Group Argues That Tribal Court Has No Jurisdiction Over Non-Indians

Fairfield Sun Times

Tuesday, July 23, 2013


doc51eed15e6f6d8476492457DENVER, CO –  A nationally known, nonprofit, public-interest law firm with decades of experience addressing constitutional and legal issues as to American Indians today urged the U.S. Court of Appeals for the Ninth Circuit to uphold the holding of an Arizona federal district court that a Navajo District Court has no jurisdiction over non-Indians in a civil lawsuit filed for allegedly tortious conduct on an Arizona highway.  Mountain States Legal Foundation (MSLF), which had been urged to file a brief by the tribal court but whose arguments were rejected, urged the appeals court to uphold the federal district court’s ruling that the tribe lacks jurisdiction.  In August 2012, the federal district court ruled that the Navajo tribal court has no jurisdiction over the non-Indians sued in the case.  MSLF, which has been involved for decades in state and federal courts with regard to the authority of tribal courts over non-Indians and American Indians from other tribes, relied on U.S. Supreme Court and Ninth Circuit Court of Appeals rulings in arguing that the appellate court should uphold the lower court’s ruling.

“The highway is alienated, non-Indian land, no treaty or statute allows the Tribe to govern non-Indian conduct there, and no exception to these general rules applies,” said William Perry Pendley, president of MSLF.

In September 2004, an automobile/tour bus accident occurred within the exterior boundaries of the Navajo Nation on U.S. Highway 160 near Kayenta, Arizona.  The tour bus passengers had stayed overnight at a hotel on Navajo Nation land, and the following day the bus, driven by Russell J. Conlon, left the hotel.  As it proceeded westward on Highway 160 the bus collided head on with a 1997 Pontiac that contained two members of the Navajo Nation.  One Navajo passenger was killed and the other passenger was injured.  In December 2006, relatives and the survivor filed a lawsuit for allegedly tortious conduct, seeking compensatory and punitive damages, against the tour bus owners, operators, driver, and insurance company in the District Court of the Navajo Nation for the Kayenta District.

Those sued were all non-Indians; therefore, they filed a motion to dismiss the lawsuit in the Navajo District Court, alleging that the court lacked subject matter jurisdiction.  The District Court entered an Order denying the motion and ruled that it had jurisdiction.  Those sued then filed a Petition for Writ of Prohibition with the Navajo Supreme Court asking that the Navajo Supreme Court bar the District Court from proceeding with the case.  In March 2010, the Navajo Supreme Court issued an Order asking that MSLF and others file amicus curiae briefs; MSLF filed the sole brief in April 2010.  The case was argued in May 2010 and decided in September 2010.

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system freedom.  Its offices are in suburban Denver, Colorado.

Tribes in Western U.S. Use Water to Assert Sovereignty

The Confederated Salish and Kootenai Tribes in Montana stand to become the first tribes in the country to own a major hydroelectric dam. In Colorado, tribes are managing parts of hydro projects. All are examples of tribes regaining control of resources on their land. Aspen Public Radio’s Marci Krivonen reports.

Credit Marci KrivonenThe Kerr Dam in Northwest Montana was built in the 1930's on the Flathead Indian Reservation. It's been owned by non-tribal companies since it was built.

Credit Marci Krivonen
The Kerr Dam in Northwest Montana was built in the 1930’s on the Flathead Indian Reservation. It’s been owned by non-tribal companies since it was built.


July 15, 2013

Aspen Public Radio

In Colorado’s southwest, the Ute Mountain Ute tribe co-manages part of the Dolores Water Project. And, near Durango, the Animas/La Plata project is partially managed by the state’s two tribes. Ernest House directs the Colorado Commission of Indian Affairs.

“Not only do these water projects strengthen tribal sovereignty, but they also solidify a treaty obligation to the Utes here in Colorado. I think that by the tribe’s involvement in a lot of these projects, it provides a very important tool for future economic development, especially, specifically, water,” he says.

While the project is different, the goals are similar in Montana. When the tribes take over the dam there, they say, their sovereignty will be strengthened.

