Kahente Horn-Miller on Kahnawà:Ke’s Community Decision Making Process

Kahente Horn-Miller has posted “What Does Indigenous Participatory Democracy Look Like? Kahnawà:Ke’s Community Decision Making Process” on SSRN. The paper has been published in the Review of Constitutional Studies.

Abstract here:

With the 1979 Community Mandate to move towards Traditional Government, the community of Kahnawà:ke has consistently requested more involvement in decision-making on issues that affect the community as a whole. The Kahnawà:ke Community Decision Making Process is a response to the community’s call for a more culturally relevant and inclusive process for making community decisions and enacting community laws. The Process is a transitionary measure to assist and facilitate the legislative function of Kahnawà:ke governance. This paper examines the development of the process and how it functions in the modern setting of Kahnawà:ke with the goal of illustrating Indigenous participatory democracy in action.

Fletcher Paper on the Seminole Tribe and the Origins of Indian Gaming

At the invitation of Alex Pearl and the FIU Law Review to write a symposium piece on Florida Indian history and law, a challenge for me since I know very little about it, I came up with “The Seminole Tribe and the Origins of Indian Gaming.” Assuming the law review finds it publishable, it will appear in the FIU Law Review alongside the work of luminaries like Siegfriend Weissner and Sarah Krakoff.

Here is the abstract:

The Seminole Tribe of Florida has played perhaps the most important role in the origins and development of Indian gaming in the United States of any single tribe. The tribe opened the first tribally owned high stakes bingo hall in 1979. The tribe in 1981 was involved in one of the earliest lower court decisions forming the basis of the legal theory excluding most states from the regulation of high stakes bingo, a theory that Congress largely codified in the Indian Gaming Regulatory Act (IGRA) years later. The tribe was a party to the Supreme Court decision in 1996 that radically altered the bargaining power between tribes and states over the negotiation and regulation of casino-style gaming under IGRA. And more recently, the tribe has been a leading participant in negotiations and litigation over the regulatory landscape of Indian gaming after the 1996 decision. The Tribe is one of the most successful Indian gaming tribes in the nation.

This paper traces that history, but also offers thoughts on how the culture and traditional governance structures of the Seminole Tribe played a part in its leadership role in the arena of Indian gaming.

OST Drug Testing Update — Tribal Court Vacates Drug Test Ordinance

From the Rapid City Journal (H/T Indianz):

Members of the Oglala Sioux Tribal Council who were suspended for not taking a drug test have been reinstated, after a tribal judge struck down the requirement.

In October, the tribal council passed a resolution requiring members and other elected officials to take a “hair follicle” drug test.

The ordinance was in response to the arrest in New Mexico of Councilman Don Garnier, who faces a federal charge of possession of marijuana with intent to distribute it.

Tribal Judge Lisa Adams earlier this month upheld the test for council members but struck down the requirement for the tribe’s treasurer.

On Nov. 7, a motion to rescind the drug-test requirement order failed by a vote of 12-2 of the tribal council.

Last week, however, Judge Adams killed the measure “in its entirety for vagueness,” according to documents faxed to the Rapid City Journal from the office of Oglala Sioux Tribe President John Steele.

At least 11 tribal officials took the hair-follicle test, as did Steele.

Two council members refused, arguing the council had no authority to pass the ordinance.

Three council members took a urinalysis test for drugs instead.

One council member’s test was canceled when the machine malfunctioned, and another couldn’t take the test because his hair was too short.

Garnier, who refused the test, remains suspended pending the outcome of charges against him.

It was unclear how many council members had actually been suspended for failing to take the test, but the question apparently is moot.

In a written memo to tribal council members, also faxed to the Journal, Steele said tribal officials suspended were reinstated with pay.

Drug Testing Update — OST Tribal Court Upholds Suspensions re: Drug Testing

I didn’t have to wait long on this question. The second article offers a little detail on the tribal judge’s ruling — of particular note was the ruling that the tribal treasurer could not be suspended because without her presence, tribal employees could not be paid. Suspending her would have created a “crisis.”

Here’s the first article:


Judge upholds suspension of some tribal council members for refusing drug test

Associated Press – November 10, 2007 5:25 PM ET

RAPID CITY, S.D. (AP) – An Oglala Sioux tribal judge has upheld the suspensions of some tribal council members who reportedly refused to take a drug test.

It was not clear how many council members were suspended. Judge Lisa Adams listed six and possibly a seventh, but council members put the number at four or five.

After a daylong hearing, Adams said she thinks the tribal council can require drug tests of its members.

She did, however, reverse the suspension of tribal treasurer Crystal Eagle Elk. She says the tribe could not pay employees or provide vital assistance if the treasurer were suspended.

Supporters of the resolution say it was a response to federal charges in New Mexico against council member Don Garnier, who has been suspended pending the outcome of the case against him.

Adams says she expects her ruling will be appealed.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Here’s the second article:


Oglala Tribal Council suspends members refusing drug test

Judge Lisa Adams upholds council suspensions

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The Oglala Sioux Tribal Council has suspended some members for refusing to take a drug test, and a tribal judge in Pine Ridge upheld the suspensions in a ruling Friday afternoon.

In the same ruling, Chief Judge Lisa Adams reversed the suspension of the tribe’s treasurer, Crystal Eagle Elk, saying the council did not have authority to suspend her.

“My ruling was really simple,” Adams said late Friday afternoon, after a court hearing that lasted all day. It was not clear Friday how many council members had been suspended for refusing the test. Adams’ list had six members, and possibly a seventh, but council members put the number at four or five.

