Yakima, Klickitat counties concerned about Yakama Nation retrocession petition

By Kate Prengaman, Yakima Herald-Republic

As the federal government moves toward approving the Yakama Nation’s retrocession petition — which returns civil and criminal jurisdiction over tribal members on the reservation from the state back to the tribe — officials in Yakima and Klickitat counties are concerned that some questions remain unanswered.

In Klickitat County, commissioners want to know how retrocession would affect a long-standing boundary dispute, and officials in Yakima County want to ensure there’s a formal plan detailing how tribal and local law enforcement agencies will work together once the retrocession is approved.

The concerns arose, in part, because retrocession is rare. The Yakama Nation was the first tribe to propose it since state lawmakers approved the process in 2011 and Gov. Jay Inslee signed the retrocession proclamation in January 2014.

The Yakama Nation’s leaders and Inslee praised it as a strong step toward greater sovereignty for the tribe to regain authority over its people.

It’s known as retrocession because it returns certain criminal and civil authorities to the tribal government that the state took over in 1963 under a federal law known as Public Law 280.

Once approved by the Secretary of the Interior, tribal police and tribal courts would have jurisdiction over issues involving tribal members on the reservation while the state would retain its authority over all criminal cases involving nontribal members.

It sounds straightforward, but the details get complicated quickly.

Since the 1.2 million-acre reservation is actually a patchwork of tribal trust land, incorporated towns and lands within the reservation that are owned by nontribal members, it’s likely to create logistical challenges for law enforcement.

Yakima County Commissioner Kevin Bouchey said the county, along with the cities of Toppenish and Wapato, are worried that the petition might be approved before law enforcement protocols are agreed upon.

“We’re not opposed to the petition, we just want to figure out the details before the Secretary of the Interior signs off on it, rather than after the fact,” Bouchey said. “It comes down to public safety for tribal members and nontribal members on the reservation and we need an established working relationship to do that.”

Klickitat County Commissioner David Sauter echoed Bouchey’s concerns. Development of this type of formal agreement between law enforcement agencies is encouraged in the state’s retrocession law, but is not required.

Bouchey said the county has drafted a letter expressing its concerns to the Bureau of Indian Affairs (BIA), which it plans to send this week.

A spokeswoman for the federal agency confirmed in an email that the petition is under review by the BIA with input from the Department of Justice, but did not offer any details. Request for comment from the Yakama Nation’s Tribal Council was not returned.

Klickitat County leaders sent their letter to BIA Secretary Ken Washburn in April to request clarification on how the governor’s proclamation defines the exterior boundaries of the Yakama Reservation. Sauter recently traveled to Washington, D.C., to discuss the issue with the agency and Washington’s elected officials as well.

The county’s concern centers on a disputed 95,000 acres of land to the southeast of Mount Adams that is known as “Tract D.” It includes Glenwood, an unincorporated community of about 700.

The Yakama Nation has long claimed the land as within its boundaries, including in its published maps. But Klickitat County officials say the land has clearly been in the county’s jurisdiction under state and federal law for more than 100 years.

The concern for Glenwood residents is that the retrocession proclamation says it applies to everything within the reservation’s boundaries, and the county wants reassurance that the state and federal interpretation of those reservation boundaries doesn’t change, said Klickitat County Prosecuting Attorney David Quesnel.

“There’s been issues going on for years, like the disputes over liquor licenses a few years ago, because the tribe has taken the position that Tract D is within its exterior boundaries,” Quesnel said. “We want to make it abundantly clear that Tract D would not be included.”

Glenwood-area residents told the Goldendale Sentinel that they didn’t want to have to go to the Yakama Nation’s Tribal Court to get divorced or to deal with traffic tickets or criminal charges.

But those concerns appear unfounded because the retrocession proclamation only returns jurisdiction over tribal members to the tribe, it doesn’t give the tribe authority over nontribal members, said Yakima County civil prosecutor Terry Austin.

The exceptions would be for civil matters such as domestic relations or juvenile delinquency for families in which one parent is a tribal member. Then, either the tribal court or state courts could decide the case.

