Date: Mon, 09 Mar 1998 09:45:12 -0500 From: Louis Proyect <lnp3-AT-columbia.edu> Subject: M-TH: American Indian sovereignty, part 2 (NY Times article) (LP: Buried in this NY Times article is a concern about the right of reservations to control water pollution. This is behind the counter-attack on Indian sovereignty in my opinion, much more than any claims it would have over taxes, gambling revenue, etc.) March 9, 1998 Backlash Growing as Indians Make Stand for Sovereignty By TIMOTHY EGAN CROW AGENCY, Mont. -- Come south along the Little Bighorn River to a rise in the Montana hills, where the ghosts of Crazy Horse and George Armstrong Custer have taken up a permanent perch in American mythology. No blood has been shed here in well over a century, but the Little Bighorn is a battleground again. This is Crow Indian country now, part of the reservation owned by people whose role in the 1876 battle was largely on the side of the Seventh Cavalry, serving as scouts. For years the Crow have been trying to get a piece of the tourist trade that descends on the Little Bighorn in the summer months. Tourists drive over Crow roads, they dump garbage on Crow lands, they get into disputes that involve Crow police. But until 1995, when the Crow started levying a 4 percent resort tax on businesses catering to tourists within the reservation, the tribe was getting little revenue from the millions of people who wanted to see where the man the Indians called Yellow Hair made his last stand. The Crow were making a stand for sovereignty, and for economic survival. But many non-Indians on the reservation did not see it that way. They saw it as taxation without representation, and have refused to pay it. "I didn't persecute anybody at Plymouth Rock," said James Thompson, a tax opponent who owns Custer Battlefield Trading Co., just a stone's throw from where 210 soldiers fell. "This is the 1990s. We didn't do anything to them, and we don't owe them anything." But what started as a local tax dispute around a battleground of great historical value has now evolved into a legal and political fight that could have historic national implications of its own. In the courts and in the U.S., the tax rebels are moving to exempt a large portion of land within Indian reservations from tribal jurisdiction -- and gaining allies with every move. The issue is at the heart of American Indian sovereignty. It is as if the City of Minneapolis could tax and govern only the lands it owns, like parks and libraries, in the words of Tim Giago, the editor of Indian Country Today, a national weekly. "This goes right to the jugular," Burton Pretty-On-Top, the Crow cultural affairs director, said, referring to a bill drafted by Sen. Conrad Burns, R-Mont., to exempt some lands within the reservations from tribal rule. When they were viewed simply as the first Americans who lost everything to the country that formed in their midst, Indians were on the defensive but it was considered politically unnecessary to attack them. But with new money from casino gambling, and a maturing of tribal power, Indians are no longer everybody's favorite underdog. "You hear a lot more negative talk about these 'rich Indians,' " said Charles F. Wilkinson, a University of Colorado law professor who is an authority on Indian law. At the same time, political opponents -- mainly from the states where tribes have been flexing their sovereignty muscles -- are no longer shy about attacking new sources of Indian revenue and power. New proposals in Congress would drastically curb sovereignty. Also, some governors are threatening to shut down the biggest source of Indian revenue, casino gambling, unless concessions are made. "I think what we're seeing nationally are a series of attacks on the centuries-old right of Indian self-government," said Robert Coulter, a Potawatomi tribal member and executive director of the Indian Law Resource Center in Helena, Mont. Indian leaders say it has been about 20 years since Congress last passed a major law regarding Indians over the objections of most tribes. This year, however, they are worried. In Congress, the outlook for beating back challenges is uncertain, particularly in the House, where measures designed to limit the expansion of Indian holdings and jurisdiction have nearly passed in each of the last two years. After years of favorable tribal rulings, the Supreme Court has been rebuffing the tribes of late -- shrinking the concept of Indian country, giving the states more power to limit Indian gambling. Some of the people who are trying to restrict Indian rule simply do not like Indians' having any power over them, and they freely admit it. But others say what is really at stake is the concept of one country -- E. Pluribus Unum -- with a set of laws that apply to all people. The very idea of parallel nations, folded into the states, is an anachronism that should be done away with, or least given a full hearing, they say. "Citizens of the United States should not have their rights limited by separate governments within the United States," said Sen. Slade Gorton, R-Wash. For nearly 30 years, that has been his battle cry. This year, he will try to make it the law of the land. The Indian Fighter: A Senator's Case Against Tribes To people who believe the tribes are out of line, Gorton is a hero. On the Navajo reservation, though, Gorton is known as Kit Carson. It is not a compliment. Carson rounded up the Navajos in 1863, burned their food supply, cut down their orchards and marched the starving tribe to a holding area in the desert of southern New Mexico. For three decades, first as Washington attorney general, now as a U.S. senator with power over the Interior subcommittee that controls Indian money, Gorton has clashed with tribes. At times he is openly scornful, saying, "Making a case out