It was clear, however, that Eagle Elk was not suspended. The judge said suspending her would have resulted in a “crisis” because the tribe would have been unable to pay employees or provide vital assistance.

Adams also struck down two parts of a resolution to suspend council members who refused the drug test. One of those provisions would have required publication of the results of the drug tests in newspapers. The other would have required members who failed tests to resign or be impeached.

“The problem is, the council abrogated its own rights,” Adams said.

Drug-test results should be private, Adams said, in part because they could expose council members to criminal prosecution.

Tribal Councilman Floyd Brings Plenty of Oglala, in the White Clay District of Pine Ridge Indian Reservation, introduced the original resolution Oct. 18.

It passed 10 to 3, Adams said, with five council members absent.

Brings Plenty said the measure was a response to federal charges in New Mexico against Councilman Don Garnier.

Garnier was a passenger in a car with 21 pounds of marijuana in the trunk, which authorities discovered during a routine traffic stop. Garnier was suspended pending the outcome of that case.

Brings Plenty said his resolution would demonstrate the council’s commitment to a drug-free reservation.

The measure requires council members and other elected tribal officials to take hair-follicle drug tests. Adams said an attorney for the tribe argued Friday that hair-follicle tests were more accurate than urine tests and could reveal drug use weeks or months before the test.

Brings Plenty said Oglala Sioux Tribe President John Steele ignored the council’s original resolution.

Steele was traveling this week, so Vice President William “Shorty” Brewer signed the order suspending the tribal members and the treasurer.

Tribal Councilman Tom Poor Bear, who was suspended, said he will fight the measure. “That violates our constitutional rights,” he said. “I was elected by the people of the Eagle Nest District.” Poor Bear said drug tests should be reserved for paramedics, law officers and others in similar positions.

Adams said six or seven council members had been suspended, but Kathy Janis of the Wounded Knee District, who was on Adams’ original list, said she not only took the drug test, she voted in favor of it. “If we want our employees to be drug free and take a hair-follicle test, why should we be exempt?” she said. Her name was on the original list in error, she said.

Garfield Little Dog Steele of the Wounded Knee District acknowledged he was suspended. He said his hair was too short for the test last month, but he did take a test this week and expected results Tuesday.

“I’m in favor of this,” Garfield Steele said. He voted for the drug tests, he said, and he said most people on the Pine Ridge reservation supported a drug-free council that “policed themselves.”

Garfield Steele and Janis said Austin Watkins of the Medicine Root District also would be removed from the list.

Other council members on Adams’ list were:

-Jim Meeks of the Eagle Nest District

-Kim Clausen of the LaCreek District

-Cora Whiting of the Medicine Root District

Janis said those three council members remained suspended, but the Rapid City Journal was unable to contact them Friday.

Adams said she believed the tribal council did have the authority to require drug tests of members. “The goal is to promote a drug-free council,” she said. “And if you test positive, you probably should step down.”

Adams expected her ruling to be appealed to the tribe’s three-member supreme court.

Drug Testing in Indian Country

As a former in-house attorney for four different tribes, I’ve seen several proposals to require tribal employees to be subject to random drug testing. I’ve always been against the idea because, in my experience, it creates an adversarial employment relationship. I even wrote one of my first articles about this question, “The Drug War Against Tribal Government Employees: Adopting the Ways of the Conqueror,” published in the Columbia Human Rights Law Review.

Part of my objection to drug testing tribal government employees is that there is no justification for testing employees — unless the government finds a serious problem of substance abuse amongst employees. And in the tribal governments I worked with, I saw nothing of the sort. If anything, the people working for tribal government were the cleanest, soberest, hardest-working people in the community. They would have to be or else they’d be replaced by someone better. My sensitivity favoring tribal employees is heightened by the fact that many tribal people not employed by the government tend to criticize (often unreasonably) tribal employees. Tribal council people know this — and to curry favor with their constituents, all too often join in the chorus. Drug testing proposals are often nothing more than political scheming. Politics does not justify intrusion into employee privacy.

Another part of my objection, not really stated in my article, is that the tribal government leaders that pushed so hard for drug testing never voted to apply it to themselves. This isn’t always the case, but it sometimes is.

I’ve not absolutist about this — if there is an established problem with employee substance abuse, then I see a justification for drug testing. I don’t like it, but since so many tribal communities are afflicted with substance abuse, if it is apparent that tribal employees are as well, then I see the argument. But like I said above, I doubt this is ever the situation.

To be fair to tribes that do drug test, there is a possibility that federal funds come with the requirement that employees be drug tested, but I think there’s a strong argument (and some authority) that those provisions are not meant to be applied to tribal governments. Moreover, I’m not aware of the government shutting down a federally-funded tribal government service because there was no drug testing of tribal employees. [Let me know if there has been.] That would be the equivalent, in my view, of the US eliminating the trust responsibility over drug testing, an outcome I doubt any federal court would agree with.

So I’m confounded a little by the news item (H/T Indianz) that the Oglala Sioux tribal council is bickering over drug testing for tribal council members. Like many tribes, OST already (apparently) subjects its employees to drug testing. And now that one of the council members has been indicted on a federal drug charge, the council is finally going to drug test its own. Several (as many as six) council members refuse to take the test.

I’ve been waiting since I wrote my article and before for a thoroughly reasoned tribal court decision tackling this subject. Maybe this could be it….