of their choice, whenever they thought fit, to Congress. This treaty became known as the Hopewell Treaty.

Treaties were generally signed by the head Chiefs of each tribe and by a U.S. government representative usually consisting of military personnel. They also needed ratification or approval by Congress. In 1789, the United States Congress passed several statutes to defray the costs of commissioners appointed to make treaties with the Native Americans. In 1790 another act was passed to provide for the holding of treaty or treaties with certain Native American Tribes. From 1790 to 1889 thirty-five statutes were passed relating to holding treaties, commissioners for and their expenses incurred while dealing with the Native American Tribes.

UNRESOLVED AND CONTINUING CONFLICT

Many of these treaties became the backdrops for future conflict. The treaty of 1868, known as the Fort Laramie Treaty, between the U.S. and the Sioux Nation became the focal point for the conflict at Wounded Knee in 1973 on the Pine Ridge Native American Land. This conflict has yet to be resolved and as late as June of 1999 the Sioux Nation, the state of South Dakota and the U.S. government are still trying to settle this matter.

The Sioux contend that the Treaty of 1877 which took away the Black Hills, because gold was discovered was invalid due to the requirement that the Treaty of 1868 could not be changed without a 3/4 vote by all the adult males of the tribe. The Dawes Allotment Act of 1877-79 greatly reduced the 160 acres, which individual Native Americans could acquire, by opening up the land for sale to white ranchers. Many of these land allotments were based on the Homestead Act, which recently has expired. The Treaty again was changed without a 3/4 vote by all the adult males of the tribe. Finally in 1934 Congress passed the Indian Reorganization Act which allowed the U.S. Government to set up it's own form of government on Native American lands i.e. the Bureau of Indian Affairs.

Russell Banks and Dennis Means were tried for the murder of a federal agent during an effort by modern Native American activists to uphold the original Fort Laramie Treaty of 1868, Leonard Peltier remains in a Federal Prison as a result of this conflict. Native Americans refer to this as the Trail of Broken Treaties.

Native Americans at Pine Ridge remain still without many services and unemployment remains high, but this struggle has helped to bring the Native American policy of the U.S. to the forefront.

In all probability the language difference also plays an important part in interrupting the treaties. Most Native American’s saw these as binding agreements between sovereign nations, the U.S. on the one hand and the Tribes on the other. However, in many instances public laws or executive orders have been issued which have in essence nullified these agreements without the consent or knowledge of the Tribal parties of the original treaties. Native American’s see sovereignty as the focal point, with the U.S. giving them full rights to govern and handle their own affairs. The U.S. on the other hand sees Native Nations as conquered Nations under the rule of their agency the Bureau of Indian Affairs.

In the 1950s the U.S. government pursuant to numerous public laws began a policy of assimilation of Native Americans into main stream America. To Native Americans this meant a loss of their cultural ties, resulting in the conflict over the original treaties.

CONCLUSION

These are just some of the issues that face Native Americans today as the result of Treaties between Native American Tribes and the U.S. government.

Other issues include, Bureau of Indian Affairs governance, self-governance, adoption of Native American children out of their cultural setting, uninvestigated and unresolved murders of Native Americans, religious freedom, education, health care, land disputes, treaty fishing rights, Native American authenticated crafts and grave desecration. Native American Nations are moving slowly towards self-governance and Tribes are struggling for sovereign recognition by Congress to enable them to manage and handle their own affairs. Native Americans prefer self-reliance to government assistance.

To Native Americans the struggle continues.

The State of Indian Affairs in California

Disenrolled Tribal Members, Incl. Pechanga oppose Romero Bill

Dis-enrolled tribal members oppose Romero bill

Capitol Weekly By Malcolm Maclachlan

Dis-enrolled tribal members are raising concerns that a bill from Senator Gloria Romero, D-Los Angeles, could result in them being kicked off of reservations.

Tribes say the bill, SB 331, is needed to help them enforce their property rights and tribal sovereignty. Such protections are particularly needed in rural areas where non-tribal law-enforcement responses can be slow, supporters say.

Titled "Unlawful entry: tribal land," the bill would create a new infraction against non tribal members entering "Indian lands" without permission from the tribe. Romero wrote the bill on behalf of the Barona Band of Mission Indians, which operates a casino and resort northeast of San Diego. Tribes could issue a fine of up to $250 for a first offense and $500 for a second offense. A representative from the Barona Tribe did not return calls seeking comment by press time.