Jordan Thompson of Energy Keepers Inc. stands high above the Kerr Dam outside of Polson, Montana. The tribes in this area are preparing to take over the hydro project in 2015.

The massive Kerr Dam in Montana is near snowcapped mountains, close to ancient buffalo hunting grounds. Emerald green water violently sloshes over the lip of the dam and into the Flathead River. To say the area’s beautiful, is an understatement.

A 19th century treaty created the Flathead Indian Reservation, and later, white settlement brought agriculture. The massive dam was built on tribal land by a local power company in the 1930’s to quench the thirst of newly planted farms.

“This is a place of great spiritual significance for the tribes, and so when the dam was being built, they really resisted, they were trying to not have that dam built,” says Jordan Thompson.

Thompson’s with the tribally-run company that’s preparing to take over ownership of the dam. Despite tribal protests in the 30’s the dam was built and has been producing electricity ever since..

“There were just a bunch of people who built it, over 1200 people at one point. Ten tribal members were killed during the construction of it. It was built because the tribes were just powerless to do anything to stop it,” Thompson says.

Over the years, the dam supplied millions of dollars worth of power. The tribes received a small portion, as rent. Fish habitats were damaged, as the dam continued to generate electricity.

Now, the dam is about to change hands. A treaty signed in 1985 transfers ownership of the dam to the Salish and Kootenai.

“This is significant because it’s an assertion of the tribes sovereignty over the resources they’ve used for their entire existence,” says Sarah Bates with the University of Montana.

She studies water, natural resources and tribal lands. She says what the Salish and Kootenai are doing is a model for other tribes in the U.S.

“It’s happening around the country, this is something that tribes have the capacity to step up and play not just a stakeholder role, but actually an owner and management role. When they aren’t just participants in a process, but actually gain authority over those facilities, that’s a major step forward in asserting and realizing their sovereignty.”

Tribes in Oregon and New York state are now attempting to gain control of hydroelectric projects.

The 1000 foot boardwalk takes you to an overlook of the Kerr Dam, which stretches 540 feet across and 200 feet high.

The Kerr Dam is run by the company PPL Montana and the tribes are still negotiating the purchase price. PPL Montana values the dam at about $51 million, while the tribes say the number is closer to $16 million. Once the issue is resolved, tribal members plan to take over the dam in September of 2015.

This story is the result of an environmental fellowship put on by the Institutes for Journalism and Natural Resources.

Native American tribes’ lawsuit could decide who controls Senate in 2015

By Jordy Yager – 07/16/13

A high-profile lawsuit on the voting rights of Native Americans could help determine control of the Senate in the next Congress.

A group of 16 Native Americans, nine of whom are military veterans, is waging a protracted legal battle against Montana’s Democratic secretary of State and county administrators, arguing for improved access to voter registration sites.

The case will be significant for Democrats in 2014 as they vie to keep control of the upper chamber by holding retiring Sen. Max Baucus’s (D-Mont.) seat. Republicans need to pick up six seats to win back control of the Senate.

The litigation is moving forward at the same time as a recent Supreme Court decision that no longer requires a number of jurisdictions to get advance federal permission in order to make changes to their election laws.

The three Montana counties now being sued have historically lost Section 2 Voting Rights Act cases. However, for the state’s overwhelmingly poor and geographically isolated Native Americans — who vote predominantly for Democrats — the Montana fight is deeply personal. Tribal leaders say it is an issue of fundamental fairness.

Image from Think Progress

Image from Think Progress

An estimated 50,000 Native Americans are eligible to vote in Montana. Many of them live on reservations throughout the sprawling 550-mile-wide state, which means driving more than 100 miles for some to reach polling sites established long before Native Americans got the right to vote.

It’s the distance equivalent of voters in Washington, D.C., having to drive to Gettysburg, Pa. and back to complete their late registration forms or cast early in-person absentee ballots.

If the state allowed more voting stations, known as satellite offices, on reservations, more Native Americans would have the ability to vote by a factor of 250 percent, a group supporting the lawsuit argues.

