Heather Kendall-Miller & Lloyd Miller: GOP candidate a threat to Native rights

From Indianz:

Now that the primary is over and Dan Sullivan is the Republican nominee running against Alaska Senator Mark Begich, it’s time to closely examine his record on issues of import to Alaska Natives. The Native community has long assessed political candidates based on their positions on subsistence, tribal sovereignty, Indian child welfare, and voting rights. In each of these areas, Dan Sullivan’s record is clear: he is a staunch opponent of Native rights.

Perhaps no issue is of greater importance to Alaska Native people than the right to hunt and fish according to ancient customary and traditional practices, and to pass on the subsistence way of life to future generations. Dan Sullivan has aggressively opposed subsistence interests through litigation, legislative initiatives, and support for state policies that marginalize tribal voices.

As Governor Sarah Palin’s Attorney General, Sullivan waged war on subsistence rights by carrying on the Katie John litigation and seeking to overturn a prior court decision affirming the federal government’s retained authority to manage subsistence fisheries in Alaska. As most Alaskans know, Katie John was a revered Ahtna elder who fought tenaciously to protect her right to subsistence fish on her Native allotment in the Wrangell-St. Elias National Park and Preserve.

Attorney General Sullivan joined the ranks of past Indian fighters who argued that the subsistence protections established under the Alaska National Interest Lands Conservation Act should be narrowed to exclude vast stretches of Alaska waters from subsistence fishing, in favor of sport and commercial fishing. Had it been successful, the appeal would have dismantled the Federal Subsistence Board’s authority to prioritize subsistence fishing over other uses when resources become limited. Fortunately, both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court rejected the state’s attack.

Sullivan’s hostility to Native interests continued when Governor Sean Parnell moved Sullivan over to be the Commissioner of the Alaska Department of Natural Resources. As Commissioner, Sullivan led the charge in adopting a new Bristol Bay Area Plan which reclassified land use planning for state land at the Pebble Mine deposit as solely mineral land, omitting any land use for subsistence hunting and fishing purposes in an area central to subsistence in southwest Alaska.

It is no secret that Alaska’s Chinook king salmon runs have crashed over the last decade, and that Yukon and Kuskokwim River subsistence users have been unable to meet their basic needs. That leaves the Nushagak River watershed as habitat for Alaska’s last thriving Chinook king salmon run. Despite that fact, Commissioner Sullivan turned a deaf ear to the voices of Bristol Bay’s rural residents and tribal members who consistently voiced their opposition to hard-rock sulfide metallic mining in the Bristol Bay watershed.

In an effort to distract Alaskans, Sullivan frequently repeats the catch phrase “federal over-reach,” and in the name of state sovereignty he supports the state and the mining company’s lawsuit to stop the Environmental Protection Agency (EPA) from protecting the Bristol Bay watershed from destructive mega-mines like Pebble.

Sullivan’s opposition to subsistence rights does not stop with the Pebble Mine. As Commissioner, Sullivan also sought to marginalize tribal efforts to protect subsistence fisheries by pressing for enactment of Alaska House Bill 77. That bill would have granted Sullivan broad discretion to issue permits without any public notice, would have abolished the public’s right to weigh in or appeal permitting decisions, and would have blocked Tribes from applying for in- stream-flow water rights to protect fish. Sullivan was unapologetic in embracing this failed legislation, telling Radio Kenai in March 2014 that “I led that effort and am proud of it.”

Sullivan’s track record on Native rights fares just as poorly when it comes to tribal sovereignty. As Attorney General, Sullivan hired a high-powered Washington, D.C. law firm at over one thousand dollars per hour to secure U.S. Supreme Court review of a case that had recognized tribal court authority over member children. At issue was the State’s refusal to give full faith and credit to a tribal court order in a tribal adoption case heard by the Kaltag Tribal Court.

Sullivan and his hired gun made the extreme argument that the Tribal Court had no jurisdiction to protect its own village children. Fortunately, not only did Alaska lose that case; the state was later forced to pay Kaltag’s attorneys fees. Sullivan’s hostility to tribal sovereignty was palpable in the state’s brief, even when the welfare of a small child hung in the balance.

Unrepentant, Sullivan’s administration continues its attack on tribal sovereignty in the state courts, arguing in the recent Simmons v. Parks case that an Alaska tribal court lacks jurisdiction to take care of a child in need of protection if the child’s father comes from a neighboring tribe— never mind that the father is incarcerated for domestic violence. Fortunately, this year the Alaska Supreme Court unanimously rejected that cramped view of tribal sovereignty.

Sullivan’s record on the Violence Against Women Act (VAWA) fares no better. The 2013 VAWA reauthorization allows tribal courts to prosecute certain crimes of domestic violence committed by non-Indian perpetrators, to enforce civil protection orders against them, and to secure enforcement of those orders by states. But at the Sullivan administration’s request, and without any advance notice of public debate, Senator Lisa Murkowski inserted an “Alaska exception” to VAWA which excluded Alaska Tribes from VAWA’s new provisions. Alaska Native women immediately protested Murkowski’s amendment, and the Indian Law and Order Commission later called it “unconscionable.”

The Commission added: “Given that domestic violence and sexual assault may be a more severe public safety problem in Alaska Native communities than in any other tribal communities in the United States, this provision adds insult to injury.” The Law and Order Commission’s finding that Native villages are subject to grossly inadequate state law enforcement and judicial systems made national news and has been the subject of two feature stories in the Washington Post.