Romero's communications director, Russell Lopez, said that her office is in talks with several interested parties about the bill. He said this includes at least one utility that has concerns about their ability to perform maintenance on Indian lands. Romero is not ready to talk yet about any possible amendments, he added.

However, many of those on tribal lands are recently dis-enrolled tribal members, according to John Gomez Jr., a dis-enrolled member of the Pechanga Band of LuiseƱo Indians. He fears SB 331 will become just another tool for Indians to use against other Indians--and could result in hundreds of dis-enrolled members being evicted their own property if it lies on Indian lands.

"It could be used to fine people if they visit their own homes or families," Gomez said.

Gomez said he is one of about 400 people who have been dis-enrolled from the Pechanga Tribe since 2004. The dis-enrollments happened in two groups, just before tribal elections in 2004 and 2006. They reflect lingering animosities between families and individuals that have been exacerbated by the flood of gaming money, he claimed, raising the stakes in longstanding power struggles. The number of tribal dis-enrollments across the state has increased greatly since the advent of tribal casinos, he said.

"Is it a coincidence?" Gomez said. "I don't think so."

Representatives of the Pechanga tribe dismiss these claims, saying the members were only dis-enrolled after a years-long process that found they did not have legitimate tribal lineages. During the evaluation period, they said, these members received tribal benefits.

In January, the Pechanga Tribal Council sent a letter to every member of the Legislature seeking to refute "sensationalist claims" made by dis-enrolled members. The letter claims that since the tribes financial fortunes started to rise in the mid-1990s, they were inundated by claims from thousands of people who were not legitimate tribal members. It also cited a 2005 California Appeals Court case in which the court declined to get involved in determinations over "Who is a Pechanga?"

Gomez and other dis-enrolled Pechangas have sent letters to U.S. Senator Dianne Feinstein, the Bureau of Indians Affairs and others asking them to look into the dis-enrollments. This includes a call for the BIA not to recognize the Pechanga tribal elections.

They also conducted an unsuccessful letter-writing campaign aimed at sinking the amended Pechanga gaming compact. That compact--SB 903 by Senator Alex Padilla, D-Los Angeles--passed out of the Senate on a 23-8 vote in April and now awaits a hearing in the Assembly.

Whether they have increased or not, tribal dis-enrollments have been in the news lately. In March, the Jamul Indian band bulldozed the homes of two non-tribal members that lay on tribal land--and sat in the way of a casino the tribe is building. The Picayune Rancheria of Chukchansi Indians dis-enrolled an undisclosed number of members in November.

In 2003, the Enterprise Rancheria kicked out 72 of its over 200 members after a dispute. (that's 1/3 of the population of their nation. EQUAL to kicking out 100 MILLION Americans! )One of these former members, Robert Edwards, wrote a letter to Romero this week opposing SB 331 because it "bestows authority to Indian Tribes to engage in the victimization of Indians." The letter warned that the bill could lead to some dis-enrolled members being made homeless. Edwards is now the chairman of an opposition group called Indians of Enterprise No. 1.

Edwards said that over 3,000 tribal members around the state have been dis-enrolled since 1999. Meanwhile, tribes also have refused to let in many legitimate tribal descendants who tried to join tribes in order to keep them from sharing in gaming money. He has been calling for the Legislature to include references to the Indian Civil Rights Act into the amended gaming compacts, which he said would aid dis-enrolled Indians to suing in state and federal court.

Meanwhile, gaming watchdog Cheryl Schmit, director of Stand Up for California, sent a letter to Romero last week questioning the constitutionality of SB 331 as it currently is written. The bill lacks an adequate definition of "Indian lands," she argued, and conflicts with federal law on the matter. Unless the bill is amended to comply with federal standards, she said, any tickets given to trespassers under a resulting law could not be enforced.

"If I got a citation on tribal lands, I could safely wad it up and throw it away," Schmit said.

"Indian lands" now cover a patchwork of reservations, private property and new lands being purchased by tribes. For instance, she said, the Morongo Band of Mission Indians has purchased 1,100 acres in 11 different deals since 2000. Schmit said she has been seeking legal opinions on the bill. The California State Sheriffs' Association has taken a neutral position, she said, while the California District Attorneys Association will evaluate the bill at their mid-July meeting. The San Diego County district attorney and San Diego County Sheriffs Department support SB 331.

Other states also are struggling with tribal-lands issues. Most notably is New York, where Governor Eliot Spitzer is trying to collect $200 million in cigarette and gasoline taxes he said are owed by tribes in the state. Some in the New York Legislature have estimated the state loses over $400 million in tobacco taxes not collected on reservations each year.

