From gars@netcom.com Mon Aug 11 12:16:02 1997 Date: Tue, 5 Aug 1997 20:37:43 -0700 From: Gary Night Owl To: Internet Recipients of Wotanging Ikche Subject: Wotanging Ikche--nanews05.032 _ __ _____ __ _ __ ___ ____ _ __ ___ ' ) / / ') / / ) ' ) ) / ) / ' ) ) / ) / / / / / / /--/ / / / ___ / / / / ___ (_(_/ (__/ ( / (_ / (_ (___/ '__/_ / (_ (___/ ' O ____ _ , ___ _ , ___ O o O / ' ) / / ) ' ) / / ' O o O / /-< / /--/ /-- VOLUME 05, ISSUE 032 O o o o o O __/_ / ) (___/ / ( (___, 9 August 1997 O o O KANOHEDA ANIYVWIYA Otapi'sin Atsinikiisinaakssin O o O Es'te Opunvk'vmucvse ni-mah-mi-kwa-zoo-min Aunchemokauhettittea O ( N A T I V E A M E R I C A N N E W S ) This issue contains articles from Big Mountain, Paths-L, NAT-FILM & Native-L lists; Settlers In Support of Indigenous Sovereignty; UUCP email; Newsgroups: alt.native,soc.culture.native Articles appearing have been previously posted for public dissemination and/or permission for inclusion has been secured. Letters of authorization are on file. A list of those granting permission to repost their words in this issue are listed at the end of part A. I thank each of you for allowing your words to be shared with the people. <----<<<< >>>>----> This newsletter is a way of keeping the brothers and sisters who share our Spirit informed about current events within the lives of those who walk the Red Road. ++ It may be subscribed to via email by sending a request from your own internet addressable account to gars@netcom.com ++ It is archived at http://www.nanews.org Thanks to Don Rayment ,don.rayment@uptowne.com, Wotanging Ikche/ Kanoheda Aniyvwiya is being redistributed via a listserver. If you would like to receive Wotanging Ikche via the listserver, you can send a message to listserv@uptowne.com and include, in the body of your message "sub wotanging.ikche " Thanks to Borries Demeler all _Wotanging_Ikche_ (part a) submissions to AISESnet are archived under AISESnet and can be accessed easily by World Wide Web: 1994: http://aises.uthscsa.edu/94_dis.html 1995: http://aises.uthscsa.edu/95_dis.html 1996: http://aises.uthscsa.edu/96_dis.html 1997: http://aises.uthscsa.edu/97_dis.html This is a searchable index to the AISESnet Discussion mailing list database archive, and the keyword "Wotanging" will retrieve all issues for that year. "Brother, listen to what we say. There was a time when our forefathers owned this great island. Their seat extended from the rising to the setting sun. The Great Spirit had made it for the use of the Indians. He had created the buffalo, the deer and other animals for food. He had made the bear and beaver. Their skins served us for clothing. He had scattered them over the country and taught us how to take them. He had caused the earth to produce corn for bread. All this He had done for His red children because he loved them. If we had some disputes about our hunting ground they were generally settled without the shedding of much blood. But an evil day came upon us. Your forefathers crossed the great water and landed upon this land. Their numbers were small. They found us friends not enemies. They told us they had fled from their own country on account of wicked men and had come here to enjoy their religion. They asked for a small seat. We took pity on them and granted their request and they sat down amongst us. We gave them corn and meat. They gave us poison in return." __ Chief Sa-o-Ye-Wat-Ha (Red Jacket), Seneca +- -- -- -- -- -- -- -- -- -- -- -+ | Indian Pledge of Allegiance | The Indian Pledge of Alleg- | | iance was first presented | I pledge allegiance to my Tribe,| on 2 December '93 during the | to the democratic principles | opening address of the Nat- | of the Republic | ional Congress of American | and to the individual freedoms | Indian Tribal-States Relat- | borrowed from the Iroquois and | ions Panel in Reno, NV. NCAI | Choctaw Confederacies, | plans distribution of the | as incorporated in the United | Indian Pledge to all Indian | States Constitution, | Nations. | so that my forefathers | | shall not have died in vain | Walk in Beauty! Night Owl +- -- -- -- -- -- -- -- -- -- -- -+ O'siyo Brothers and Sisters! I have seen anger and venomous words against traditional leaders supported by heresay and innuendo. Many making these claims have never even met those they accuse. This is not the way we come together. This is the way we destroy ourselves, divide ourselves and lie down before those who would have the "final" answer to the "Indian Question". The accountability question must be asked: "What have YOU done for First People?" How many of those who hide behind a monitor, and throws stones, have helped those who do not have wood for sweat, food at camp, or gas money for going to do free ceremony? Many who keep the old ways struggle daily, with issues of no food, no gas, no wood and legal hassles designed to stop ceremonies. They live it daily. Meanwhile a "charity" like Native American Heritage Association collects hundreds of thousands in the name of the First People and gives little more than lip service to their needs. Those who come and profess to be friends, then only take, or hide and call names like barking dogs are the very ones that are killing traditional ways. They are permitted to continue in this way in spite of the damage they bring to those they profess to support. There is a reason. A wolf will not kill an unworthy enemy. Instead it will shun him/her. This is a fate far worse than death in a cold world. Maybe it is time we learned from the wolf. Thanks to Mike Wicks for the following reminders: In Memory (with Respect and Honor) 7.30.1973 Julius Bad Heart Bull - AIM supporter killed at Oglala by "person or persons unknown." No investigation. 7.31.1976 Sandra Wounded Foot - AIM supporter killed at Sharp's Corners by "unknown assailants." No investigation. Peace! Night Owl , , Gary Night Owl gars@netcom.com (*,*) P. O. Box 672168 gars@nanews.org (`-') Marietta, GA 30067, U.S.A. gars@igc.apc.org ===w=w=== gars@bellsouth.net Fax: 770-528-9643 gars@juno.com ----------- News of the people featured in this issue ---------- Part A: Usenet and e-mail Part B: NATIVE-L list - Racicot Gets Natural Resources - Byrd Farms Out Advocate THIS - Prison Terms for Ts'peten Defenders ISSUE - Gustafsen Standoff CONTAINS - Jail Terms Infuriate Natives NO - Big Mountain Phone Call PART B - Big Mountain Wish List - Overview of NY Tax Issue Wotanging Ikche Volume 5, Issue 32 - Sovereignty/Part 1 does not include any articles from - Religious Freedoms the Native_L mailing list. - Abolish the BIA? - 9th Circuit Court Decision/Part I - Review: Reinventing The Enemy's Language - Yazzie King Renamed to Council - President Nominates Tadd Johnson - New Moon Prayer - A Hundred Years Ago - Poem: Myself and Me - Verse: Hawaiian Book of Days - Conferences and Powwows - offline --------- "RE: Racicot Gets Natural Resources" --------- Date: Thu, 31 Jul 1997 13:13:54 -0400 From: Sonja Keohane Subj: Governors give Racicot natural resources role UUCP email [Editorial Note: The Governor of Montana, who ignored the U. S. Department of Interior Secretary and supported the Yellowstone Bison Slaughter, now sits in the catbird seat. It seems there is no shame for what has passed.] So now the "cat" will be watching the "canary"......makes no sense to me....Racicot will now be able to "take care" of the bison that he missed this past winter.... http://www.bigskywire.com/gazette/thursday/region/reg024.htm Prepared for the Web: Wednesday, July 30, 1997, 9:04:14 PM Governors give Racicot natural resources role By CHARLES