This group, which is providing strategic and financial support to the plaintiffs, includes Four Directions, a nationally known voting rights organization, and Tom Rodgers, the Native American lobbyist who blew the whistle on former lobbyist Jack Abramoff for charging Native American tribes exorbitant fees on lobbying.

Together, they have spent about $335,000 waging the legal battle, which began in the months leading up to the 2012 election. They have also offered to pay the cost of establishing the satellite offices, which could run up to $8,000 apiece for each location.

The Department of Justice, Montana tribal leaders, the ACLU and the National Congress of American Indians have all backed the plaintiffs in the legal dispute.

The origin of the lawsuit began when Rodgers, a member of Montana’s Blackfeet tribe, received a phone call that U.S. Army Spc. Antonio Burnside, a fellow Blackfeet member whose tribal name was Many Hides, was killed last year in combat on Good Friday in Afghanistan.

In late April 2012, after raising the money to help celebrate the soldier’s life, Rodgers said a feeling of rage overcame him.

He noted that Native Americans have the highest percentage of military enlistees of any ethnic group.

“Some of the poorest of the poor can fight a war and die for you on a hellish moonscaped mountainside and then when they return home in a flag-draped coffin, you seek to diminish their native brothers’ and sisters’ ability to vote. Young dead soldiers do not speak. They leave us their deaths. It is us who must give them meaning by remembering them,” Rodgers said. “We got tired of the dark lies in rooms of white marble. Now the plaintiff warriors will take their faith in justice by acting with justice to other rooms of white marble: the 9th Circuit Court of Appeals and Congress.”

Sen. Jon Tester (D-Mont.), who won reelection last year, said that poverty and unemployment levels on reservations are higher than in the rest of the state, and that many Native Americans don’t have access to transportation or can’t take time off from work.

“Native Americans are about 6 percent of the population, so it’s absolutely significant,” said Tester.

“Everybody who’s entitled to vote, we ought to give them every opportunity to vote,” Tester said. “We shouldn’t be limiting participation, we should be encouraging it.”

The suit might have an impact beyond Montana as well. If it goes as far as the Supreme Court, major Native American populations in Arizona, New Mexico, North Dakota, South Dakota, Nevada, California, Minnesota, Washington, Oregon and Alaska could see their voting rights greatly expanded or restricted.

Democrats are facing challenging elections in four of those states next year.

Native Americans have played a crucial role in electing Democratic senators, including Tester and Sens. Tim Johnson (S.D.), Maria Cantwell (Wash.), Al Franken (Minn.), Heidi Heitkamp (N.D.) and Mark Begich (Alaska.). All have won elections by fewer than 4,000 votes.

But for now, Montana — where Democrats are scrambling to find a candidate following ex-Gov. Brian Schweitzer’s surprise decision not to run — is the central battleground.

Montana Secretary of State Linda McCulloch (D) says she supports the Native Americans’ demands, but that the lawsuit is misdirected.

At a video-recorded meeting with the tribes earlier this year, tensions between the two sides were palpable as they failed to negotiate a compromise after a nearly hour-long discussion.

“I care that the people at this table have equal access, and what is in my power as secretary of State to do, I can do,” said McCulloch. “What I do not have the authority over is establishing county clerk offices. That authority belongs to the county governing body, the county commissioners.

“We will support and assist any county whose governing body has made a decision to open a second county clerk election office that can offer services such as registering voters and issuing absentee ballots. You have my unwavering commitment to that.”

A spokeswoman for McCulloch, citing the ongoing litigation, declined to comment for this article.

The plaintiffs and tribal leaders rejected McCulloch’s remarks. They said Montana’s secretary of State should join the tribes by officially standing with the plaintiffs and leading the county commissioners to create the satellite offices.

J. Gerry Hebert, who worked on voting rights issues for more than 20 years in the Department of Justice’s Civil Rights Division, doesn’t agree with McCulloch’s assessment either, saying that this type of case falls directly within her office’s jurisdiction.