In April, leaders of the Seneca Nation retaliated by beginning to count cars on the New York State Thruway that runs through the Cattaraugus Indian Reservation south of Buffalo. They have said they intend to charge the state government $1 per car for the use of their land.

Malcolm Maclachlan is a Capitol Weekly staff reporter.

(click on the title above to search the California Legislature by this bill number)

More on the Watson bill

She also cites a Court of Claims case dated 1895, Whitmire, Trustee for the Cherokee Freedmen vs Cherokee Nation, 30 CT CL. 138, 180 (CT Cl. 1895) which again is an old case that stated the Freedmen were entitled to share the tribe's land sale proceeds and the Cherokee Nation sovereignty could not be exercised in a manner that breached this treaty obligation. However, this Whitmire case which is a court of claims case, did in fact limit Freedmen rights under the 1866 Treaty.

Again she cites a 1906 Supreme Court cases noting the Freedmen were citizens of the Cherokee Nation and entitled to the same property rights as other Cherokee Nation members under the 1866 Treaty (Red Bird vs United States, 203 U.S. 76, 84)

And finally the December 19, 2006 ruling in Vann v Kempthorne which found there was a Cherokee by Blood Dawes Roll and a Freedmen Dawes Roll.

She then goes into how the Cherokee Nation voted on and passed a constitutional amendment removing federal approval of it's Constitution in May of 2003. (and now in June of 2007, in which the Freedmen did vote) Although she refers to this *unapproved Constitutional Amendment*, she does not mention that the BIA literally sat in this amendment for over 3 years and not until the current Federal Case, in which the judge ruled that the amendment not acted on by the BIA did not mean they had approved the amendment, at which point the BIA informed the Cherokee Nation that the amendment was not approved.

The Cherokee Nation labors under a failed BIA which has inadequately and incompetently exercised its authority to the detriment of the Cherokee Nation.

All this she claims is to the detriment of the U.S. and the Cherokee Nation relationship and calls for termination of U.S. relations with the Cherokee Nation.

The June 23 vote was held according to the rules of the Cherokee Nation without consideration of the May 2003 Amendment.

She also cites a Principal Chief's Act - which I'm not familiar with so will have to check on that.

She also calls for *reports from various agencies on all Federal programs that provide financial assistance and other services to the Cherokee Nation* and the *Status Reports* by apparently the Secretary of Interior.

The Cobell, Individual Indian Trust account case has been going on for well over 10 years with the Interior Department, it still isn't settled and the Interior Department has yet to make a full accounting of those trust accounts.

The Watson bill goes on to request public reports from all the tribes with Freedmen, Cherokee, Choctaw, Chickasaw, Muskogee (Creek) and Seminole Nations of Oklahoma. No evidence the other tribes are not in compliance but this appears to be more of a blanket retaliatory knee jerk reaction to force the Cherokee Nation to comply.

And then the bill states that both houses of congress must approve by vote the Secretaries certification that the Cherokee Nation is in full compliance. So where was she when the plaintiff's in Cobell needed this kind of help?

Then on page 12 of her bill she requests suspension of the right to conduct gaming operations. The growing source of revenue among all Indian Tribes.

Then in her definitions she states: Cherokee Freedmen, Freedmen and Black Cherokees refer to individuals who can trace their ancestry to individuals listed on the 1906 Dawes Commission Roles for the Cherokee Freedmen but Other Freeman Indians refers to those who can trace their ancestry to the 1906 Dawes Commission Rolls who are members of the other tribes.

I suspect the term Cherokee Freedmen, the Cherokee in that phrase was merely to indicate which Tribe they were to be associated with, not that they had a Cherokee Ancestor; this is indicated by the term Cherokee Delaware, since we all know the Delaware are a separate tribe of Indians, which the BIA has refused to recognize since the 1830s as well. Where has she been when they were looking for separate recognition?

There is no mention of recent court cases, where Indian Tribes membership rights have been considered the sovereign right of the Nation to determine. In fact there are several Tribes within Congresswoman Watson's own state that have indeed exercised this right. Some disenrolled members have pursued litigation in the courts and in each case the court has granted dismissal as against a sovereign nation. If Congresswoman Watson were indeed concerned about the Indian Nations, why have these concerns been left undressed.

However, she prefers to pursue a blatant civil war relic steeped in the tinge of slavery, the Treaty of 1866. With this treaty in hand, she seeks to punish not only all Citizens of the Cherokee Nation but also those Freedmen that currently receive benefits from the Cherokee Nation, with a bill filed the 21st of June, on the eve of the 23 of June Cherokee Election to scare the Cherokee people and influence their votes.