of what happened to your grandfather is not the best way to decide public policy." When he speaks of "treaty rights," he puts the term in quotations, as if it is a false premise or a pretext for fraud. "These are peculiar treaties because they are clearly the law of the land, but they can also be abolished by Congress at will," he told The Congressional Quarterly last year. As fashioned over two centuries of court rulings, Indian nations are stepchildren in the family of government: they have many powers equal to the states, but remain subordinate to the federal government. The government is the trustee of Indian lands, but more often acts as the taker -- a profound conflict of interest, in the eyes of many legal experts. It is when Gorton talks about Indian sovereignty being unfair and unworkable that he wins his most converts, even among some Democrats who solidly back the tribes. His tactics, though, are another matter. His effort last year to link basic tribal financing to a weakening of sovereignty -- and then doing so without holding a single public hearing or meeting with the affected tribes -- angered even some supporters of restricting sovereignty. Indians, as American citizens, are subject to the same laws as everybody else, with some exceptions. If an Indian commits a crime or a civil offense anywhere off the reservation, he will go through county, state or federal court. On reservations, tribal police can arrest tribal members for minor crimes -- but have no jurisdiction over non-Indians. Major crimes like murder, racketeering or armed robbery, are prosecuted by the federal authorities. If someone tries to sue a tribe for damages, the claim usually goes to tribal court. Tribes, like local governments, often invoke sovereign immunity to limit the damage. It is an old concept, saying the tribal government cannot be held liable for some things. Otherwise, lawsuits would bankrupt a tribal government, particularly a small one. Gorton has just introduced a bill designed to drastically weaken sovereign immunity for Indian tribes. Because Gorton is chairman of an Interior subcommittee that controls everything from parks to financing for the National Endowment for the Arts, he has considerable powers to make deals and as such opponents of the measure are uncertain if they can defeat it. Why raise such a fuss over a somewhat obscure concept? Gorton likes to bring up a case from his home state. Five years ago, Jered Gamache, age 18, was killed in a car accident on the Yakama Indian Reservation in Washington when a tribal police officer, in pursuit of a crime, ran a red light and smashed into the teen-ager's car. "This family has no ability to hold the Yakama police or tribal government responsible for the actions of one of their officials in a neutral court," Gorton said. The Gamaches are farmers -- not part of the tribe -- growing hops, apples and grapes on land they own within the Yakama reservation. They are an island within the island. The family did not sue in tribal court, Bernard Gamache said in an interview, because they felt they could not win in an Indian court. But do people like the Gamaches really have no other recourse for justice? Their recent actions would indicate that they do. Quietly, the Gamache family recently settled their case out of court, after filing a claim against the tribe in federal court in eastern Washington state. The federal government, as trustee of Indian lands, was held responsible, and the family was compensated, although Gamache said he was bound by secrecy rules from disclosing the amount. The Business Gambit: Casinos as Leverage in Wisconsin Fight Surrendering some tribal power is on the table now in Wisconsin, where Gov. Tommy Thompson, a Republican, is negotiating with the Indians over an extension of their casino agreements. Quietly, Thompson is being cheered by other governors, who have been looking for ways to curb the casinos that have changed their states overnight. Essentially, this fight goes to the nature of tribes. If the Indians want to act like businesses, Thompson asserts, then they should be fully taxed and regulated, and forced to give up some of their old ties to the land. The Indians of the upper Mississippi drainage have won federal court decisions that changed the balance of power, assuring them of hunting and fishing rights over millions of acres in Wisconsin and Minnesota. Much of these lands is outside reservation boundaries. Thompson is trying to get the tribes to set strict limits on taking fish and wildlife. The governor also wants the Indians to back off from their efforts to enforce clean water standards in the state -- a use of sovereign power offered to Indians by Congress 10 years ago, and now being explored by a few tribes. In Minnesota, the state government has welcomed tribal entry into clean water regulation, even when it means stricter controls. "We're glad to have the help," said Dwayne Anderson, a manager at the Minnesota Pollution Control Agency. Not so in Wisconsin, where politically powerful paper mills are prime polluters. Thompson says the clean water standards proposed by the Indians are an effort by tribes to "stretch their reach off reservation." The governor's leverage is the source of Indian revival in his state -- the casinos run by 11 tribes -- which generate up to $260 million a year in revenue. They are up for state renewal this year. The casino of the Oneida nation, which opened in 1991, has given the tribe nearly full employment, and allowed it to buy hotels, a convention center, a printing plant and a wireless communications company, and build schools and senior centers. The Oneida are now the largest employer in the Green Bay area. But the tribes have enemies, among them the Tavern League of Wisconsin, which says its members cannot compete with