Billings Gazette Special Report on Tribal Sovereignty

From the Billings Gazette:

When the last of the bison herds disappeared in the early 1880s, Indian nations on the Northern Plains were reduced to poverty.

In Montana, where there are no high-flying gambling operations and big population centers, economic conditions for American Indians have been slow to change. Unemployment is rampant, and business opportunities are scarce.

Through various acts of Congress, tribes are contracting with the federal government to provide essential services to their people. But federal funds, static for years, are shrinking. Tribes are taking on more responsibilities than ever for the welfare of their people and are pursuing economic opportunities to support their efforts.

Many Montana tribes are looking ahead to overhauling constitutions, regulations and relationships with the state and federal governments, and with business.

The Crow Tribe started fresh with a new constitution a few years ago. It has rewritten commerce laws and regulations and made agreements with the state, all with the intent of making business on their reservation less risky.

The Blackfeet are striving to make their northwestern Montana reservation friendlier to business and more enticing to the millions of tourists who visit Glacier National Park next door.

The Fort Peck Tribes want to take over the federal government’s role in regulating a type of gas well associated with oil and gas projects – a first in Indian Country.

New economic endeavors make tribes more attentive to the details of protecting their reservations. Environmental codes, business regulations, taxation and law and order codes are part and parcel of orderly economic development.

Tribes have enforcement authority over Indians within their reservations in both the criminal and civil arenas, but their authority over non-Indians is not so obvious. All of it is bundled into the concept of tribal sovereignty, which has taken a beating in federal courts over the past 30 years.

Today and Monday, The Gazette’s Lorna Thackeray takes a look at the concept of tribal sovereignty, how it evolved and how tribes are adapting to court decisions that have limited it.

Blaine Bulltail was between classes at Little Bighorn College in Crow Agency on Nov. 22, 1993, when he learned that his sister-in-law and her daughter had been killed.

“I was in shock,” he recalled in a February interview. “I couldn’t do anything.”

Sometime that morning, a Burlington Northern Railroad train passing just south of Lodge Grass had slammed into the big, old sedan his 17-year-old cousin, Regina Ann Bulltail, was driving. The car had stalled on the tracks at a crossing. Regina; her mother, Beverly Nadine Red Wolf Bulltail, 51; and a teenage friend died at the scene.

“Oh man, she was warm and gentle,” Bulltail said of his late sister-in-law. “Every time I showed up over there she fed everybody. She never had a negative word to say. Regina was just like her mom.”

Despite a settlement that came after the case had bounced all the way to the U.S. Supreme Court, family members believe justice was denied.

Survivors of the two Lodge Grass women originally filed a wrongful-death lawsuit in Crow Tribal Court and won a judgment against the railroad of $250 million, which was cut voluntarily by family members to $25 million.

But they didn’t get a chance to collect a single dollar before the railroad challenged the tribal court’s jurisdiction in U.S. District Court.

In the end, it didn’t matter that “Burlington Northern hits and kills Indians clear across the reservation, and it never is held accountable,” as an attorney for the family asserted. Or, as an attorney for the railroad maintained, that a nephew of one of the plaintiffs had been seated on the jury and that the verdict was “wholly unjustified and the product of proceedings that lacked any semblance of fundamental fairness.”

The issue was tribal sovereignty and related questions of jurisdiction. The Red Wolf decision, as it came to be known, was one of a string that resulted from two decades of court rulings that seemed to chip away at the concept of tribal sovereignty and limit jurisdiction of tribal courts.

Following tenets of other recent cases, 9th Circuit judges, in their final decision in Red Wolf, ruled that the Crow Tribal Court had no jurisdiction to hear a civil case involving a non-Indian entity operating on a federally granted right of way.

It was not a good time to bring a jurisdictional question before federal courts, but the family kept hoping until the 9th Circuit’s last ruling.

“All in all it was a negative turnout,” said Dewey Bulltail, husband and father of two of the victims. “It was unavailable. I feel we didn’t get justice.”

Tribes try to avoid taking sovereignty questions to federal court now, attorneys from Native American groups around the country say.

Congress, which could undo much of what the courts have done, has made adjustments, but it has not mandated broad sovereign powers that tribes assert are inherently theirs by right of history.

After more than 200 years of treaties, laws and court decisions, many questions remain unresolved. What sovereignty means seems to be a constantly morphing process and depends, in some measure, on who’s talking.

Whose history?

For tribes, sovereignty is not something to be given or taken by courts or by Congress. It’s something that existed before Euro-Americans moved in; something that predates the Declaration of Independence, the U.S. Constitution or court decisions. Tribes consider themselves “independent sovereign nations” that should have the power to control what goes on within their reservations.

Since its inception, the United States has used various words and phrases to define the tribes within its borders. Chief Justice John Marshall in an 1831 decision said tribes could not be considered foreign states but were “domestic dependent nations.”

“Their relation to the United States resembles that of a ward to his guardian,” he wrote in Cherokee Nation v. Georgia, an attempt by that state to seize lands granted to the Cherokee by treaty.

U.S. Indian policy has ticked back and forth like a metronome through the centuries. In broad strokes, the government’s early relations were through treaties with individual Indian nations until 1871. Every treaty was different, and many established reservations that shrunk through subsequent agreements.

Then, from about 1887 through 1934, the government passed various allotment acts that carved up reservations for distribution to individual tribal members. The acts were attempts to improve living conditions and to assimilate Indians into American civic life as independent farmers and ranchers, separate them from their tribes and remove the land from trust status after 25 years.

When the allotment acts proved devastating to American Indians – more than 90 million acres was lost to tribes – and did nothing to improve the deplorable poverty, the Indian Reorganization Act was passed in 1934. It helped restore to the tribes unallotted lands within the reservations and encouraged tribes to adopt constitutions and bylaws.

But in 1953, Congress passed laws that were intended to ease the government out of its role in Indian Country. In the process, more than 100 tribes and bands of Indians were terminated when their federal recognition was removed between the 1950s and 1970.

In the 1970s, policy shifted again. Terminations ceased and President Richard Nixon ushered in a new phase of Indian self-determination. The government began contracting with tribes and paying them to provide services normally supplied by the government – education, law enforcement, social services among them. The federal government endeavored to deal with tribes on a “nation-to-nation” basis. There are efforts now in Congress to require federal agencies to consult with tribes on any action that may affect them.

But while the executive and legislative branches of government seemed to be emphasizing tribal self-government, conflicts arose with non-Indians on or near reservations who feared attempts by tribes to assert jurisdiction over them.

On the big issues, federal courts have largely agreed that tribal governments have little jurisdiction over non-Indians.

It’s a complex conflict of constitutions and rights, and it isn’t over yet.

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