Salazar a Mixed Bag for Indian Country

Well, the other day I expressed some optimism that Ken Salazar would do some good things for Indian Country, despite his shaky record on environmental issues.

I guess I spoke too soon, if you go by this article in the Bismarck Tribune about the long time dispute over the Indian Trust monies.

Here's an excerpt:

Native advocates who believed President Obama would settle a longstanding suit between the Interior Department and American Indian landholders say they're disappointed with the new administration.

Instead, Obama and Interior Secretary Ken Salazar have expressed a need to settle the Cobell vs. Salazar case in court rather than sit down and talk to Indian landowners and negotiate a settlement.

"Salazar's out there talking, saying he wants to settle this case and putting false hopes into Indian people," said Elouise Cobell, the lead plaintiff in the case.

"It's really a slam in the face," she said. "Why is this administration taking this avenue? They have to live up to their trust responsibility, and they need to talk to Indian people."

In August, a judge awarded $455 million in a suit over Department of the Interior mismanagement of Indian Trust monies. Salazar now only will talk of a settlement after the case goes through the Court of Appeals.

Ken, are you with Indian Country or against it? Please let us know. If not, we'll be lobbying Obama for your replacement, no matter how many promises you make to provide better law enforcement in Indian Country (through the BIA).

Amnesty International Press Release

Amnesty International Media Advisory
FOR IMMEDIATE RELEASE:
Tuesday, March 24, 2009

U.S. House to Hear Testimony on Sexual Violence Against Native American and Alaska Native Women
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Hearing Follows Allocation of Significant Funding to IHS and BIA to Combat Epidemic of Violence; Funding Was Key Component of Campaign by Native Women Advocates and Amnesty International

Contact: AIUSA press office, 202-544-0200x302, lspann@aiusa. org

(Washington) --The U.S. House Interior and Environment Appropriations subcommittee will hear testimony Wednesday from a leading Native American expert on sexual violence against Native American and Alaska Native women. The testimony comes following passage of the Fiscal Year 2009 Omnibus Appropriations Act, which made significant progress addressing sexual violence in Indian Country, and in preparation for drafting the Fiscal Year 2010 Interior and Environment Appropriations bill.

Charon Asetoyer, executive director of the Native American Women's Health Education Resource Center and chair of the Native American and Alaska Native Advisory Council for Amnesty International USA's Stop Violence Against Women campaign, will deliver testimony to the subcommittee on March 25, 2009. She will speak about the epidemic of sexual violence against Indigenous women and ways that federal funding and programs can help combat it.

The FY'09 Omnibus Appropriations Act included a $235 million and $85 million increase in funding from the Fiscal Year 2008 levels for the Indian Health Service (IHS) and the Bureau of Indian Affairs (BIA) respectively. The explanatory statement accompanying the legislation included detailed language on sexual violence against Native American and Alaska Native women and directed the BIA to partner with the IHS, community advocates and tribal leaders to establish clear standards of practice and standardized protocols for responding to sexual assaults. The language also directed the BIA to provide training programs that develop culturally sensitive protocols, including the collection and preservation of evidence for prosecution, for officers in the field who are most often the first to respond to incidences of sexual assault.

"We are pleased that the House Appropriations Committee is setting high standards for federal agencies responsible for combating sexual violence against Indigenous women in 2009, and we fully believe that the Obama administration will deliver in meeting those expectations, " Asetoyer said.

In 2007, AIUSA published Maze of Injustice: The failure to protect Indigenous women from sexual violence in the USA, a report documenting that sexual violence against Native American and Alaska Native women is at epidemic levels. Asetoyer, who was interviewed for and consulted on the report, will speak to the need for the creation of Sexual Assault Nurse Examiner programs in all IHS hospitals as well as the importance of ongoing consultation between the BIA, IHS and Native women on how to create and implement the mandated standardized sexual assault protocols and training for responding to cases of sexual violence against Native women.

"The House Appropriations Committee is setting an excellent example of how government officials should respond to reports of human rights violations in the United States," added Renata Rend, government relations director for Amnesty International USA. "We look forward to continued work with both the House and Senate on addressing this particularly brutal form of violent crime against Native American and Alaska Native women in the United States."