S. JOHNSON Gazette State Bureau The Billings Gazette HELENA - Gov. Marc Racicot returns to Montana from the National Governors' Association meeting as the new vice chairman of its natural resources committee and with concerns over federal reaction to a bison management plan and part of the federal budget agreement. In a phone interview from the conference in Las Vegas Wednesday, Racicot, a Republican, said he would serve as vice chairman of the natural resources panel, headed by Nebraska Gov. Ben Nelson, a Democrat. Although Racicot said he previously sat on the association's legal review panel and was a lead governor dealing with transportation, this is his first association committee leadership assignment. "I have to be available to present issues before Congress," he said. "These are added responsibilities, but I can handle them because I've been involved in all these (natural resource) issues anyway. It gives us an advantage to be involved earlier." On another topic, Racicot said he visited with President Clinton about the bison controversy in Yellowstone National Park. The governor said he told Clinton that federal and state agencies had done hard work writing a draft environmental impact statement with a preferred alternative solution that would address the problems. Racicot said the plan could provide long-term bison management sensitive to the park and the bison, while at the same time addressing strong concerns about the health of cattle in Montana and protecting them from brucellosis carried by bison. However, Racicot said he has learned that the plan, which wouldn't be put into place until the winter of 1999 anyway because of notice and public participation requirements, may not be acceptable to the U.S. Interior Department and Secretary of Interior Bruce Babbitt. Clinton indicated that Babbitt doesn't agree to extension of the schedule that Montana has sought. "It's still up in the air," Racicot said. "We're still hoping for secretarial approval and to get it to the public for examination and critique and get a record of decision by next spring." --------- "RE: Byrd Farms Out Advocate" --------- Date: Wed, 30 Jul 1997 17:28:15 GMT From: gehring.1@postbox.acs.ohio-state.edu (Glenn Gehring) Subj: *Cherokee Nation* Byrd "farms out" Advocate Newsgroups: alt.native,soc.culture.native First-term Cherokee Chief Joe Byrd (sometimes called Loony Byrd) will be remembered as the worst Principal Chief in Cherokee Nation history. His most recent act is to farm out the Tribal newspaper, even though Cherokee Nation has a long tradition of producing its own paper. The Cherokee Advocate editor reportedly was told by George Thomas "Nothing personal, but be out by noon." The rest of the Advocate staff will be laid off August 15. I remember Byrd saying the Advocate needed to be more "independent" during his campaign. I thought he meant greater freedom of the press. Guess he really meant "independent" of all but his control. Undoubtedly, whoever he farms it out to will print exactly what Byrd wants printed. Cherokee Nation has been in a Constitutional Crisis for months. The crisis started when Byrd came under investigation for misappropriation of tribal funds. Since then, Byrd illegally fired the tribal prosecutor, illegally fired the entire Cherokee Marshal service, illegally impeached the entire Cherokee Supreme Court, illegally invited in the BIA police to takeover law enforcement, illegally conducted a 4am raid on the courthouse, and (probably illegally) fired numerous other Cherokee Nation employees. The BIA continues to prop up the unpopular Chief with their police. For details and history of this Byrd initiated Constitutional Crisis visit the following web site (look at past issues to Feb). When you see how ludicrous Byrd's actions are you may think you entered the "twilight zone." You haven't. Unfortunately, this is REAL. And, so is the armed BIA intervention in Cherokee Nation! http://www.YvwiiUsdinvnohii.net/Cherokee/Observer.shtml --------- "RE: Prison Terms for Ts'peten Defenders" --------- Date: Thu, 31 Jul 1997 14:09:40 -0800 From: SISIS@envirolink.org (S.I.S.I.S.) Subj: Gustafsen: Prison terms for Ts'peten Defenders :-:-:S.I.S.I.S. Settlers In Support of Indigenous Sovereignty:-:-: July 30, 1997 Bulletin TS'PETEN DEFENDERS SENTENCED TO JAIL TERMS The travesty of justice known as the Gustafsen Lake trial finally came to a close today. 13 of the 15 defendants convicted in connection with the Ts'peten siege of 1995 were sentenced to prison terms by Justice Bruce Josephson. They were taken directly to jail from the courtroom after the sentences were read. In this parody of judicial process, they have been imprisoned for defending sacred Sundance and burial grounds on unceded Shuswap territory, and criminalized for standing on natural, international and constitutional law. The 4 defendants convicted of mischief causing actual danger to life and possession of weapons received the harshest sentences. Wolverine (William Jones Ignace), a 66 year old Shuswap elder, organic farmer and old-age pensioner was sentenced to 8 years in prison, James (OJ) Pitawanakwat was sentenced to 4 years, Edward (Pancho) Dick, 3 years and Suniva Bronson, 2 years less one day. All four are also prohibited from possession of firearms, ammunition or explosives for periods ranging from ten years to life. Wolverine has been imprisoned 22 months already, Pitawanakwat 6 months, so since accused are credited for twice the time spent in pre-trial custody, Wolverine has 4 and a half years and Pitawanakwat has 3 years in jail remaining to be served. Of the 11 defendants convicted of mischief to property, 7 received 6 month sentences: Grant Archie, Glen Deneault, Trond Halle, Mary Pena, Brent Potulicki, Percy Rosette, and Flo Sampson. Ron Dionne and Rob Fleming received slightly longer sentences, 9 months and 7 months respectively, as well as 2 years probation. Two defendants who have recently given birth were given conditional sentences to be served in the community; Sheila Ignace, daughter of Wolverine and Flo Sampson, received a 6 month sentence, and self-represented non-native Shelagh Franklin, who based her defence on jurisdiction alone, received a 1 year sentence. The firearms bans will have a severe impact on the cultural practice and diet of the traditionalists. Moreover, the sentencing of Wolverine and Sampson causes grave worries for the well-being of JoJo Ignace, their developmentally disabled son. JoJo was acquitted on all charges laid against him and released, but doctors testified that his serious condition radically deteriorated as a result of the beatings and inappropriate medications he was given in jail. He has been subsequently hospitalized, and now neither of his parents will be free to care for him. Judge Josephson's Reasons for Judgment regarding this sentencing underscore the deep bias he has exhibited throughout the year-long trial. He was several times interrupted today by cries of "liar" from the gallery as he read his own version of the events of the standoff. Josephson once again asserted as fact American rancher Lyle James' "ownership" of the land in question, although the Crown admitted that the original owners, the Shuswap nation, never relinquished their title by sale or treaty, and although the trial produced strong evidence that the lot claimed by James may in fact be miles away from the Ts'peten Sundance grounds. Josephson omitted from today's summary the incidents of harassment, death threats and shootings directed at the camp by cowboys. He omitted the testimony