Fletcher Paper on States and American Indian Citizenship Rights (+ ICWA)

Here is “States and Their American Indian Citizens,” recently published in the American Indian Law Review.

An excerpt:

This article is intended to provide a theoretical framework for tribal advocates seeking to approach state and local governments to discuss cooperation with Indian nations, with a special emphasis on Indian child welfare. While the federal government has a special trust relationship with Indians and Indian nations, Indian people are also citizens and residents of the states in which they live. Thus, states have obligations to Indians as well.

This article posits the fairly controversial and novel position that states have obligations to guarantee equal protection to all citizens, including American Indians (and non-Indians) residing in Indian country. In other words, states have an affirmative obligation to ensure that reservation residents, Indian and non-Indian, receive the same services from states that off-reservation residents receive.

Rebecca Webster on Tribal/Local Jurisdiction in Indian Country

Rebecca Webster has published “Tribal and Local Governments: Jurisdictional Challenges within Shared Spaces” in the Wisconsin Lawyer.

An excerpt:

The concepts of shared governance and pooling resources have gained much attention in recent years. Often standing in the way of cooperation is the inability of local governments to regulate beyond their borders.1 While this area of law is well established and generally predictable with respect to local governments, the same cannot be said for instances when tribal governments are involved.2

With a focus on Wisconsin, this article briefly outlines the complex jurisdictional issues that arise when a tribal government and a local government exercise various levels of regulatory jurisdiction within an Indian reservation. Each government has a legitimate interest in protecting its jurisdictional authority; however, the path to determine the extent of that authority often has been paved with costly litigation. Despite the cost in time and money, the pursuit of jurisdictional certainty through the courts is riddled with inconsistencies and unanswered questions. Because this area of law is not well settled, it can be difficult for governments to come to an understanding of their respective jurisdictional limitations3 and therefore, to form cooperative relationships.4

Rebecca Webster on Service Agreement Payment Formulas for Tribal Trust Lands on the Oneida Reservation

Rebecca M. Webster has published “Service Agreements: Exploring Payment Formulas for Tribal Trust Lands on the Oneida Reservation” in the American Indian Quarterly.

Here is the abstract:

Many tribal governments throughout the US struggle with developing and maintaining positive relationships with other governments that have overlapping boundaries. Sometimes a tribe and other governments are able to strike an accord and realize a wide array of ways their respective governments can complement each other in order to provide the best services to their shared communities. Other times tribal and local governments find themselves tied up in litigation and negative public relations campaigns due to their inability to find a way to peacefully coexist. The Oneida Reservation has a unique history leading to checkerboard landownership patterns and the presence of tribal and local governments providing varying levels of government services. With respect to tribal trust land, the Oneida Tribe and local governments have been working together for the past two decades to find equitable ways to recognize each other’s government services through service agreements.


Shrinking Federal and State Budgets a Possible Boon to Indian Country?

Thomas Jensen’s article in ICT (available here) identifying a possible “silver lining for tribal sovereignty” in the context of shrinking federal and state budgets seems, on first glance, to be counterintuitive, but the thinking is dead-on.

All around Michigan, anyway, tribes and local governments have become more and more interconnected and interdependent. Since 1993, when the first Class III compacts came into being, and where the tribes agreed to share two percent of their net win the local units of government, local governments have grown used to (and even dependent upon) tribal revenue sharing. The two percent payments fill needs in local government budgets, and generate more and more cooperation between governments.

Similarly, and on a broader scale, the settlement of a major reservation boundaries case at Saginaw Chippewa has provided models on how tribes and local governments can cooperate on everything from tax collection to hot pursuits to environmental protection.

The theme for the 21st century in Indian country should be about exercising good governance (in Angela Riley’s words), or Native Nation building or just plain intergovernmental cooperation. Local governments need Indian country, and vice versa.

Jensen’s point is well taken. State and local governments are losing the capacity to govern. Tribal capacity to govern is growing. Helping local (and even state) governments fill needs is an important way to help tribes grow into mature sovereigns.

