Legislative progress in Indian Country
by Nathan Empsall, Sat Jul 24, 2010 at 08:18:27 PM EDT
Here’s a legislative update on three big bills working their way through Congress with major ramifications for American Indians*. One has passed, one is making progress, and one is stalled.
You may remember a post I made in May highlighting the fact that 1 in 3 Indian women will be raped at some point in their lives thanks to a Supreme Court ruling that stripped tribal governments of criminal jurisdiction over whites on Indian lands. Well, both houses of Congress have passed Senator Byron Dorgan’s Tribal Law and Order Act, with the House moving this month. The new law won’t solve the criminal jurisdiction issues, but at least it will beef up tribal resources. From the newspaper Indian Country Today:
In both chambers, it was attached to the Indian Arts and Crafts bill [HR 725], which strengthens the ability to prosecute those who unlawfully sell purported Indian goods.
Under the bill, tribal courts will be allowed to impose sentences of up to three years, but their authority is affected in some ways, like being required to follow U.S. court system procedures. Also, tribes prosecuting individuals for crimes that could land them in jail for more than a year must provide defendants with the same right to a lawyer that they would have in state or federal court…
The bill will also provide tribal police greater access to criminal history databases such as the National Crime Information Center, and will require tribal and federal officers serving Indian country to receive specialized training to interview victims of sexual assault and collect crime scene evidence.
Further, it requires Indian Health Service facilities to implement consistent sexual assault protocols, and requires federal officials to provide documents and testimony gained in the course of their federal duties to aid in prosecutions before tribal courts.
I’m pleased that this bill passed so overwhelmingly, and a bit surprised. Tribal power is a touchy subject with so many mistakenly thinking that it’s about race rather than history and federalism. To see this kind of bill pass with such bipartisan support at a time when obstructionism is the name of the game is really affirming. It’s a shame that we still have to wait for an Oliphant fix – ie, a bill that would allow tribes, like states, to prosecute all criminals on their own land rather than waiting for the never-arriving feds – but for what it does, this is a good bill. I have written my Congressman, Walt Minnick (D-ID), to express my appreciation for his aye vote on this bill.
Another bill, this one making its way through Congress, would ensure that tribal lands are allowed to grow after a 2009 Supreme Court decision basically said certain tribes could only let their land shrink. It is referred to as a “Carcieri fix” because the decision misinterpreted Congressional intent. From another Indian Country Today article:
A legislative Carcieri fix has been successfully inserted into the current House Interior appropriations bill with a similar Senate action expected to be attempted soon...
Tribal officials said a proactive measure is needed to remedy a February 2009 Supreme Court decision, which found that tribes recognized by the federal government after 1934 cannot have lands put into trust for them by the Department of the Interior.
Most tribes, even if not directly affected by the decision, are deeply concerned about the usurping of tribal sovereignty and self-determination.
The article goes on to point out that critics are trying to defeat the bill by linking it to Indian gaming, even though the bill has nothing whatsoever to do with gaming. As is often the case with federal Indian law defeatists, it seems they don't understand the complexities of the issues involved.
Finally, perhaps the weightiest of all these bills is going nowhere for now. You might have heard of Cobell v. Salazar, a case old enough that it was originally called Cobell v. Bennett. This is the prominent lawsuit that charges the Department of Interior with mismanaging countless billions in Indian royalties and trust funds. The latest development is that a legal settlement for over $3 billion has stalled in the Senate. The ICT write-up blames the failure on Democratic in-fighting and Republican partisanship.
The delay may or may not be a good thing. On the one hand, Ms. Cobell supports the settlement, but on the other hand, some tribal advocates claim it needs work, specifically more protections for individuals. I myself don’t know enough about the bill’s contents to pick sides, but I will say that while I usually take the pragmatic side of things, the legal group National Congress of American Indians is siding with the detractors and I do respect the NCAI.
*Before I get any PC complaints about my not using the term “Native American,” know that “Indian Country” is the legal term for reservation and trust lands, hence it being the title of the large newspaper. I once took a Native American Studies course called “Federal Indian Law,” designed and taught by a Houma lawyer who now chairs the department. Major legislation tends to have names like the “Indian Child Welfare Act” and the “Indian Education Act.” Offices are called the “Bureau of Indian Affairs” and the “Indian Health Service.” I probably hear the word “Native” slightly more often than “Indian” when talking to American Indians, but they do use both interchangeably. (“Indigenous” is gaining popularity among intellectuals and writers in this Internet era of global communication.) My point is that “Indian Country” is an acceptable term.