that RCMP began planning for the operation in May, 1995, long before there was any indication of trouble. He omitted any mention of the RCMP's self-described "smear and misinformation campaign" which significantly contributed to the escalation of tensions. Yet he twice cited a dubious "ambush" on August 27, 1995, in which police were supposedly shot in the backs of their flak jackets, although there was not enough evidence to charge anyone with this incident: police could produce no bullets to trace to the camp (the officers claim they threw this vital evidence out the window), their 24-hour aerial surveillance footage is mysteriously missing for that time period, and information officer John Ward was captured on video stating that RCMP had on previous occasions taken their bulletproof clothing "out to the firing range," suggesting the jackets may have been tampered with. The judge not only contradicted the evidence at trial on several occasions, he also contradicted his own previous rulings in this trial. He made several references today to the sincerity of the defendants' belief in the rightness of their actions, even mentioning that they had obtained legal advice to that effect; this is a total reversal of his ruling on colour of right (posted at http://kafka.uvic.ca/~vipirg/SISIS/court/reascol.html) in which he foreclosed a primary defence by claiming that the defendants did not honestly believe they had a right to occupy that land. Several legal experts have said that this ruling disallowing colour of right made conviction nearly inevitable. Josephson seems moreover to be completely untroubled by judicial contradictions. His reasons for disallowing the argument that the BC courts have no jurisdiction on unceded Native territory - another major pillar of the defence - baldly contradicted a previous Canada Supreme Court ruling. Josephson claimed the Delgamuukw case already dealt with this argument (see http://kafka.uvic.ca/~vipirg/SISIS/court/reas_jur.html), while the Canada Supreme Court unequivocally ruled that it did not (see http://kafka.uvic.ca/~vipirg/SISIS/Clark/sep12scc.html). It must be kept in mind that this is a man who also disallowed self- defence for several of the accused, saying that the largest RCMP operation in history, involving the army and 400 police officers equipped with land mines, 9 armoured personnel carriers, helicopters, airplanes, dog teams, .50 calibre machine guns, and firing an estimated 77,000 rounds in what one soldier explained was the largest Canadian forces land battle since the Korean war, all aimed at a mere 18 people, that this did not constitute excessive force (see http://kafka.uvic.ca/~vipirg/SISIS/court/reasdef.html) The judge has been consistent only in his animosity to the accused. He has allowed massive and repeated irregularities by the prosecution, ranging from the Crown routinely withholding disclosures until minutes before their witnesses took the stand, to the interference with witnesses by upper-level RCCMP officers, to the police destruction of massive amounts of evidence when they had the bullet-ridden trees at the lakesite all clearcut. When the prosecution case still didn't hold together, Josephson struck down all the major defence arguments, delaying filing his reasons for doing so until after the jury was sequestered, and allotted an unprecedented four days to instruct the jury in what they should and should not consider. Add to all this the treatment of Native rights lawyer Bruce Clark, counsel of choice for many of the defenders, who was not allowed to represent them, was assaulted by police in the courtroom, arrested, shackled hand and foot, and jailed for several months, this trial has amply vindicated the Ts'peten Defenders' contention that they will never obtain a fair hearing in BC or Canada. The need for the third party tribunal that was their only demand at Gustafsen Lake has never seemed more clear. \\//\\//\\ STOP THE GENOCIDE!FREE THE TS'PETEN DEFENDERS! //\\//\\// DEMAND A COMPREHENSIVE PUBLIC INQUIRY INTO THE GUSTAFSEN LAKE CRISIS For more information, contact: Splitting the Sky - Phone/Fax: (604) 543-9661 Bill Lightbown - Phone: (604) 251-4949 Letters of condemnation to: Prime Minister Jean Chretien Room 309-S Centre Block, House of Commons Ottawa, Ont. K1A OA6 Canada Phone: (613) 992-4211 Fax: (613) 941-6900 Faxing by email:remote-printer.Jean_Chretien@16139416900.iddd.tpc.int email: pm@pm.gc.ca WWW comments: http://pm.gc.ca/english/pmo/e_corres.htm Letters of support and solidarity for the Ts'peten Defenders can be sent care of S.I.S.I.S. (address below) :-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-: S.I.S.I.S. Settlers In Support of Indigenous Sovereignty P.O. Box 8673, Victoria, "B.C." "Canada" V8X 3S2 ==>>NEW EMAIL : WWW: http://kafka.uvic.ca/~vipirg/SISIS/SISmain.html SOVERNET-L is a news-only listserv concerned with indigenous sovereigntist struggles around the world. To subscribe, send "subscribe sovernet-l" in the body of an email message to For more information on sovernet-l, contact S.I.S.I.S. --------- "RE: Gustafsen Standoff" --------- Date: Fri, 1 Aug 1997 00:51:26 -0800 From: SISIS@envirolink.org (S.I.S.I.S.) Subj: Mainstream: Globe & Mail- Gustafsen standoff hurt democracy :-:-:S.I.S.I.S. Settlers In Support of Indigenous Sovereignty:-:-: [Please note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only. -- S.I.S.I.S.] JUDGE TOUGH ON NATIVE PROTESTERS - Gustafsen standoff hurt democracy Globe and Mail, Thursday, July 31, 1997, Page A1 Miro Cernetig - BC Bureau Vancouver - Native protesters who took up arms against the RCMP during British Columbia's Gustafsen Lake standoff in 1995 were given tough prison terms yesterday by the BC Supreme Court. Warning that armed protests undermine the democratic principles of Canada and must be deterred by the courts, Justice I.B. Josephson ordered the incarceration of 13 people for periods of six months to 4 1/2 years. "What separates the Gustafsen Lake standoff from other forms of civil protest and even unlawful civil disobedience was the threat of violence to prevent their removal from the land should their demands not be met," wrote Judge Josephson in his judgment. Judge Josephson noted there are land-claims disputes across Canada, but that natives do not resort to such armed violence to make their points. "When rhetoric is swept aside, it was camp occupants who introduced weapons and violence to the standoff at Gustafsen Lake," he wrote. "It was that, not an act of trespass that required a massive response by police which strained their resources to the limit." The sentencing ends a 10-month trial that followed the occupation of ranch land in the BC Interior by a small, fringe group of natives and their supporters. Claiming the land was sacred and had never been ceded to the Crown, members of the group fired at police who tried to remove them. The RCMP spent 5.5-million and brought in more than 400 officers to bring the protesters to justice. It was the largest such operation in RCMP history. The standoff lasted 33 days. The prison terms were immediately denounced by supporters of the militants, who include both native and non-natives. They screamed obscenities and called for a public inquiry into the conduct of the trial. Bruce Clark, the lawyer who defended many of the protestors, said he will appeal the sentences. "I feel sick to my stomach, I feel hollow," said Shelagh Franklin, who was given a one year jail term but will be allowed to serve her time in the community because she gave birth during the trial. But native