She also seems to forget that each of those Cherokee Citizens are also Citizens of the United States.

Sunday, June 24, 2007

The 1866 Treaty

If you click the title above you can read the entire text of the 1866 treaty.

The opening article declares a prior treaty void - isn't that interesting:

ARTICLE 1.
The pretended treaty made with the so-called Confederate States by the Cherokee Nation on the seventh day of October, eighteen hundred and sixty-one, and repudiated by the national council of the Cherokee Nation on the eighteenth day of February, eighteen hundred and sixty-three, is hereby declared to be void.

Articel 4 states very clearly, these were freed slaves:

ARTICLE 4.
All the Cherokees and freed persons who were formerly slaves to any Cherokee, and all free negroes not having been such slaves, who resided in the Cherokee Nation prior to June first, eighteen hundred and sixty-one, who may within two years elect not to reside northeast of the Arkansas River and southeast of Grand River, shall have the right to settle in and occupy the Canadian district southwest of the Arkansas River, and also all that tract of country lying northwest of Grand River, and bounded on the southeast by Grand River and west by the Creek reservation to the northeast corner thereof; from thence west on the north line of the Creek reservation to the ninety-sixth degree of west longitude; and thence north on said line of longitude so far that a line due east to Grand River will include a quantity of land equal to one hundred and sixty acres for each person who may so elect to reside in the territory above-described in this article: Provided, That that part of said district north of the Arkansas River shall not be set apart until it shall be found that the Canadian district is not sufficiently large to allow one hundred and sixty acres to each person desiring to obtain settlement under the provisions of this article.

Seems to me the U.S. is responsible for whatever problems they've created with this treaty.

ARTICLE 26.
The United States guarantee to the people of the Cherokee Nation the quiet and peaceable possession of their country and protection against domestic feuds and insurrections, and against hostilities of other tribes. They shall also be protected against inter[r]uptions or intrusion from all unauthorized citizens of the United States who may attempt to settle on their lands or reside in their territory. In case of hostilities among the Indian tribes, the United States agree that the party or parties commencing the same shall, so far as practicable, make reparation for the damages done.

One can read from the language of this treaty that it was certainly meant as punishment to for those Cherokees who fought on the side of the Confederacy and that this is most certainly a Civil War Treaty.

The NAACP has in the past, referred to many of the civil war relics as offensive in that they are *a badge of slavery* still visible today.

The 1866 Treat is a badge of Slavery to both the Freedmen and the Cherokee Nation and as such has no place in the U.S.'s arsenal of Treaties or documents which are relied upon in relationships with the Indian Nations.

Therefore: this treaty should either be renegotiated and the U.S. strike it's own Freedmen to U.S. agreement or better yet the Congress should declare the treaty null and void as out dating its purpose and as a civil war relic that no longer belongs on any negotiation table.

I don't pretend to know all the ins and outs of this treaty so perhaps Don Stroud says it best:

The people speak: Let’s enforce all 31 articles in 1866 Treaty
http://www.muskogeephoenix.com/opinion/local_story_088173722.html

I read state Rep. Mike Shelton’s March 12 column in the Phoenix . Although I find it somewhat ironic that the representative would use the same tone used to counter the 1960’s Civil Rights and Black Power movements, I have to agree with his support of our Cherokee treaty rights.
By believing “we should preserve the treaties between our federal government and the tribes and respect tribal sovereignty,” does he mean all the provisions of the 1866 Treaty?

Article 9 grants freedmen and their descendants citizenship.

Article 31 reaffirms “all treaties heretofore ratified,” leaving intact our nation’s boundaries.

Article 8 prohibits the granting of a “license to trade goods, wares or merchandise” by the United States “unless approved by the Cherokee National Council.”

Article 26 contains “The United States guarantee to the people of the Cherokee Nation the quiet and peaceable possession of their country,” and “They shall also be protected against interruptions or intrusion from all unauthorized citizens of the
United States who may attempt to settle on their lands or reside in their territory.”

Article 27 states, “And all person not in the military service of the United States, not citizens of the Cherokee Nation, are to be prohibited from coming into the Cherokee Nation, or remaining in the same, except as herein provided; and it is the duty of the United States Indian agent for the Cherokees to have such persons, not lawfully residing or sojourning therein, removed from the nation.”