the cheap drinks and food at casinos. Thompson says he may not renew the agreement that allows the tribes to operate their casinos. Earlier, he was asked how he was going to make good on such a threat. "Watch me," he said. The law that legalized Indian gambling allowed the tribes to open casinos on reservation land as long as the states agreed in a contract, called a compact. Before agreeing to a new compact, Thompson wants the Indians to be taxed a certain percentage of their gambling revenue by the state -- they now give the state a flatt fee of $350,000 total from all 11 tribes -- as a condition of compact renewal. The Indians say the tax plan misses a vital point -- they are not corporations. They are governments, as the Supreme Court established in the 1830s. "If you had these conservative Republicans all of sudden trying to tax county governments or state lotteries people would look at them like they're crazy," said Bill Gollnick, an Oneida leader. Treaty rights to water or hunting are upheld by the Constitution, as the supreme law of the land. But by tying these treaty rights to gambling, Thompson has pitted Indian governing powers against the new buffalo of casino gambling. "Keep in mind, the gaming compacts are not a treaty right," Thompson said. "We are asking nothing from the tribes that exceeds the principles of reason and fairness." The Indians see an old story: tribal success, followed by backlash. Congress has given Indians the tools to create jobs and secure a cleaner environment, and then a state like Wisconsin tries to thwart those new initiatives. The Oneida, who once made sovereignty agreements with the Dutch and the English in 17th century New York, now employ 5,874 people in northeast Wisconsin. What other job provider of that magnitude, they wonder, would have its very survival held up by a state governor? The Tax Rebels: A Gather Storm Over Reservations Rumors and threats ride the hard Montana wind as it blows through the creaky, half-boarded up tribal buildings here at Crow Agency. Tension has grown. The tribe has placed liens on the property of people who refuse to pay Indian taxes. "The backlash against the tribe has gotten to the point where I'm afraid things could get violent," said Jay Stovall, a rancher and Republican state legislator from Billings. Stovall has a foot in both worlds. He is one-eighth Crow Indian, and an enrolled member of the tribe. But he wears an oversized cowboy hat and sympathizes with the non-Indians. Many of the Crow do not trust him. He unfolds a big map of the Crow reservation, once covering 38 million acres, now barely more than 2 million. It is a checkerboard of mixed-ownership, a legacy of the 1887 Allotment Act, which led to the sale of nearly two-thirds of the property on Indian reservations, though it remains within tribal boundaries. Back in 1876, Sitting Bull, the leader of the Lakota, had urged Indians never to give up the old ways. "You are fools to make yourselves slaves to a piece of fat bacon, some hard-tack, and a little sugar and coffee," Stovall said. The Indians run a little casino here now, which barely breaks even; they farm and own a few businesses. About 40 percent of the reservation is in non-Indian hands, Stovall said, even though the Crow, with a population of 7,153, make up big majority on their land. Nationally, only 140 of the 314 reservations have entirely tribally owned land within their boundaries, and nearly half the people who live on reservations are non-Indians. "We are a private property," said Christopher Kortlander, who owns the town of Garryowen, a gas station and trading post near the battlefield. "We pay state, federal and county taxes. Why should we have to pay Indian taxes? We're not Crow Indians, and we never will be." To the Indians, the tax rebels are scofflaws who will never accept tribal authority. They point out that any Montana resident who drives across the border to Wyoming and buys something pays a sales tax -- without any say in how that tax was levied. If this fight were just about the Crow and the Custerphiles, it might not mean much outside of Montana. But everyone in Indian country is watching the outcome. "This bill from Senator Burns could be enormously dangerous," said Kevin Gover, head of the Bureau of Indian Affairs. Referring to a bill that would exempt all non-Indian land within reservations of Montana from tribal jurisdiction, Gover said, "It would take away a tribe's ability to defend and protect its community." The people who sell Indian blankets, arrowheads and pictures pegged to the Little Bighorn battle say they will continue to balk at any tax payments to the Crow. "When I moved here, I had sympathy for the Indians," said James Thompson, the tax opponent and trading-post owner. "This has soured my view." But in adversity, the tribes seem stronger, less given over to the feuds and jealousies that have plagued them in the past. When Gorton first tried to knock down Indian sovereignty last year, the effect throughout Indian country was electric. "Whether he knows it or not, Senator Gorton has done the tribes a favor," said Billy Frank Jr., a Nisqually Indian leader from Washington state. "He brought us together and underscored the need for Congress to get to know us better." In New York City, a few blocks from Wall Street, a plaque inside the grand National Museum of the American Indian says simply, "We are still here." On the Crow Reservation, Pretty-On-Top, the cultural affairs director, makes the same point. "We have great survival skills," he said. "We will weather this storm because we have weathered everything else. All we want is our own little spot in the sun." Copyright 1998 The New York Times Company --- from list marxism-thaxis-AT-lists.village.virginia.edu ---
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