leaders didn't see the Gustafsen Lake protesters as martyrs. Ovide Mercredi, who had to deal with the controversy during his tenure as national chief of the Assembly of First Nations, said the militants knew what they were getting into. Mr. Mercredi added that the group's leader, Jones William Ignace, known as Wolverine, represented an extreme political element that should not be embraced by natives or others. "He's not a fool," Mr. Mercredi told reporters. "He's a very intelligent man. And when you get involved in incidents like that, you have to live with the results." Mr. Ignace was sentenced to 4 1/2 years in prison for mischief causing danger to life, discharging a firearm at police, preventing arrests of others and possession of weapons for a purpose dangerous to the public peace. The jury had earlier acquitted Mr. Ignace, and his son Joseph, of attempted murder charges. The RCMP's response to the Gustafsen Lake standoff has been under scrutiny for the past two years in British Columbia, with many wondering whether police overreacted. But the court appeared to side with the RCMP response, noting that if they had ended the controversy quickly there might have been deaths. "They wisely chose a course calculated to minimize that risk," the judge said. "This required patience and the costly deployment of hundreds of officers working in shifts to contain this remote and isolated area." Edward Dick was given a three-year prison sentence for mischief endangering life and an 18 month concurrent sentence for weapons possession. James Pitawanakwat was sentenced to three years in prison for mischief endangering life and a two year concurrent sentence for weapons possession. The court gave Suniva Bronson a sentence of two years less a day for mischief endangering life, plus a one year concurrent sentence for weapons possession. Sheila Ignace, who also gave birth during the trial, will serve a six-month sentence in the community. Robert Flemming received seven months and two years probation. Seven others convicted of lesser mischief charges were handed sentences of six months in jail and 18 months probation. Letters to the Globe and Mail: letters@GlobeAndMail.ca :-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-: S.I.S.I.S. Settlers In Support of Indigenous Sovereignty P.O. Box 8673, Victoria, "B.C." "Canada" V8X 3S2 ==>>NEW EMAIL : WWW: http://kafka.uvic.ca/~vipirg/SISIS/SISmain.html SOVERNET-L is a news-only listserv concerned with indigenous sovereigntist struggles around the world. To subscribe, send "subscribe sovernet-l" in the body of an email message to For more information on sovernet-l, contact S.I.S.I.S. --------- "RE: Jail Terms Infuriate Natives" --------- Date: Thu, 31 Jul 1997 17:10:45 -0800 From: SISIS@envirolink.org (S.I.S.I.S.) Subj: Mainstream: Province - Jail Terms Infuriate Natives :-:-:S.I.S.I.S. Settlers In Support of Indigenous Sovereignty:-:-: [Please note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only. -- S.I.S.I.S.] JAIL TERMS INFURIATE NATIVES: Prisoners' backers promise retaliation and call for inquiry The Vancouver Province, Thursday, July 31, 1997, Page A3, by Gail Johnson Enraged natives vowed reprisals after 13 participants in the Gustafsen Lake standoff were sentenced to jail yesterday. "This is going to lead to nothing less that general mayhem," said David Dennis of the Native Youth Movement at a protest outside the Assembly of First Nations conference. "Something bug is going to happen. When I hear that someone who was defending their rights is going to jail, I feel angry, I feel frustrated. Something's going to blow up," said Dennis at the emotion-charged protest. Dennis did not say what the movement's next steps will be, but he wait blockades are not out of the question. The jail sentences came after one of the longest criminal trials in Canadian history and nearly two years after the 31-day armed standoff between natives and police at Gustafsen Lake, near 100 Mile House. Jones William Ignace, also known as Wolverine, the standoff's leader, received 4 1/2 years in jail for mischief endangering life. That is in addition for 22 months he has already spent in custody. James Pitawanakwat was sentenced to four years for mischief endangering life, and Edward Dick received three years for the same charge. Lesser mischief charges ranged from nine months in hail to six months to be spent in the community. Defence lawyer Harry Rankin was outraged when native supporter John (Splitting the Sky) Hill spat on fellow defence lawyer Sheldon Tate. "We were up in the rotunda being interviewed, and that Mohawk from the U.S. came shouting at me, so I threatened to whack him with my cane," Rankin said last night. "He started screaming and raving like a lunatic at Tate and then he spit on him." Rankin said Hill is "an idiot who wants everyone else to be a martyr, but not him." Rankin was representing Suniva Bronson, who received a sentence of two years less a day. Tate was acting for Percy Rosette, spiritual leader of the sundancers, and his wife Mary Pena, who each for six-month sentences. More than 140 chiefs signed a petition at the AFN conference demanding an inquiry into "excessive force and attempted murder against the Indian people." [Former] AFN National Chief Ovide Mercredi said those involved in the standoff knew the consequences of their violent actions. "Wolverine knew what he was getting into," said Mecredi. "you don't have to use a gun to be a leader. If you use a gun, those are the consequences." Two others involved in the standoff, William and Joseph Ignace, were acquitted of attempted murder. The sentencing hearing took two months. Letters to the Province: provedpg@pacpress.southam.ca :-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-: S.I.S.I.S. Settlers In Support of Indigenous Sovereignty P.O. Box 8673, Victoria, "B.C." "Canada" V8X 3S2 ==>>NEW EMAIL : WWW: http://kafka.uvic.ca/~vipirg/SISIS/SISmain.html SOVERNET-L is a news-only listserv concerned with indigenous sovereigntist struggles around the world. To subscribe, send "subscribe sovernet-l" in the body of an email message to For more information on sovernet-l, contact S.I.S.I.S. --------- "RE: Big Mountain Phone Call" --------- Date: Wed, 30 Jul 1997 19:18:22 -0800 From: redorman@plix.com (Dorman, Robert ) Subj: B.M. Phone call Mailing List: Big Mountain List Saturday, July 26, Swaneagle received a phone call from Bob, Bonnie Whitesinger's husband. Apparently another "deadline"has been set--sometime in September, for the eviction of the Big Mountain resisters. The policy the BIA, Hopi tribe, etc. seems to have been following is targeting individual families, one at a time, rather than coming in with bulldozers and squads of riot police and driving everyone out en-masse, which is what was originally expected back on March 31st. Also, there are families that had been coerced into signing the accommodation agreement that now wish to take back their signatures, which they apparently are entitled to do under the agreement. So, it may be that the ranks of the resisters are growing rather than getting smaller. ************************************************** Bob Dorman redorman@plix.com "The Activist Page" http://www.plix.com/~users/redorman/ --------- "RE: Big Mountain Wish List" --------- Date: Tue, 29 Jul 1997 14:42:28 -0800 From: redorman@plix.com (Dorman, Robert ) Subj: Big Mt. Wish List Mailing List: Big Mountain List A List of Supplies Needed by Resistors at Big Mountain The Dine' eiders have specifically asked all support groups and concerned individuals