GREELEY, Colo. – Battles for Native sovereignty are increasingly complex. Since the 1960s voting rights era, the intricacies of Indian water rights, protective laws for Native women, environmental justice, and other essentials of American Indian life have moved center stage.
It’s not surprising that the second annual Pathways to Respecting American Indian Civil Rights at the University of Northern Colorado (UNC) August 10 – 11 drew on a variety of experts to paint a collective picture of today’s problems and achievements, depicting sovereignty as a work in progress.
“The U.S. Supreme Court continues to be our biggest challenge,” said John Echohawk, Pawnee, executive director of the Native American Rights Fund (NARF), as he described a major hurdle encountered in Indian litigation in the last two decades.
Echohawk pointed to Indian-friendly legislation in the 1970s and 1980s, but said today Native litigants are advised “not to go there” because the high court “will reinterpret treaties and Indian law against us,” and some of the justices are “outright hostile.”
Big-dollar settlements have occurred nonetheless—there was the $3.4 billion-plus Cobell award for mishandling individual Indian trust accounts over the years, perhaps soon to be dwarfed by a settlement five times greater when claims are tallied for more than 100 tribal trust accounts, he said.
Gaps remain in tribes’ authority because of limitations the government can place on Indian lands as trustee, on tribal law enforcement and tribal courts under federal law, and even on Indian education, which has been administered by states and which he termed “one of the most important human rights issues.”
In what he hailed as “a game-changer for our people,” Echohawk said proposed legislation would recognize tribal jurisdiction concurrent with that of the states in reservation schools, a measure that might later be extended to Indian populations off-reservation.
Native education was termed “a moral imperative” by Carol Harvey, Dine’, executive secretary of the Colorado Commission of Indian Affairs (CCIA), who gave opening remarks, and Monty Roessel, Dine’, superintendent of Rough Rock Community School District in Arizona, who said that when people talk about education, they are “talking about survival and (they are) talking about identity.”
Roessel said school officials asked themselves, “What does a successful student look like?” He cited a valedictorian who could have gone to an Ivy League school but who chose to become a medicine man instead.
Tribal authority has been affected in other ways, as well, by federal law enforcement on-reservation under the Major Crimes Act, by staff and budget limitations, and by complex local/state/federal overlapping enforcement jurisdiction in checkerboard areas.
Core unfinished business in tribes’ status was described by John Walsh, U.S. Attorney for Colorado, who pointed to tension between federal trust responsibility and sovereign tribal nations. He said that although the Department of Justice (DOJ) has made progress in Indian country, “We have an awfully long way to go,” and the justice system “can’t do it alone.”
The DOJ is coordinating with the U.S. Department of Health and Human Services (HHS) in Indian country, where substance abuse is “one of the springs from which violence flows” and “we can’t prosecute our way out of this.” Justice officials do not want to federalize the system, but would favor promoting justice at the tribal level, he added.
Although proposed amendments to the Violence Against Women Act would permit the tribal system to prosecute non-Indians for domestic violence and violation of protective orders, he said, “We’re going to get some push-back on that” because of a 1978 Supreme Court decision that tribal courts do not have jurisdiction over non-Indians.
Tribes should have an opt-out alternative to the present justice system or the system should be designed so that many crimes, often committed by juveniles, could be handled at the local, tribal level, said Troy Eid, former U.S. Attorney for Colorado and chairman of the Tribal Law and Order Commission.
Indian juveniles committing felonies in Indian country are automatically transferred to the federal system where there is no parole and where typically they serve at least 85 percent of their sentences, while in state courts the percentage of sentencing time served may be about 32 percent, he said.
Two-thirds of juveniles in the federal system are Native, Eid said.
In one of several breakout sessions, three FBI employees and a BIA special agent described crime on the vast high plains reservations where law enforcement response time may be two to three hours.
The BIA agent, David Lawrence, Cheyenne River Sioux, works on the 2.3 million-acre Standing Rock reservation of North and South Dakota, where law enforcement is “so inundated by violent crime we haven’t time to do ‘normal’ (law enforcement)” and where most crimes are alcohol-related: “Take away the alcohol, and 99.3 percent of offenders are good people.”
Most crime victims on Standing Rock know their assailants and “Indian people are a very forgiving people,” he said, explaining that in domestic abuse, as the case progresses, by the time it reaches court the victim may be reluctant to testify. “There’s no easy solutions to your victims and people living within the same household,” he said.
At the heart of tribal sovereignty may lie the way domestic violence is addressed, tying together the historical trauma suffered by Indian nations with the domestic trauma of today, topics targeted in the conference’s final general session.
Karen Artichoker, Ho-Chunk/Oglala Lakota/Osage, of the Indigenous Women’s Justice Institute, who spoke on violence in the lives of Native women, said that in the past women had their own identity and belonged to their own cultures, and their supporting role was not seen as “less-than.” Mutual respect and interdependence marked the relationship of men and women, she said.
Yet today “very few Native women have escaped the trauma of assault. We’re talking about a lifetime of violence,” she said, adding that “You are an exceptional Native woman if you have escaped rape.” Of the statistic that one out of three Native women will be rape victims, she said, “Don’t you think that’s kind of low?”
Central to the analysis is the question of what causes violence against Native women, Artichoker said, noting that lack of adequate housing, unemployment, stress, under-treated alcohol and drug abuse, poor self-esteem, learned behavior, poor impulse control, and narcissism had been considered, then discarded, as the ultimate cause.
Colonization is at the root of violence against Native women in a world where status is not based on being a life-giver and protector, but rather on gender, class, money and education, and where, as Native women, “we were put in a one-down position” and the balance between male and female was not honored.
Years of attempts at cultural destruction resulted in a seldom-discussed but “deep, deep shame attached to being Native,” she said, pointing out that techniques used by the colonizers were the same as tactics used by contemporary batterers, including isolation, manipulation, degradation, and threats.
Tribal/federal issues resonated in other plenary and breakout groups, in one of which, Marguerite Salazar, HHS regional director for intergovernmental affairs, recalled that when federal officials were baffled by a fatal outbreak of disease, they ignored Navajo elders who tried to tell them “it was the rain.” Salazar explained that the elders had identified mice as the carriers, had studied weather patterns and, taken together with other factors, had predicted the outbreak of hantavirus.
Tribal sovereignty and environmental justice can be at odds and the former often has the advantage, Environmental Protection Agency attorney Jean Bellile, Winnebago Tribe of Nebraska/Lac Courte Oreilles, Ojibwa Nation, said of EPA government-to-government efforts to work with tribes on voluntary environmental measures that may be outweighed by tribal economic priorities.
Steven Moore, NARF senior staff attorney, said the U.N. General Assembly has declared water is a human right and to some Native nations water is sacred, figuring in creation narratives. Yet, he said, 13 to 15 percent of American Indians lack access to safe drinking water and adequate wastewater systems while 99 percent of the U.S. has access to improved drinking water.
Only 30 to 50 federally recognized tribes have had their water rights quantified in state and federal court decrees and tribes without protected water rights are at peril, he said.
The conference was hosted by UNC, CCIA, Colorado Civil Rights Division, the City and County of Denver Anti-Discrimination Office, and seven federal agencies.