I take it “those of us in the Oklahoma government” will not object to the enforcement of all 31 articles of the 1866 Treaty. Shelton ’s constituents would not be affected as the district he represents is outside our nation’s boundary. My high school civics teacher pointed out that the U.S. Constitution reserves treaty-making powers to the federal government and prohibits entering into a treaty by any of the states.

Just for clarity, I am not a member of the Cherokee Nation government, nor am I a nation employee. I am just a regular old Cherokee citizen expressing his opinion.

Don Stroud
Tahlequah

Congresswoman Watson likewise would be well advised to listen to a few of her Oklahoma colleagues in reference to this matter.

The Dawes Roll

What exactly is the Dawes Roll - well some time in the late 1800s and the early 1900s, a congressman by the name of Dawes formed a commission, which back then was known as the Dawes Commission thus the Dawes Rolls - you know, like the Warren Commission and all those other modern day commissions we've had. This commission embarked on counting and identifying all Indians within the Nations which is where they removed all the 5 Civilized Tribes and then some, which is now the current state of Oklahoma.


This is the Title page of the Dawes Roll:






This is a sample page of the Cherokee by Blood section of the Dawes Roll:




Another list gives you Cherokees by Intermarriage - now this can be confusing, since at one time the BIA or in those days the Indian agency or commission allowed Cherokee by Intermarriage but by the early 1900s there is a Commission case which disallowed Cherokee by Intermarriage - so in other words if you were white and you married a Cherokee, you were no longer considered Cherokee by Intermarriage.




And here is also the Cherokee Freedmen:


Now we come to the Final Rolls - this one is for the Cherokee Freedmen:


This is a page from the Delaware Cherokee - no one questions that the Delaware are Cherokee, we just know that not to be true - but you see in the early 1900s, it was an insult to the Indians to include the Delaware as Cherokee - we know they're a separate tribe - but this again shows the lack of respect by the U.S. authorities as to the true nature of Cherokee or Delaware for that matter. Still going on today.



And here is that infamous final roll of Cherokee, showing the blood quantum on their census cards - this was done for all the Five Civilized Tribes - my interest here is only the Cherokee:



The only people in these records listed with a blood quantum are those who were Cherokee or Delaware, now we know the Delaware are not Cherokee, so that must be their stated Delaware Blood.

A 100 years later, Congresswoman Watson would have us go back and second guess what determinations were made by the Dawes Commission - well, in that case, she should be prepared to check the records of all the blood quantum, since very few believe them to be correctly stated. She should also require the U.S. to list a blood quantum for all those descendant from say an Irish ancestor or German Ancestor or yes, just exactly what part Black is Congresswoman Watson.

And what about our Hispanic neighbors - just what part Hispanic and white are they?

Now all of these Indians by Blood were determined so that the U.S. could dole out land allotments to Cherokees, rather than allowing the Nation to have all it's land in trust. So likewise what is the point of a remaining blood quantum. Well, that is how benefits to the Indians are doled out to the Indians today.

So where is Congresswoman Watson's legislation to rid the Nations of the federal regulations of Blood Quantum requirements? or the restrictions of use of Federal Funding that is doled out to territorial boundaries? If you say, I couldn't find any such introduced legislation, you are quit correct, there is little concern on Watson's part for the Cherokees unless you are a Freedman .








Watson bill - H.R. 2824

Well, just exactly what does this bill say? It starts like this:

To sever United States ’ government relations with the Cherokee Nation of Oklahoma until such time as the Cherokee Nation of Oklahoma restores full tribal citizenship to the Cherokee Freedmen disenfranchised in the March 3, 2007, Cherokee Nation vote and fulfills all its treaty obligations with the Government of the United States,and for other purposes.

No mention of any obligations the U.S. has under the treaty obligations? So do we still have a one sided treaty platform, do as we say, not what we do?

Currently all Freedmen are enrolled citizens and will remain so until the matter has been resolved. The distinction comes between those Freedmen that can prove they have a Cherokee Ancestor on the Cherokee Base roll, commonly refered to as the Dawes Roll. There are both Freedmen who can not prove they have a Cherokee Ancestor on this roll and many Cherokee that can not prove they have an ancestor on this Dawes Roll.

As of this posting the bill is in the House's committees of Natural Resources and Judicary. Only time will tell, if we as a nation (both the U.S. and the Cherokee Nation) have passed out of the dark ages of the 1850s and into a more enlightend era of the 21st century.

So what about this 1866 post Civil War Treaty - good grief, isn't it time for some change?

There is a Cherokee Court case pending on this issue as well.

(In order to view the progress and bill text, click on the title above)