to reach out to their local communities to raise awareness about the destruction of their culture and land. Their hope is that people will stand in solidarity with them in their efforts to defend their way of life against the plans of Peabody Western Coal Company and the United States Government. The Dineh desperately need our help and there many ways in which we can support the struggle. Go to Big Mountain Supporters are needed on the land to help out with sheep herding, various chores, and documenting harassment against the Resisters. A month commitment is suggested for on-the-land support, and non-violence training and cultural sensitivity training are also strongly recommended. If you are interested in being a supporter, write to: Media Island International PO Box 7204 Olympia, WA 98507 (360) 352-8526 mii@olywa.net [Note: no guns, drugs or alcohol; must bring all own supplies, food; be self suffient. Must be willing to work hard, keep clean, and show respect.] Donate Money and Supplies One of the main tactics being used to force the Dineh to accept relocation is to undermine their ability to sustain themselves by confiscating their livestock. Food supplies are much needed as well as communication, video equipment, and monetary donations. Needed at Big Mountain: Equipment Food Office ---------- --------- --------- CB radios potatoes postage stamps scanners flour fax machine cell phones dry bean computer flashlights coffee paper batteries AA,C&D sugar pens auto parts shortening envelopes solar panels Recording ---------- video cameras photo cameras accessories tapes - VHS Hi*&Audo tape recorders Miscellaneous ------------- long-distance calling cards, firewood, veterinary care, medical/first aid supplies, hay/feed tack, wood cutting tools, water purifiers, 4-wheel drive vehicles, automotive mechanical skills, carpenters, ready-mix cement, dry wall, paint. Monetary donations are also desperately needed to help with covering the costs of livestock impoundment, and the costs of maintaining resistance at Big Mountain. ************************************************** Bob Dorman redorman@plix.com "The Activist Page" http://www.plix.com/~users/redorman/ --------- "RE: Overview of NY Tax Issue" --------- Date: Wed, 30 Jul 1997 17:13:38 -0400 (EDT) From: GrayDeer@aol.com Subj: Overview of NY Tax issue UUCP email This posting is in response to the Kanawake branch of the Mohawk Nation that just sent an article out by the (self-elected keepers of the fire) who have nothing do do with the Haudenosaunee traditional Longhouse Onondaga who are the true Keepers of the Fire. Please read the following info so you can come to your own conclusions about this issue. nia:wen (thank you) O:nen Kanatiyosh ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ NEW YORK'S TAX WAR WITH INDIANS: DEMONSTRATIONS AND A WARRIOR SOCIETY SET THE STAGE FOR STATE TAXATION ON IROQUOIS COUNTRY The decision by the Pataki administration to stop trucks carrying tobacco and motor fuel products destined for the Indian reservations after April 1 was long predicted and expected in legal circles. What was unusual and unexpected was the negotiations with several traditional governments which led to an interim agreement wherein NYS agreed to respect indigenous governments' rights to jurisdiction within their own territories and to forego the taxes on tobacco products. The Indian nations agreed to raise prices to be more competitive with off-territory vendors and to share information with the State to ensure the agreement was working. Reaction to what was described as an "embargo" resulted in several demonstrations during which roads were blocked and Indians confronted NYS police in face-to-face demonstrations. People were injured on both sides, tires burned, a number were arrested and face charges, and Indians made claims about the unfairness of the State's actions which ranged from accusations of genocide and termination to price fixing. Everyone agrees on one thing: the Indian nations in New York have built an economy around sales of tax-free motor fuel products and tobacco to non-Indians and the blockade of these products was hurting this economy. Requirement to collect taxes is driven by the courts The blockade was not unexpected and while the rhetoric was directed at the governor of New York, the underlying cause of what was indeed a crisis is found in a string of court decisions culminating in a decision by the U.S. Supreme Court. The fact pattern around how things came to be the way they are is centered on court decisions. A faction of Iroquois Indians which includes elements of the Iroquois Warrior Society and the Iroquois businessmen adopted a strategy to use direct action against the state, shutting down highways, to force the governor to cease trying to collect taxes and thereby to stop seizing trucks bringing these products to the Indian country. It is extremely unlikely that the State can or will accede to Indian demands that New York officials simply stop enforcing their tax laws. The first in a string U.S. Supreme Court cases, _Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation,_ was decided in 1976. A private "smokeshop" owner and an employee were arrested for selling to non-Indians without a license and not paying the state tax. They and the Tribe sued, challenging Montana's right to collect the tax. They lost. The Supreme Court reasoned that Montana was not taxing Indians but rather taxing non-Indians making purchases on Indian country and the tax was permissible. The second case, _Washington v. Confederated Tribes of the Colville Indian Reservation,_ was decided in 1980 and was even more definitive. Here the tribes enacted ordinances approved by the Department of the Interior authorizing tobacco outlets. These tribes imposed a tribal tax on cigarettes and in general regulated the Indian trade. The tribes were heavily dependent on tobacco revenues but the Court, in upholding the state's right to tax non-Indians in Indian country, went to some length to hold that the State's tax collection power was not pre-empted by any federal statute including the Indian Reorganization Act, the Indian Financing Act, the Indian Self-Determination and Education Act, the Federal Indian Traders Act, the Washington Enabling Act, or the Indian Commerce Clause. The decision was explicit: "What the smokeshops offer these customers, and what is not available elsewhere, is solely an exemption from state taxation... We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere." The decision also permitted the State to seize unstamped cigarettes on-route to Indian smokeshops. An even heavier burden was placed on the Indian tobacco trade in the 1985 U.S. Supreme Court decision _California State Board of Equalization v. Chemehuevi Indian Tribe._ The Tribe had imposed a tax equivalent to that of the State and the argument that the Indian trade existed because of the tax exempt status was not valid. The Supreme Court did not address this fact but instead simply upheld the right of the State to require the Indian tribe to collect the tax for the State because the tax was imposed on the non-Indian customer. Presumably, that customer was required to pay both the state and tribal taxes combined. In 1991, in _Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma,_ the U.S. Supreme Court again upheld the State's right to collect taxes. This time, however, the Court stated that the Indian tribe's right of immunity from lawsuit did not protect individual members of the tribe who could be held liable for the taxes. Said the