The U.S. Department of Justice's own statistics indicate that Native American and Alaska Native women are more than two and a half times more likely than women in the United States in general to be raped or sexually assaulted. In order to achieve justice, Native American and Alaska Native victims of sexual violence frequently have to navigate a complex maze of federal, state, tribal and local law. In addition, the agencies responsible for responding to this violence are severely underfunded, and their services are far from adequate to ensure that required law enforcement and medical attention are supplied.

Amnesty International is a Nobel Peace Prize-winning grassroots activist organization with more than 2.2 million supporters, activists and volunteers in more than 150 countries campaigning for human rights worldwide. The organization investigates and exposes abuses, educates and mobilizes the public, and works to protect people wherever justice, freedom, truth and dignity are denied.

Issue Brief from the ACS

From the American Constitution Society, an Issue Brief.

ACS Issue Brief — Domestic Violence in Indian Country & Tribal Sovereignty
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From the American Constitution Society:

ACS is pleased to distribute an Issue Brief by Matthew L.M. Fletcher, Director of the Indigenous Law and Policy Center and Associate Professor at the Michigan State University College of Law, entitled, "Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty. " In this Issue Brief, Professor Fletcher argues that American Indian women residing on Indian reservations suffer from domestic violence and physical assaults at rates that far exceed those faced by other women, and that the perpetrators of these crimes often go unpunished. Professor Fletcher contends that the current state of federal Indian law has contributed to this epidemic of domestic violence in Indian Country. The author first notes that the Supreme Court has held that tribal governments do not have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian Country, and second that although federal and state authorities may prosecute these crimes, they often do not do so because of a lack of resources and other factors.

Professor Fletcher explains that among the traditional powers retained by Indian tribes under tribal sovereignty is the power to establish tribal courts and to prosecute criminal offenders for acts committed within Indian Country. He notes that traditionally, tribal sovereignty is inherent and undiminished unless the tribe has voluntarily divested itself of some aspect of its sovereignty or if Congress has affirmatively acted to divest the tribes of a part of their sovereignty. He argues, however, that the Supreme Court unilaterally changed these rules when it held that Indian tribes may be divested of their sovereignty by implicit divestiture (by Supreme Court decree). The Supreme Court has held that tribal governments do not have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian Country, leaving Indian women who are the victims of domestic violence and physical assault by non-Indians in Indian Country in a quandary when federal and state authorities do not prosecute these crimes, which they often are not able to do.

The Issue Brief proposes that Congress ameliorate this situation by enacting legislation that recognizes tribal court jurisdiction over domestic violence and related misdemeanors committed by non-Indians in Indian Country. Under Professor Fletcher's proposed plan, tribal prosecutions for these crimes would proceed as do other tribal prosecutions. The author proposes that Congress condition the recognition of tribal sovereignty on a requirement that Indian tribes provide adequate constitutional and criminal safeguards. Professor Fletcher concludes that Congress has the constitutional
authority to untie the hands of Indian tribes and permit them to once more enforce criminal laws against non-Indians in Indian Country and stop the epidemic of violence against Indian women.

The American Constitution Society for Law and Policy (ACS) is one of the nation's leading progressive legal organizations. Founded in 2001, ACS is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. Our mission is to promote the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. For more information about the organization, which has established student chapters at over 160 law schools around the country and lawyer chapters in 30 cities, please visit, www.ACSLaw.org.

The views of the authors are their own and should not be attributed to ACS. This Issue Brief is available online at www.acslaw.org/ node/8437.

Interior Secretary Salazar Promises to Address Crime in Indian Country

I was a little hesitant about Ken Salazar being Interior Secretary because of his less than stellar record for protecting the environment, but it looks like he's on the same page as other parts of the Obama Administration on crime in Indian Country.

Here's an excerpt from an AP article on the subject. It's worth reading the whole article, here.

By CARSON WALKER
ASSOCIATED PRESS WRITER

SIOUX FALLS, S.D. -- As the Obama administration sets out its agenda, tribes are wondering how the White House will handle the high crime rate on many of the nation's American Indian reservations.

New Interior Secretary Ken Salazar says quelling lawlessness is among his top priorities and that he hopes to have a plan in place by year's end.

"This is a pressing enough issue that it is one of those first-tier issues for us," Salazar said during a recent interview.