As far as the boundary dispute, a spokeswoman for the governor’s office said the retrocession proclamation deals only with jurisdiction and does not in any way change existing reservation boundaries. In fact, the governor does not have the authority to change reservation boundaries, which is a federal issue.

In a 2000 federal court case over the Yakama Nation’s attempts to ban alcohol sales on the reservation, the state argued that “Tract D was not historically considered to be within the surveyed boundaries of the Yakama Reservation” and the state does not recognize it as being within the exterior boundaries.

The court later threw out the tribe’s attempts to ban alcohol sales in the reservation’s incorporated towns where a majority of the nontribal residents live, limiting the tribe’s authority to regulate nontribal members.

The retrocession petition also keeps existing limits on the tribe’s authority over reservation residents who are not tribal members, but expands its ability to self-govern. Once the details get worked out, county officials say they support that.

“They have a right to self-regulation and we’re not trying to interfere with that; we just want clarification,” Quesnel said.

Transparency a focus of North Dakota tribal election

By Josh Wood, Associated Press

NEW TOWN, N.D. (AP) – In just a few years, oil development has transformed North Dakota’s Fort Berthold Indian Reservation from a place where unemployment was rampant to an area where open job listings drone on for minutes on the local radio station between drum songs and public service announcements.

Tribal business council chairman Tex Hall has been at the helm of the Mandan, Hidatsa and Arikara Nation, known as the Three Affiliated Tribes, for the bulk of the boom. Hall, also former president of the National Congress of American Indians, previously served as the tribes’ chairman from 1998 to 2006 before being re-elected for a third term in 2010.

On Sept. 16, the tribes will hold a primary election to determine the two candidates who will meet in the Nov. 4 election for chairman. Out of 10 candidates who filed to run, half were disqualified by the election board, though several are appealing those decisions.

The tribe’s spokeswoman did not respond to several requests for an interview with Hall about the election.

Many of his opponents in the chairman’s race, including tribal attorney Damon Williams and tribal business council member Ken Hall, are calling for more openness in tribal government.

“The people are looking for a change in leadership, they really are,” Ken Hall said. “They want transparency, they want to know and they have the right to know.”

Some are wary of the potential environmental impact of rapid oil development and also question the personal business dealings of council members.

Williams said revenue has steadily increased over the past several years, but no one knows where the money’s going.

“I think that’s a question every enrolled member has to ask,” he said.

Fort Berthold produces more than 300,000 barrels of oil a day – nearly one third of North Dakota’s total production and a figure that would rank the reservation among the top oil producers in the nation if it were a state.

Marcus Levings, a former chairman who was defeated by Hall in 2010, is one of the candidates appealing his disqualification from the primary. Though he believes the tribe does need to be more transparent and develop a plan for its newfound wealth, he acknowledged that problems were likely inevitable.

“The council have done, what I believe any council would have done with new money – they purchased and they approved development that came in front of them,” he said. “Now is the time for a long-range plan that we knew how to do and we’ve always done but we had no money.”

Like most of the tribes’ 14,000 or so enrolled members, Charles Hudson lives off the reservation. It is almost impossible to know what is happening on Fort Berthold, he said.

“I’m looking for a tribal chairman and council that takes a more comprehensive approach to the needs of our people: education, health, the environment and economic development, rather than throwing all our eggs into oil development as it appears now,” Hudson said.

Professor Breaks Down Sovereignty and Explains its Significance

Shaawano Chad Uran, Indian Country Today Media Network
Sovereignty is one of those terms we toss around without much thought. It is an important word within contemporary American Indian discussions. The term itself draws from legal, cultural, political, and historical traditions, and these traditions are connected to both European as well as Indigenous philosophies in complicated ways. A shared understanding of the term would be helpful to both local people working on their own issues, and working with surrounding communities.  Rather than defining sovereignty as a term, what I hope to do here is acknowledge aspects of sovereignty that have become sticking points as Indigenous people assert their own self-determination. I won’t go into Indigenous philosophies about sovereignty because it’s probably none of your business.