Court: "We have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State.... although the doctrine of sovereign immunity applies to the Potowatomis, that doctrine does not excuse a tribe from all obligations to assist in the collection of validly imposed state sales taxes." This string of U.S. Supreme Court decisions illustrates that the Court intends to preserve the rights of states to collect taxes from non-Indians in transactions on Indian country, even when the owner of the business is an Indian tribe, and even when the tribe collects taxes equal to those of the State. The New York Courts Indians fared a bit better in New York courts in the early days. Herzog was a Pennsylvania motor fuels wholesaler doing business with Senecas on the Allegheny and Cattaraugus territories. In 1985 the State amended its taxation laws to collect taxes on on-reservation sales to non-Indians and to assess and collect these taxes from non-Indian distributors like Herzog. Herzog sued and the State's highest Court ruled in _Herzog I_ that the Federal Indian traders laws preempted the tax. The State appealed to the U.S. Supreme Court which, in effect, found in favor of State taxation of sales of motor fuel products to nonIndians on Indian territories. In _Herzog II,_ the State court did not address the validity of the State's subsequent regulations to collect such taxes because no sales under the new regulations had been made, but it was clear the federal courts were in favor of State powers in such cases. New York State courts refused to allow the State to collect taxes from non-Indian vendors on the theory that such taxes were a violation of the Federal Indian Traders Act. In 1990 in _Milhelm Atea & Brothers Inc. v. Dept. of Taxation and Finance of the State of New York_ the court at first (_Atea I_) invoked the Federal Indian Traders Act to deny the State the power to collect taxes from wholesalers. The State appealed and the Supreme Court instructed the State court to reconsider in light of the Potawatomi decision. The State Court then reversed itself in _Atea II,_ holding that the State is permitted to collect such taxes. The Treaty of 1794 The Canandaigua Treaty of 1794 has almost legendary significance to the people of the Six Nations. It was negotiated with Timothy Pickering in the summer and fall while the United States was at war in the Indian country in what is now Ohio and it is one of the few treaties which actually recognizes Indian sovereignty and was not negotiated as the result of U.S. military victory. Moe John of the Allegheny Seneca invoked the treaty in _John V. City of Salamanca_ when he argued the treaty exempted himself and his building from a municipal building code. The Second Circuit Court, however, found that since the Senecas had already leased the land to the city, an ordinance would not violate the treaty's guarantee of "free use and enjoyment" since they had already voluntarily surrendered some of their rights by signing a lease. They didn't address the history of the lease (it was coerced) or the broad intent of the treaty, but rather confined themselves to a narrow reading of its guarantees. John lost, and behind the wording of the courts we find little which would protect sales of gasoline or cigarettes to non-Indians, and nothing which would protect non-Indian wholesalers from this tax. The 1842 Treaty The Treaty of 1842 has been called the Compromise Treaty because it followed and partly corrected fraud and other abuses suffered by the Six Nations in the Fraudulent Treaty of 1838. In 1838 a treaty was signed which ceded four Seneca territories: Tonawanda Creek, Buffalo Creek, Cattaraugus, and Allegheny, and planned a removal of the Seneca people to Indian territory in what is now Oklahoma and Kansas. The Quakers, among others, mounted a campaign to reverse this treaty because people were bribed, some signatures forged, and the treaty legally invalid. The treaty was so fraudulent that even the U.S. Congress, engaged at that moment in a murderous land thieving assault against Indian nations from Florida to Texas, agreed an injustice was being done and sent negotiators to arrange for a new treaty. Usually when someone swindles someone else and is caught, they go to jail and the victim gets their property back, unless they are Indians in the United States in the 1840s. In the end the Seneca had two of their four territories returned. Congress failed to return the Tonawanda territory to the Seneca Nation, the Tonawanda Senecas refused to leave their homes, and the Seneca Nation turned their backs on them, leaving them to struggle by themselves until they could gain title to their territory following the Civil War. During the years between 1838 and 1842, Cattaraugus County moved aggressively to collect taxes for roads and bridges on properties on the Allegheny reservation. When Indians failed to pay these taxes, the State initiated forfeiture proceedings, and the Allegheny territory was almost lost. When negotiators convened the discussions around the Compromise Treaty of 1842, Senecas immediately insisted something be done to deny the State the power to condemn their lands for non-payment of taxes. Provisions were included in the treaty: "The parties to this compact mutually agree to solicit the influence of the Government of the United States to protect such of the lands of the Seneca Indians, within the State of New York, as may from time to time remain in their possession from all taxes, and assessments for roads, highways, or any other purposes until such lands shall be sold and conveyed by the said Indians, and their possession thereof shall have been relinquished by them." Many Seneca rely on this wording to argue that this is a guarantee against any form of taxation on Seneca country. The issue is, of course, moot in light of the strategy of the State. The State is not trying to collect taxes on Seneca country. It states it is collecting taxes from non-Indian wholesalers. Were the Seneca Nation to sue the State, the State will invoke the argument that it has a right to collect taxes on retail transactions involving motor fuels and tobacco products sold to non- Indians and, if the history of these court decisions is any guide, the courts will agree. There are no treaty rights which protect the non-Indian customer from State taxation, and no viable strategies to invoke such a right as an Indian right. The proposed tax agreement The U.S. Supreme Court left one route open to Indian nations on the issue of taxation of non-Indian transactions. In the Oklahoma case, the Court ruled that a state and an Indian nation may enter into an agreement on the issue of taxes. The other route, presumably, is that a state legislature might create a statute exempting such transactions within their jurisdiction, but it is not clear the courts would find this acceptable - and such a statute would surely be subjected to the equal protection clause in the U.S. Constitution. In light of the history of the struggles in the federal courts between states and Indian nations over the issue of taxation of non-Indians on sales in the Indian country, a tax agreement appears the only practical way for an Indian nation to avoid collection of state taxes on sales to non-Indians. New York State almost negotiated a tax agreement with Indian nations The proposed tax agreement negotiated between Governor Pataki's representatives and the traditional governments of the Haudenosaunee, or Six Nations Iroquois Confederacy, would have been the best deal for Indian nations thus far negotiated