Swinomish and Washington State to Co-Manage and Co-Own a New Park

This news is a few months old, but the Swinomish Indian Tribal Community and the Washington State Parks Commission have entered into an intergovernmental agreement to co-manage and co-own a new park within the boundaries of the Tribe’s reservation. Here’s a news article about it.

UPDATE–More information here:

10-036 Swinomish Tribe and State Parks announce joint ownership of Kiket Island

Intergovernmental Relations Developing in Cal. as a Result of Gaming

From here, via Pechanga:

Landmark intergovernmental agreements between California’s small and once impoverished American Indian communities and surrounding cities and counties are playing a crucial role in the growth of the nation’s largest tribal casino market.

But the agreements, intended to mitigate the impact of casinos and economic growth on sovereign Indian land held in trust by the federal government, are not without controversy.

Combined with a recent federal court ruling on the legality of tribes sharing casino revenue with the state, they muddle the future of California’s $7.3bn gambling industry.

“The whole nature of tribal, state and local government relations in California, as far as sharing revenues and mitigating the impacts of gaming, is being thrown up for grabs,” observes Nikki Symington, a consultant for the Rincon Band of Luiseno Indians, a small community near San Diego. “I don’t know that there is any happy solution down the road.”

The Indian Gaming Regulatory Act intended that non-Indian use of gambling revenue be largely restricted to regulatory oversight, problem gambling and other casino impacts.

Many of the fifty-seven California tribes that signed model 1999 tribal-state agreements, or compacts, allowing them to operate casinos voluntarily entered into local intergovernmental agreements and paid into a special distribution fund for traffic, public safety and other local impacts.

There are 107 federally recognize

d tribes in California, more than any state. Until casino gambling most were small, impoverished communities lacking roads, adequate utilities and with no history of government and political relations with the state, counties and municipalities.

“Our communities have been here a long, long time. But for 200 years we have been largely invisible, politically disenfranchised and isolated by poverty and neglect,” Anthony Pico, a citizen of the Viejas Band of Kumeyaay Indians, told a November 2007 meeting of the San Diego Association of Governments. “Gaming changed all that. We are trying to do what it has taken our neighboring counties and municipalities several generations to accomplish.”

Continue reading

More Machinations from the Village of Hobart

Earlier cases relating to the Village’s continuing objections to the Wisconsin Oneida Nation’s trust land applications and other issues are here and here.

Here’s the latest from Indianz:

A judge in Wisconsin said Oneida Nation police can be dispatched on emergency calls in the village of Hobart as part of a law enforcement agreement with Brown County.

The village claimed the agreement violated its right to home rule. But the judge said the state’s 911 law gives counties the power to determine who can be dispatched in emergency situations.

The village has fought the Oneida Nation on land-into-trust, taxation, sovereignty and other issues. The village administrator is a former leader of an anti-Indian group.

Get the Story:

Brown County can dispatch Oneida police, judge rules (The Green Bay Press-Gazette 10/15)

Court Decision:

Hobart v. Oneida Nation (October 2009)

Matheson v. Gregoire Cert Petition

The questions presented are:

Whether the State of Washington Cigarette Tax laws are federally preempted and inapplicable to an American Indian motor carrier hauling cigarettes between Indian reservations in Interstate and Indian Commerce.

Whether the laws of the State of Washington can regulate an enrolled tribal Indian shipping goods between a federally recognized Indian Reservation in Idaho to his business on the reservation of his membership located in the State of Washington.



1992 Indian Tribal Court/State Court Forum Final Report

The final report of this important forum is here (in pieces). Obviously parts of it are very dated, but this is important material regardless as legislative history of MCR 2.615.

Final Report Text

Appendix I — Minutes

Appendix II — Directory of Tribal Courts

Appendix III — Intergovernmental Agreements

Appendix IV — Mich. Indian Family Preservation Act