Sovereignty is a type of political power, and it is exercised through some form of government. For the sake of simplicity, I will focus on the United States and its treaty federalism.  In the US, there are basically three types of sovereigns:

–The US Federal Government

–Each of the 50 State governments

–Tribal governments

The US Federal government is sometimes called the supreme sovereign of the United States. Its powers are defined and limited by the US Constitution. It represents the largest focus of political, economic, and legal power, and has some (but not absolute) power over other sovereigns within the US.  As a constitutional democracy, its power is supposed to come from the People—its citizens.

The State governments derive much of their sovereign power from the US Federal government. The US Constitution explicitly grants States residual powers—those powers that are not explicitly given to the Federal government. The Tenth Amendment to the US Constitution reads,

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Tribes have sovereignty that is obviously older than the US Constitution. Tribes had their own form of government, and many had legal codes written into their own documents, their own stories, their own practices, and their own memories.  Tribal sovereignty is derived from the people, the land, and their relationships; tribal sovereignty was not a gift from any external government. Tribal sovereignty is not defined in the US Constitution. But anyone at all familiar with the history of US Indian Policy knows that many limitations—as well as possibilities—for tribal sovereignty have been defined over time.

Tribal sovereignty is recognized in the US Constitution.  Article VI, Clause 2 (sometimes called “the supremacy clause”) of the US Constitution says:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

This clause is why American Indian treaties are so important to understanding sovereignty. Treaties are agreements made between sovereign entities—usually called nations. The US has signed several hundred treaties with Indigenous nations and other nations around the world. International relations occur through, and are often defined by, international treaties. Therefore, by signing a treaty, both sides are showing that they recognize the sovereignty of the other, and the treaty spells out how each nation will relate to the other as nations.

The relationship between many tribes and the US Federal government is based on treaties. The US Federal government did not have treaties with the individual States. The supremacy clause recognizes that tribal nations and other international laws are just as powerful as the US Constitution itself. This also means that the sovereignty of tribal nations is different—and in many ways higher—than the sovereignty enjoyed by individual States

Tribal sovereignty was immediately (if inconsistently) recognized by Europeans as they explored the hemisphere. Christopher Columbus himself wrapped his descriptions and interactions with “Indians” in the language of nationhood.  This wasn’t progressive or respectful, though.  It was a holdover from the Inquisition and other efforts to destroy and/or exploit nonchristian nations.

We all should know by now that Columbus was genocidal. Despite being a violently domineering slave trader, usurper, and land thief, the fact that he used the language of nationhood gives us a clue that sovereignty does not need to be absolute for it to be real, or legal, or recognized by other nations.

In fact, we can look to the Roman philosopher Cicero to explain how national sovereignty may be recognized despite a very unequal power relationship.  He said:

“Every nation that governs itself, under whatever form, without dependence on any foreign power, is a sovereign state. Nations or states are body politic, societies of men united together for the purpose of promoting their mutual safety and advantage by joint efforts of their combined strength.”

At first, this seems like the usual understanding of sovereignty as meaning absolute power, or at least absolute independence. This is the type of sovereignty celebrated by US patriots, anti-treaty rights activists, the TEA Party, and others who think that “might makes right” is a good idea. However, Cicero continues:

“We ought to include as sovereign states those who have united themselves with another more powerful by an unequal alliance, in which, as Aristotle says, to the more powerful is given more honor, and to the weaker more assistance. Provided the inferior ally reserved to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state that keeps up an intercourse with others under the authority of the law of nations.”

The fact that other nations lack power, or may be dependent upon other nations, does not detract from their status as sovereigns. The US Supreme Court once defined tribes as “domestic dependent nations,” but this does not prevent the use of the term, “sovereignty,” to describe tribes. The treaties between tribes and the US Federal government are recognized as being equal to the US Constitution as the supreme law of the land.  Even the ancient philosophies of Europe demand legal, ongoing treaty relations between nations that may be unequal in power.

Thus, absolute power is not necessary for sovereignty to exist. In fact, the US Constitution limits the sovereignty of the US, not only by recognizing the co-supremacy of international treaties, but by delegating some powers to the States.  Most importantly, the US Constitution has recognized that the citizens themselves hold residual powers, or all those powers not granted to the State and Federal governments.