anywhere in the United States. Unlike other compacts between Indians and states regarding tobacco products sales to non-Indians, the proposed agreement provided no taxes collected by the State for such sales. This agreement would have acknowledged that Indian governments would have been the primary agents of interest in Indian country. It would have provided that the state would recognize the Indian nation's power (and not the State's) to license businesses and people who do business in the Indian territory, and it acknowledged the sovereign power of the Indian nations to bear the stamps of those nations. The draft of the agreement held that all unstamped cigarettes would be considered by both parties to be contraband and the State clearly intended to seize cigarettes and gasoline determined to be contraband en route to the Indian territories. The Haudenosaunee governments, under this agreement, would have been in charge of the tobacco products and would have been, in effect, the wholesalers. This means that one of the primary beneficiaries of the tobacco trade, the non-u Indian wholesaler, would have made no money in this environment. The other major non-Indians impacted by the agreement were the cadre of lawyers who have previously collected millions of dollars constructing a delaying action in a losing cause which produced nothing for the average Indian. The Haudenosaunee governments would have reaped significant profits for the benefit of its members. The non-n Indian wholesalers and lawyers would have lost out. The Haudenosaunee agreed to share information with the State concerning the licensing of people in their territories who are in this business. This provision has been compared to giving the State power to regulate, but there was no provision here for the State to control licensing or to enter the territories and enforce regulations. Without the power of enforcement there was no meaningful State regulation. It was simply an agreement that the Indian nations will provide information which will be enable the State to view how the agreement is working. On the issue of enforcement, this section was silent. The State would not collect any taxes. The Indian nations agreed they would not sell motor fuel products, a provision included because the Haudenosaunee did not seek to sell such products. The Indians agreed they would not engage in mail-order or other off-territory sales. The Haudenosaunee would have designed their own stamps. The Haudenosaunee and the State had agreed that any cigarettes found on the Haudenosaunee territories which do not have their stamp can be considered by both parties to be contraband. Contraband or "bootleg" cigarettes would have been subject to seizure or forfeiture, but seizure by whom and under what circumstances? The answer is in the text of the proposed agreement: "The Haudenosaunee shall agree to make reasonable good faith efforts to ensure the enforcement..." What goes on within the Indian country is the responsibility of the Haudenosaunee governments. In Section V-E of the proposed agreement we find the State was to inform the Haudenosaunee governments of unlicensed operations they learn about on Indian country and will give this information to the Haudenosaunee. No armed invasion by State police was mentioned or contemplated. The spirit of this agreement by the state to recognize Haudenosaunee jurisdiction continued in section IV - Compliance Team. The State had agreed to recognize broad powers of Indian self-determination and to provide cooperation to keep the Indian tobacco trade alive and under control of Indian governments. In exchange, the Indian governments had agreed to raise their prices closer to but not equal to prices charged by off-territory vendors who do pay State taxes. If someone broke the agreement and sells cigarettes for less than agreed upon, the Indian government is informed and it is they who would have taken action. A possible action is that they might have revoked a license. The only viable path to avoid taxation on New York Indian country is with a tax agreement. Comparing these provisions (and omissions) with Supreme Court decisions, we can see that the Interim Agreement acknowledged Haudenosaunee jurisdiction and sovereignty to a degree far greater than that envisioned by the Supreme Court and much greater than that arrived at by other states and Indian nations. The history of these court battles, it will be remembered, is that individual entrepreneurs and non-Indian wholesalers banded together, hired lawyers, and fought for Indian rights outside the purview of the nations. They lost, and they were not parties to the Interim Agreement, nor are they beneficiaries. Individual Indian entrepreneurs, under the Agreement, were to be subject to the Indian governments, and profits from the tobacco trade would have passed through the hands of these governments. Under the Supreme Court decisions, the Indian governments would get nothing, the Indian entrepreneurs would get nothing, the cigarette retailers would pay full state sales taxes, the average Indian would receive no benefits of any kind from the trade. The Supreme Court left a single path to avoid taxation of these sales in the Indian country. The states are allowed to make agreements with the Indian nations concerning taxes. To date, this has proven the only practical route to avoid such taxation. Pataki announces he will not try to collect taxes on Indian country. Following the April 1 deadline, state police seized fuel trucks destined for the Indian country and Indians and non-Indian supporters mounted a series of highly publicized demonstrations which involved blocking major highways. It was, in the public's eye, a tax war between the Indians and the Pataki administration. Non-Indians, not informed about how the courts have limited the options on this issue and not aware of the internal divisions among the Indians themselves, supported Indian rights against state taxation. On May 22, Governor Pataki made a surprise announcement that he would no longer try to collect these taxes and that he would order the state tax department to dismantle regulations requiring collection. The headlines in the Buffalo News -- Indians Win Tax War -- were seriously flawed. Governor Pataki later stated that even if the courts order him to collect the taxes, he would refuse. This is not, however, likely. The courts are poised to order that, in the absence of an agreement, the state must collect the taxes. If the governor refuses to do so, the courts will issue orders directing that the taxes be collected. Pataki will, in the end, obey the courts. The state troopers could be seizing trucks and demonstrations could be mounted on the reservations in the future. Under the terms of this now-defunct Agreement, Indian governments would have enforced their own regulations on their territories. Governor Pataki, in abandoning the proposed agreement, has sought to turn the problem over to the N.Y. Legislature, but early reports from members of that body indicate they are unlikely to pass a bill exempting Indians from paying these taxes. The courts have been issuing statements which strongly suggest they would find such a law unconstitutional and would strike it down. No such law will ever be passed, however, because the Legislature would first hold hearings. In 1990 the same Legislature held hearings into the deaths of two Mohawk men in gunfire which erupted over the issue of individually-owned commercial gambling casinos there. The testimony taken at that time uncovered a