“The secretary of State is the chief election officer and as such has the overall responsibility to ensure that all the state laws are complied with,” said Hebert, now the executive director of the Campaign Legal Center. “And in this case, which is typically the case, a plaintiff will file a lawsuit and bring it against both local and state election officials, because it is both of their responsibilities.”

Although the issue has been in the local press for nearly a year, the Montana Democratic Party has not weighed in on the lawsuit, saying only that it supports greater access to polling sites and will continue aggressive “get out the vote” efforts.

“Increasing access to the ballot box on reservations and throughout Montana has always been a priority,” said Chris Saeger, a spokesman for the state’s party. “We would welcome any improvements that make it easier for Montanans to have their say in elections.”

“The Democratic Party of Montana has said we have done what we could,” Rodgers said. “But hope has two beautiful daughters. Their names are anger, for the way things are, and courage, to make a difference.”

Carole Goldberg, a professor and vice chancellor at UCLA’s School of Law who has dealt extensively with Native American legal rights, said discrimination is widespread in many states with Native populations.

“There are persistent patterns where states have criminal jurisdiction on reservations and the counties that exercise this jurisdiction locate their facilities and services in a place convenient for the non-Native population and not the Native populations,” said Goldberg, who has donated to multiple Democratic candidates.

Barring a settlement, oral arguments are expected to begin this fall.

Bill allocates $2M for Montana tribal language preservation efforts

Students at the Nkwusm Salish Immersion School in Arlee concentrate last week during language lessons. The school, founded by four non-Salish speakers to keep the language alive, is 10 years old this fall.

Students at the Nkwusm Salish Immersion School in Arlee concentrate last week during language lessons. The school, founded by four non-Salish speakers to keep the language alive, is 10 years old this fall. Photo: Kurt Wilson/Missoulian

Associated Press

GREAT FALLS – The Montana Legislature created a program to help the state’s Indian tribes develop educational and reference materials to keep their native languages alive as the number of people who fluently speak the languages continues to decline.

Lawmakers allocated $2 million for the Montana Indian Language Preservation pilot program in Senate Bill 342, sponsored by Sen. Jonathan Windy Boy, D-Rocky Boy.

Superintendent of Public Instruction Denise Juneau said Indian Education for All includes a component on preserving cultural integrity, which would include preserving languages.

“There is a need to figure out ways to preserve that language, whether that be through technology or video or dictionaries,” Juneau told the Great Falls Tribune.

The bill allows tribes to use the money to create audio and video recordings, dictionaries, reference materials and curricula. The tribes must demonstrate progress and must supply copies of their work to the Montana Historical Society for preservation and use by the public.

Tribal colleges and historic preservation offices are expected to be involved in the effort.

“This is an amazing gesture,” said Nicholas Vrooman, a Helena historian who is working with the Little Shell tribe on administering the funds the tribe will receive under the pilot project.

Tribes must submit proposals for use of funds by Sept. 30. The money is to be split evenly among Montana’s seven Indian reservations and the Little Shell Tribe, a state-recognized tribe. The project is being overseen by the state Tribal Economic Development Commission, which is attached to the Commerce Department.

The bill was signed by Gov. Steve Bullock on May 6.

Richard Littlebear, president and dean of cultural affairs at Chief Dull Knife College in Lame Deer, said the federal American Indian Languages Preservation Act of 1990 helped spur preservation efforts, but he said competition for federal grant money is intense.

Feds approve 1.4B ton coal deal with Crow Tribe

The company that wants to export coal to Asia through ports in Washington and Oregon has an agreement with the Crow Tribe that would supply more coal than is consumed in the U.S. each year.

cloud-peak-Energy-is-one-of-the-safest-producers-of-coal-in-the-united-statesBy MATTHEW BROWN

June 21, 2013 The Associated Press  



BILLINGS, Mont. — The U.S. government approved plans by a Montana Indian tribe to lease an estimated 1.4 billion tons of coal to a Wyoming company that’s moving aggressively to increase coal exports to Asia, the company and tribe announced Thursday.

The deal between Cloud Peak Energy and the Crow Tribe involves more coal than the U.S. consumes annually.