This is similar to a feature of American Indian treaty law, where those powers—those rights—not explicitly given up to the US Federal government are still held by tribes. Here is where we find the inherent sovereignty of tribes, and this is where many tribes have exercised their self-determination in ways like language revitalization, treaty rights, and Indigenous governance.

Absolute independence is also not necessary for sovereignty to exist. After all, how “independent” is the US? Does the US have energy independence? Trade independence? Manufacturing independence? Technological independence? Military independence? Resource independence? Agricultural independence? Economic independence? In many respects the US is dependent upon other nations for these things, but I rarely hear anyone doubt the sovereignty of the US.  While the economic situation for most tribal nations is dire, we have to remember that tribal economies were based on access to land. Lands were ceded to the US by treaty in exchange for tribal economic security and other provisions.  It is ridiculous to blame tribes for economic dependence, when that dependence arose from loss of the very lands that allow Americans to enjoy economic success, especially since holding 97 percent of the land base is still somehow not enough to support the desires of the US: they’re still after our lands and resources.

So what is the defining aspect of sovereignty? It’s not independence. It’s not absolute power. The defining aspects of sovereignty are the international relationships carried out as sovereign nations. Treaties are the most obvious evidence that one nation recognizes or acknowledges the sovereignty of another nation. This is why it is possible to say that the United States, as a nation, was not born in 1776 with the Declaration of Independence, or in 1789 with the establishment of the Constitution. No, the US became a nation with the Treaty of Paris in 1783. Put another way, the US only became a legitimate, recognized nation by entering into a treaty relationship with other recognized sovereign nations.

So next time someone says that Indigenous nations are “only quasi-sovereign” or “only domestic dependent nations,” kindly teach them about law, history, and philosophy. And if that someone is a Governor, tell them they’re just jealous of the inherent superiority of tribes over states.


Shaawano Chad Uran (Shaawano.com/Alex Colby)
Shaawano Chad Uran (Shaawano.com/Alex Colby)

Shaawano Chad Uran, a member of the White Earth Nation and professor of American Indian Studies at the University of Washington, received his PhD in Anthropology, concentrating on Ojibwe language revitalization, in 2012 from the University of Iowa. He completed his undergraduate work at the University of Minnesota. Urah has taught at Bowdoin College in Maine, the University of Victoria in British Columbia, The Evergreen State College in Washington, and the University of Washington.

Uran’s research areas are: Indigenous language revitalization, language and identity, American cultural studies, language ideologies, American Indian sovereignty, critical theory, Native American studies, and coloniality. He is also known for applying Indigenous critical theory to zombie films and literature.

He currently lives north of Seattle, Washington.


Read more at http://indiancountrytodaymedianetwork.com/2014/01/03/professor-breaks-down-sovereignty-and-explains-its-significance-152958

Yakamas want to ban pot on 12 million acres of ceded land


By Mike Faulk / Yakima Herald-Republic

January 12, 2014

YAKIMA, Wash. — The Yakama Nation is considering an unprecedented move in its fight against legalized marijuana that could have implications for 10 Central Washington counties.

With a marijuana ban already in place on the Yakama reservation, tribal representatives now say they’ll fight the state to keep marijuana businesses from opening anywhere on ceded lands, which constitute one-fifth of the state’s land mass.

The tribe’s options include suing the state in federal court if no compromise can be reached, Yakama Nation Tribal Council Chairman Harry Smiskin said.

“We’re merely exercising what the treaty allows us to do, and that is prevent marijuana grows (and sales) on those lands,” Smiskin said.

Under the Yakama Treaty of 1855 with the federal government, the Yakama Nation was to have exclusive use of the 1.2 million-acre reservation and maintain fishing, hunting and food-gathering rights on more than 12 million acres of ceded land. The tribe has successfully taken court action against federal and state entities as well as private interests in the past to defend those rights, but most of those cases have been directly tied to the tribe’s access to natural and cultural resources.

“To my knowledge, this would be the first time” the tribe has sought to prevent the implementation of a state law on all ceded land, said George Colby, an attorney for the Yakama Nation.

