On October 10, my wife Barb and I were able to attend the oral arguments before the 9th Circuit Court of Appeals on the Mark Wandering Medicine versus Custer. Mr. Wandering Medicine was able to appear also with his wife to hear our Attorneys and the Department of Justice tell the court why the district judge was wrong in his interpretation of Section 2 of the Voting Rights Act. This was a historic moment for Indian Country in that the end results could allow equal access in voting all the way from Alaska to Arizona.
The reason this is so important for Indian Country is because electing officials who understand our treaties and sovereignty will ensure these remain intact for our future generations. Right now this is important because of the States now using Federal Agencies to encroach upon our Sovereignty. Their attempt to enforce State laws and taxes on tribes was never Congresses intent.
In the past years tribes have suffered loses economically which in turn affected our social issues within our reservations. These alone are bad, but include the constant encroachment of our Sovereignty that has allowed this present trend to occur, we all should be worried. It was our ancestors in their signing of treaties that created our Sovereignty, so it is our duty to defend it.
tribes are aware of the eighties when States and tribes fought over gaming. Because of this Congress passed legislation on Indian gaming, here we go again. Because of continual attacks by States attempting to enforce State gambling laws over tribal gambling law, in 1988 Congress passed PL 100-497, called the Indian Gaming Regulatory Act or "IGRA," recognizing that state gaming laws and federal tribal policy were unclear and set forth regulations based on the law.
Although there have been a number of bad legislation passed by Congress since 2009, I want to talk about the three that have a devastating effect on the First American. In each of these incidents sovereignty was weakened in the interest Federal, States and Cooperation’s profits.
In 2009 Senator McCaskill airdropped an amendment into the National Defense Authorization Act specially aimed at tribes working in government contracts (Native 8a Programs). Her amendment reduced caps on Federal contracts and limited them to $20 million a year. This has cost tribes hundreds of millions of dollars. In this incident the Sovereign Nation to Sovereign Nation was set aside for the benefit of big corporations.
In 2010 the PACT Act came to light because States and Big Tobacco wanted what little tribes were getting in economic development through Native Tobacco. tribes were aware that Congress was intent on improving economic conditions for Big Tobacco at the cost of tribes and attempted to work with Congress in protecting Tribal Sovereignty. The tribes involvement resulted in Section 5, being placed into legislation for protection of Sovereignty. The initial legislation placed tribes under the jurisdiction of the State at a county level.
Unfortunately the enforcement of the PACT Act came under the Jurisdiction of the Alcohol, Tobacco, Firearms and Explosives (ATF) and they have chosen to ignore Section 5. In a power point used to train ATF and task force agents they would like the PACT Act to have placed tribes with Terrorist, Organized Crime, Money Launderers, Drug Cartel and Smugglers to name a few. In fact ATF in their power point is more worried about Canada’s economic development then tribes. A Power Point called A TAXING ISSUE has a slide that states:
Native American Issues:
Under S Ct. Attea case, States can regulate sales to reservations.
CCTA is a statute of general applicability and applies to Native Americans.
ATF believes that Jenkins Act applies to Native Americans.
In 2011, we have the Federal Deposit Insurance Company and Consumer Financial Protection Bureau (CFPB) working under supposed federal laws and regulations that are now going after Tribal Short term loans. These laws and regulations created from the laws do not show Congress expressed "clear and plain congressional intent" for the laws when dealing with tribes and Tribal Sovereignty. But as usual the interpretation of determining our Sovereignty is being done by Federal Agencies. The Consumer Financial Protection Bureau, in a decision published September 26, 2013, ordered tribes to comply with civil subpoenas issued last year seeking information on their businesses. Federal Deposit Insurance Corporation on September 27, 2013 issued a Financial Institution Letter to Banks working with Tribal Short Term Loans to ensure they are in compliance with applicable law, that applicable law being state law. This comes after Tribal Sovereignty was affirmed in two cases, the Ameriloan and Suthers cases. In these cases the States could not enforce State law on the tribes. As with the PACT Act, when the States cannot get their way they reach out to Federal Agencies to shut the tribes down.
What we are now facing is the Federal Government placing tribes as Counties within the States and giving the States jurisdictions over tribes. With this happening the States are terminating economic development through taxation. With the current trend tribes will be completely under State Jurisdiction in a matter of years.
These actions affect all tribes regardless if they have an 8a Native Contracting Program, Native Tobacco or Native Short Term Loans. If tribes do not unite and stop State and Federal Agencies from regulating Tribal Sovereignty we will be losing what our ancestors fought and died for and we will leave nothing for our future generations.
We need to act now by contacting our Congressional Delegation’s and insist that they stop these Federal Agencies. Congress needs to have Tribal involvement when it comes to Sovereignty and Economics. Federal Agencies need to stop acting like they are Congress, and promulgate rules and regulations with tribal input.
Oliver J. Semans is an enrolled member of the Rosebud Sioux Tribe and executive director of Four Directions.