The Bureau of Indian Affairs’ (BIA) approval allows Cloud Peak to begin exploration work on the Crow reservation.

Cloud Peak has pending agreements to ship more than 20 million tons of coal annually through three proposed ports in Washington and Oregon. Officials in both states oppose the port projects on environmental grounds, but federal officials said earlier this week they planned only limited environmental reviews of the projects.

Cloud Peak CEO Colin Marshall said preliminary work on the so-called Big Metal coal project — named after a legendary Crow figure — has begun. The company says it could take five years to develop a mine that would produce up to 10 million tons of coal annually, and other mines are possible in the leased areas.

The Crow Tribe’s coal reserves are within the Powder River Basin, which accounts for about 40 percent of U.S. coal production. Cloud Peak paid the tribe $1.5 million upon Thursday’s BIA approval, bringing its total payments to the tribe so far to $3.75 million.

Future payments during an initial five-year option period could total up to $10 million. Cloud Peak would pay royalties on any coal extracted and has agreed to give tribal members hiring preference for mining jobs.

The company also will provide $75,000 a year in scholarships for the tribe.

Crow Chairman Darrin Old Coyote said in a statement that the project is a high priority for the impoverished tribe’s 13,000 members. It revives longstanding efforts by the Crow to expand coal mining.

A $7 billion coal-to-liquids plant proposed in 2008 by an Australian company never came to fruition.

The three members of Montana’s congressional delegation — Democratic U.S. Sens. Jon Tester and Max Baucus, and Republican Rep. Steve Daines — issued statements supporting the new agreement. They said it offers a chance to increase job opportunities on the 2.2-million-acre reservation along the Montana-Wyoming border.

Water Rights Tear at an Indian Reservation

Tony Demin for The New York TimesJack and Susan Lake, who support the water bill, at their potato farm on the Flathead Reservation. Mr. Lake’s family moved there from Idaho in 1934.

Tony Demin for The New York Times
Jack and Susan Lake, who support the water bill, at their potato farm on the Flathead Reservation. Mr. Lake’s family moved there from Idaho in 1934.


By Jack Healy, The New York Times, April 21, 2013

RONAN, Mont. — In a place where the lives and histories of Indian tribes and white settlers intertwine like mingling mountain streams, a bitter battle has erupted on this land over the rivers running through it.

A water war is roiling the Flathead Indian Reservation here in western Montana, and it stretches from farms, ranches and mountains to the highest levels of state government, cracking open old divisions between the tribes and descendants of homesteaders who were part of a government-led land rush into Indian country a century ago.

Tony Demin for The New York TimesA billboard at an entrance to the Flathead Reservation in western Montana, where a bitter dispute has divided the residents.

Tony Demin for The New York Times
A billboard at an entrance to the Flathead Reservation in western Montana, where a bitter dispute has divided the residents.

“Generations of misunderstanding have come to a head,” said Robert McDonald, the communications director for the Confederated Salish and Kootenai Tribes. “It’s starting to tear the fabric of our community apart.”

Dependable water supplies mean the difference between dead fields and a full harvest throughout the arid West, and the Flathead is no exception. Snowmelt flows down from the ragged peaks to irrigate fields of potatoes and wheat. It feeds thirsty cantaloupes and honeydew melons. Cutthroat trout splash in the rivers. Elk drink from the streams.

So when the government and the reservation’s tribal leaders devised an agreement that would specify who was entitled to the water, and how much they could take from the reservoirs and ditches, there was bound to be some discord. But few people expected this.

There have been accusations of racism and sweetheart deals, secret meetings and influence-peddling in Helena, the state capital. Lawsuits have been threatened. Competing Web sites have sprung up. Some farmers have refused to sell oats to those on the other side of the argument.

For months, local newspapers have published letters from people who support the water deal — known as a compact — and from opponents who see it as a power play by the tribes to seize a scarce and precious resource from largely non-Indian farmers and water users.