"We know the problems that are out there. We know the levels of violence and crime that we're seeing in reservations all across the country."

Salazar said the first task is a review of the law enforcement situation and a determination of what resources are available. Then Interior will collaborate with other agencies to develop a plan, he said.

"I think it will involve the Department of Justice, it will involve tribal authorities, but we're not there yet," Salazar said.

"It's a problem crying out for a solution."

The article also states that the recent Bureau of Indian Affairs police surge on Standing Rock this year resulted in 700 arrests the first month, and then dropped off to 300, and that people started to feel safer. At the end, after the "surge" is over, the reservation will have a total of 13 officers, 4 more than before the surge. Well, it's a start.

Good Article on Oliphant

If you've ever wondered about the source of the jurisdictional maze on Indian reservations that often prevents people like rape victims from getting justice, look no farther than a case commonly referred to as "Oliphant."

Today, there is a very good article, Blackfeet want remedy for Oliphant v. Suquamish, on Indian Country Today that does a good job of describing how that case came about.

Below is a long excerpt from that article:

Oliphant indicated that only Congress could give tribes the power to try and punish non-Indians in their tribal justice systems. The case arose on the Port Madison Indian Reservation in Washington state. Tribal police arrested two non-Indians during the Suquamish’s annual Chief Seattle Days celebration. Mark David Oliphant was charged with assaulting a tribal officer and resisting arrest. Daniel Belgarde was arrested and charged with recklessly endangering another person and injuring tribal property.

The tribal code, adopted in 1973, covered a variety of offenses from theft to rape. It extended the tribe’s criminal jurisdiction to Indians and non-Indians. Both men filed a writ of habeas corpus challenging the tribe’s jurisdiction over them. The U.S. District Court for the Western District of Washington and the 9th Circuit Court of Appeals denied the petitions. When the case reached the Supreme Court, the tribe argued that it had inherent powers of government over the Port Madison Indian Reservation. The tribe did not claim that these powers arose from treaties or congressional legislation. At the time, of the 127 reservation court systems that exercised criminal jurisdiction, 33 purported to extend that jurisdiction to non-Indians. Twelve other tribes had enacted ordinances that would permit the assumption of criminal jurisdiction over non-Indians.

The court, in reaching its decision, reviewed the history of the tribes through its treaties and congressional statutes. Overall, the court interpreted tribal sovereignty as limited by the U.S. government’s power to protect them. In return for this protection, tribes lost the power to exercise control over non-Indians in criminal matters. While the court acknowledged that this ruling leaves the problem of crime on Indian reservations committed by non-Indians unresolved, the court clearly pointed to Congress to remedy the situation.

To date, several bills have been proposed to address the jurisdictional maze on Indian reservations, but none have become law. Similarly, many tribes have lobbied to overturn Oliphant through national organizations such as the National Congress of American Indians and petitions to members of Congress. Yet, Oliphant stands like an evil spirit over reservation criminal justice systems.

Last month, Senator Byron Dorgan, D-N.D., chairman of the Senate Committee on Indian Affairs, introduced a draft for the Tribal Law and Order Act. This bill, if enacted, would make incremental steps to an Oliphant remedy in the following areas: It would increase tribal courts ability to sentence offenders to up to three years imprisonment and up to $15,000 in fines from the current limits of one year of incarceration and $5,000 in fines; it would increase funding for law enforcement and tribal courts; and it would set up a Law and Order Commission to study jurisdiction over crimes committed in Indian country and the impact of that jurisdiction on the investigation and prosecution of Indian country crimes and residents of Indian land. One goal of the commission would be to consider how to simplify jurisdiction in Indian country. The commission would have two years from the enactment of the legislation to issue a report to Congress.

As you can see, the Dorgan bill is only a first, and rather small, step, but at least the problem is being taken seriously. Hopefully, well see better legislation after the commmission does further study of the issue.

Missing Standing Rock Teens Found Dead

I posted this a couple of weeks ago. Unfortunately, they were found dead last week. The funeral was last weekend. The car they were in was found abandoned, and their bodies were about a mile from each other. My condolences to their families. Unfortunately tragedies like this are all too common on reservations. Nobody is sure exactly what happened to them.