“The tribe’s stance is if you don’t fight, you don’t get to win,” Colby said.

The tribe expects to file more than 600 objections with the state and federal governments against license applicants located in the 12 million-acre area that includes land in 10 Central Washington counties, Colby said. About 300 of those complaints have already been filed, he added.

The ceded area spans from the Columbia River on the Oregon border to all of Chelan County in the north and from the eastern slopes of the Cascades across the Columbia River to as far west as parts of Whitman County. The area encompasses the cities of the Upper and Lower Yakima Valleys, Wenatchee, Ellensburg, Goldendale and Pasco, although not Richland or Kennewick.

Colby and Smiskin draw comparisons to the tribe’s long fight to keep alcohol off the reservation. They say the tribe has had an equally unpleasant history with marijuana use, and that the plant, which was effectively banned by the federal government through a series of campaigns and legislation in the 1930s, never played a traditional role in Yakama culture.

“Aside from the taxation of marijuana, I don’t see any benefits from it,” Smiskin said.

Moves by the tribal government a decade ago to enforce a 150-year-old alcohol ban on the reservation have been complicated by the fact that most of the property in the cities of Toppenish and Wapato are deeded land owned by nontribal members, including proprietors of bars and stores.

In that case, a 2001 opinion issued by U.S. Attorney Jim Shively in Spokane said that the Yakamas’ ban would probably not be enforceable in cities on the reservation.

In addition to the ban on marijuana businesses, it also remains illegal to possess marijuana for personal use on the Yakama reservation. Colby said the fact that marijuana remains illegal under federal law also entitles them to challenge it on ceded lands.

But the author of the 2012 voter-approved initiative that legalized marijuana, Alison Holcomb, said she doesn’t see a legal basis for the tribe’s opposition to marijuana businesses on ceded lands.

“I think they run into the issue of not having standing to, in essence, bring suit on behalf of the federal government,” said Holcomb, the criminal justice director of the American Civil Liberties Union Washington chapter. “The federal government at this time has shown it has no intention of trying to stop the law.”

In August, the U.S. Justice Department sent a memo to Washington and Colorado saying it would not stop the implementation of laws legalizing the recreational use of marijuana. The federal government’s use of prosecutorial discretion could be rescinded if the states fail to implement a robust system of enforcement to prevent interstate trafficking and access to minors, according to the memo.

In October the state Liquor Control Board established a rule that it would not issue a license to any business located on federal lands, such as a tribal reservation, a federal park or military installation. The rule does not address ceded lands, and on Friday a spokesman said the agency wasn’t ready to comment on that issue.

“The reality is we haven’t seen a lawsuit,” Liquor Control Board spokesman Mikhail Carpenter said. “Until we do, it would be premature for us to comment.”

A spokeswoman for the state Attorney General’s Office was also unable to comment on the issue Friday.

In the coming weeks, the Attorney General’s Office will issue an opinion on whether cities and counties have a right to ban marijuana growing, processing and retail businesses from their jurisdictions. Because the opinion is a response to a Liquor Control Board inquiry specifically related to counties and municipalities, it is not expected to address tribal rights issues.

“Within the reserved area, it’s not even a contest as to whether marijuana is illegal,” Colby said. “Next is the ceded area.”

Holcomb said she supports the tribe’s right to ban marijuana businesses on the reservation. However, she said it’s unfortunate tribal leaders don’t recognize the disproportionate effects national marijuana prohibition has had on minorities in terms of criminal convictions.

Illegal marijuana grows by cartels on reservation lands and federal forest lands are also the result of prohibition, she said.

“U.S. marijuana prohibition is directly responsible for the fact that there are multinational criminal organizations setting up marijuana grows on reservation lands and ceded lands,” Holcomb said. “They pose a danger to members exercising their hunting, gathering and fishing rights in those lands.”

Smiskin said the tribe will continue to put license applicants, the state and federal governments on notice that marijuana businesses aren’t welcome on the ceded lands. He said no entities have approached the Yakama Nation to discuss their stance and potential legal challenge.

“If we can’t come to an agreement, then there is always that potential it’s going to get litigated,” Smiskin said.