The proposed compact is 1,400 pages long, a decade in the making and bewilderingly complex. Essentially, it helps to lay out the water rights of the tribe and water users like farmers and ranchers. It provides $55 million in state money to upgrade the reservation’s water systems. And it settles questions about water claims that go back to 1855, when the government guaranteed the tribes wide-reaching fishing rights across much of western Montana.

The tribes say they have given up claims to millions of gallons of water to reach the deal. They say it is the only way to avoid expensive legal battles that could tie up the state’s western water resources in court for decades to come.

But the deal has rankled farmers and ranchers on the reservation, who fear they could lose half the water they need to grow wheat and hay and to water their cattle. Under the compact, each year farmers and ranchers would get 456,400 gallons of water for every acre they irrigate. Tribal officials say that is more than enough, but farmers say the sandy soil is just too thirsty. They fear they will be left dry.

“They’ve literally thrown us under the bus, and we’ve had to fight this thing ourselves,” said Jerry Laskody, who has joined a group of farmers and ranchers in opposing any deal. The group has held meetings and taken out advertisements to spread the word.

As visitors drive onto the reservation, a bright orange billboard declares, “Your Water & Property Rights Are in Jeopardy.” The pact has also angered some conservative residents around the valley, who accuse the tribe and Montana officials of colluding in what they characterize as legalized theft.

“There’s a lot of coercion, a lot of threats,” said Michael Gale, who retired here looking for beauty, and has spent hundreds of hours attending meetings, writing letters and poring over documents in the hope of killing the compact. “Like they always say: Whiskey’s for drinking. Water’s for fighting.”

At the heart of the dispute is a question that has haunted the United States’ relations with indigenous people for centuries and provoked countless killings, dislocations, treaties and court battles: Who has a claim to the land and its resources?

It is an emotional issue, especially here.

In the early 1900s, the federal government opened up millions of acres on the Flathead and other reservations to white homesteaders, a decision that echoes today across the Great Plains and the West. Tribal members were allotted specific parcels, and the rest was put up for sale. Homesteaders came in droves, to stake farms, open sawmills and grocery stores, plant wheat and build roads.

Within a decade, settlers outnumbered tribal members on the Flathead. Today, resorts and million-dollar homes line the shores of Flathead Lake, the reservation’s largest body of water. Of the reservation’s more than 28,000 residents, about 7,000 are American Indians, according to census data.

“We are minorities on our homeland,” said Mr. McDonald, the communications director.

Over the years, tribal members married homesteaders’ children. Families blended. Children from Salish and Kootenai families attended the same schools as those who had moved in from Missoula or Washington State. Residents say that today, the bonds and friendships are wide and deep.

Until they are not. A report by the Montana Human Rights Network once described the reservation as home to “the most aggressive anti-Indian activity in Montana” because of its patchwork settlement. Conflicts have flared over tribal control of a major dam on Flathead Lake, and over whether tribal police officers should be able to arrest or detain non-Indians on the reservation. In the late 1980s, a dispute over hunting and fishing regulations led to screaming matches and death threats.

“They painted their fence posts orange and let it be known they’d shoot you if you walked on their land,” said Joe McDonald, who for nearly three decades was the president of Salish Kootenai College here on the reservation.

This time, the fight appears bound for court. After years of public meetings and deliberation, the full compact finally arrived in the Montana State Capitol this spring. It was supported by the state’s first-term governor, Steve Bullock, a Democrat, as well as by some Republican lawmakers from the area. But with farmers showing up to denounce the compact measure, the Republican-led Legislature killed the bill.

For Susan and Jack Lake, that decision cast a shadow over their potatoes. Mr. Lake’s family moved here from Idaho in 1934. Today, the family farms 1,000 acres, 85 percent of it irrigated. They grow seed potatoes that are ultimately used to make chips and instant mashed potatoes.

The Lakes agonized over the water deal, but eventually decided to support it. They worried about losing water, but said that going to court against a tribe with older, stronger claims to the reservation’s water supplies felt like a suicide mission.

Sometimes, Ms. Lake said, it just felt absurd: so many years of tangled fights over something so simple and pure.

“It’s beautiful,” she said. “You turn it on and make things grow.”