To her credit, Senator Murkowski has joined Senator Begich in seeking to amend VAWA by repealing the “Alaska exception.” But Sullivan is unabashed in opposing that fix, and in a recent MSNBC interview he refused to directly answer whether he would have voted to reauthorize VAWA in the first place.

Later, a Sullivan spokesman sent an e:mail citing current Attorney General Geraghty’s statement that the Alaska villages are well-served by state law enforcement mechanisms. Plainly Sullivan, like Geraghty, remains of the view that Alaska Native villages must not have any independent authority over an issue as local and as tragic as domestic violence, and must remain content to rely on a grossly underfunded and distant state system of justice that is centralized in the State’s urban areas.

Sullivan’s hostility to tribal issues in Alaska is part and parcel of general state policy under Governor Parnell. This is the same state administration which helped lead the charge to overturn Section 5 of the Voting Rights Act. Section 5 required a handful of states, including Alaska, to obtain advance approval by the Justice Department before making any change to a state’s electoral process. Thanks in part to the Parnell administration’s efforts, last year the Supreme Court struck down Section 5 of the Voting Rights Act in the Shelby County case.

At the same time, ongoing federal court litigation in Anchorage demonstrates that this administration continues to violate the rights of Alaska Native voters. In Toyukak v. Treadwell, two Tribes and two Alaska Native voters filed suit in federal court charging state election officials with ongoing violations of the federal Voting Rights Act and the U.S. Constitution.

 

The trial earlier this summer has shown that state officials regularly fail to provide sufficient language assistance to citizens whose first language is Yup’ik, the primary Alaska Native language in western Alaska. Indeed, evidence at trial indicated that the state has been operating one electoral system for urban voters and a separate and lesser one for Native and rural voters. Without the very federal protections that Alaska opposes, Native voters would have no protection at all.

Fortunately for Alaska Natives and tribes elsewhere, Senator Begich is in good position to be re- elected. Senator Begich has amassed a solid record in support of Alaska Native and American Indian interests. In direct contrast to Sullivan’s hostility, Senator Begich has drafted and championed strong amendments to the proposed Alaska Safe Families and Villages Act, granting local tribal governments the tools they need to protect women and children from domestic violence and sexual assault, and to help tribal communities combat alcohol and drug abuse.

Senator Begich is also pressing to repeal the Alaska tribal exception to the Violence Against Women Act, in order to enhance the enforceability of tribal court domestic violence orders. Sullivan and other members of his administration oppose these measures in the name of “states’ rights” and “state sovereignty”—dangerous and provocative language drawn from a darker period in American history. Sullivan’s preference for a feckless state rural law enforcement machinery that has done little to abate these problems in village Alaska reveals his root distrust of tribal governments.

But it isn’t just in tribal sovereignty matters where the two part ways. Senator Begich has a demonstrated commitment to protecting the Alaska Native subsistence way of life. Sullivan?

Not so much. Like his predecessor Ted Stevens, Senator Begich squarely opposes the Pebble Mine, in part because it would destroy the subsistence way of life enjoyed for millennia by the Bristol Bay tribes. Senator Begich therefore supports EPA’s effort to protect the Tribes by restricting mining in the area. In contrast, Sullivan’s knee-jerk opposition to whatever the Obama administration proposes on any topic recalls a Marx brothers song: “Whatever it is, I’m against it.”

Senator Begich’s record here runs deep. He developed and secured passage of a subsistence bill that overruled federal prohibitions against serving donated traditional foods in schools, hospitals, and elder care facilities. He is the Obama administration’s chief opponent in defending the rights of tribes in Alaska and elsewhere to be treated at least as fairly as other government contractors. He was the main democratic architect in the successful bipartisan campaign to defeat the Obama Administration’s 2013 attack on tribal contractors.

His hold on the confirmation of the U.S Indian Health Service (IHS) Director, together with his personal advocacy with the President and his public campaign in the media, forced a breakthrough in the settlement of historic breach of contract lawsuits against IHS, yielding over $600 million in nationwide settlements just this year for tribal health care systems. In addition, Begich successfully fought back those in his own party who would dismantle the ability of tribal governments to participate in the “8(a)” set-aside program to strengthen tribal economic development.

And he is championing countless other measures of import to Indian tribes everywhere, from amendments to the tax code that would equalize the treatment of government assistance payments to tribal and state citizens, to measures that would facilitate the government’s ability to protect tribal lands through the land-into-trust process, to Voting Rights Act amendments to enhance protections for Alaska Native and American Indian voters. Time and again, Sullivan lines up on the other, and the wrong, side.

In the end, Senator Begich has a proven record of accomplishments in advancing Alaska Native and American Indian interests. It is a solid and bipartisan record, as reflected in his close votes and coordinated efforts on these issues with fellow Senator Lisa Murkowski. These party opponents know how to compromise and work together for a greater cause. By all indications, that is not Sullivan’s way. Which is why we’ll be voting for Senator Begich on November 4th.

Attorneys Heather Kendall-Miller (Athabascan) and Lloyd Miller have been practicing Indian law in Alaska and Washington, D.C., for more than 50 years combined. The views expressed here do not represent those of their employers.

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