heavily armed Mohawk Warrior Society which had terrorized the community. This story is immortalized in Bruce Johannsen's _Life and Death in Mohawk Country._ The Warrior Society was publicly reviled by a committee of the state Assembly which heard testimony of dozens of Akwesasne residents who had been subjected to assaults, attempted murders and other crimes intended to promote warrior gambling interests. A number of the people who were associated with the Warrior Society in 1990 were arrested and have served as spokespersons for the recent Indian tax protests at Onondaga. In addition, three houses owned by chiefs or their supporters were burned. Further hearings will uncover a pattern of death threats and serious coercion directed at the Confederacy chiefs who were trying to reach a tax agreement to avoid collection of state taxes on Iroquois country. There are people in the state Assembly who will remember the Warriors of 1990 and the burned houses of the spring of 1997. They are unlikely to pass a bill exempting the warriors or their allies from state taxes. This will mean the courts will decide, and the history of court decisions strongly suggests that more efforts to collect these taxes on Iroquois country lie on the horizon. The confrontations with state police and the blocked highways which were ostensibly designed to protect Indian rights against state taxation are now responsible for destroying the only viable route to that end. John C. Mohawk --------- "RE: Sovereignty/Part 1" --------- Date: Fri, 1 Aug 1997 14:29:35 -0400 (EDT) From: GrayDeer@aol.com Subj: Sovereignty: Does Today's Tribal Government Truly Represent Traditional Native Nations? UUCP email [Editorial Note: Sincere thanks to Kanatiyosh for sharing this paper on tribal sovereignty. Due to it's length it will be presented in 4 parts. This is part 1 of 4. Saving all parts is recommended.] Se:kon I thought you might like to read this paper I wrote for law school. Barbara Gray Kanatiyosh +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Part 1 of 4 Sovereignty: Does Today's Tribal Government Truly Represent Traditional Native Nations? by Kanatiyosh Prepared for Professor Rebecca Tsosie. Arizona State University Law School. Independent Study. Spring 1997. Kanatiyosh is a Mohawk 3rd year law student from Akwesasne, NY and Canada. ++++ Sovereignty: Does Today's Tribal Government Truly Represent Traditional Native Nations? I have heard the elders say that when terms of the treaties were deliberated the smoke from the pipe carried that agreement to the Creator binding it forever. An agreement can be written in stone, stone can be chipped away, but the smoke from the sacred pipe signified to the First Nation peoples that the treaties could not be undone. Ernest Benedict Mohawk Elder, Akwesasne I. INTRODUCTION What is Indian sovereignty? Academic conventions force legal scholars to analyze and argue Indian sovereignty within the framework of the United States law, through court cases and statutes. This self-imposed vacuum not only oppresses the expansion of Indian sovereignty, it also perpetuates racism. A scholar begins his research looking at Chief Justice Marshall's decisions in the "Cherokee Cases" as the origins of tribal sovereignty; and, "whatever Indian sovereignty was before John Marshall started to define it is irrelevant." Irrelevant to United States law, but it is not irrelevant to native peoples. When the Europeans landed on the shores of North America, they found native peoples who had highly complex forms of traditional governments that have existed since time immemorial. Traditional governments such as the Iroquois Nation, Navajo Nation, and Hopi Nation, have existed long before John Marshall's foundational opinions concerning Indian sovereignty. These traditional forms of governments will continue to exist whether or not they are recognized by the federal government as legitimate representatives of the native peoples. As the Onondaga Faithkeeper for the Haudenosaunee, Oren Lyons recently stated during the Sovereignty Summit in Washington (D.C.), "One major evidence of sovereignty, ... is that you practice it. You don't ask the colonizer to recognize it." The traditional native nations, not tribal governments, which are white constructs were sovereign before being judicially defined as such in the early 1800's this can be seen by the fact that treaties with Europe and later the United States were entered into with the native peoples' traditional governments. This paper will attempt to take a holistic approach in that it will look at and discuss tribal sovereignty and tribal government from the parameters of legal academia. The paper will then examine the complex traditional forms of government of the Haudenosaunee and Hopi peoples in an attempt not only to shed light on these ancient forms of government and the wisdom they possess, but to also provoke thought. The paper will conclude that the time has come for the sovereignty of the native peoples to be recognized not only when it is convenient for the United States government to gain peace, lands, water, minerals, etc., by treaties, agreements, or statute; but to recognize the traditional government's sovereignty because they are truly sovereign nations. II. TRIBAL SOVEREIGNTY The judicial birth of tribal sovereignty developed within John Marshall's Cherokee Cases and set the framework for how legal scholars interpret Indian sovereignty today. The Cherokee Cases when read together, offer a definition of Indian sovereignty. These cases also offer an insight to Marshall's dilemma, for " he realized that, whatever Indians were, they were not part of the body politic of the United States," and "they were not creations nor subjects of the United States." As a result, Marshall "defined Indian sovereignty not so much by what it is, but by what it is not." In Johnson v. M'Intosh the Court was asked to decide whether a land conveyance from the Piankeshaw Indians to the Plaintiff was valid over the Defendant's grant from the United States. Marshall applied the doctrine of discovery to legitimize his holding that Indians have a right of occupancy but the grant of title to the land lies in the United States as sovereigns. As Marshall writes,"[the Indians'] rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." From a native peoples' perspective one must question how a people can come to an inhabited land and discover it and impose upon the inhabitants an Europocentric perspective of sovereignty. John Marshall's concept of sovereignty seems to be derived from the European concept of feudalism: Feudalism was not only a way of holding property, it was a complex way of marshaling military alliances. A sovereign was a supreme warlord, an individual to whom lesser war lords owed allegiance. He (the sovereign) presided over a patchwork of military dictatorships under which lands and peasants were merely background to the main event: the military aristocracy. Sovereignty, in the early centuries, meant absolute power over everyone and everything within the 'realm'. After Johnson, the definition of Indian sovereignty is that Indians have the right of occupancy to their lands, which they have held since time immemorial. However, they could not sell their lands to others, for the United States through the doctrine of discovery and conquest had the exclusive Title. In Cherokee Nation v. Georgia, a motion was brought on behalf of the Cherokee nation to enjoin the state of Georgia from enforcing the laws of Georgia within Cherokee territory. John Marshall was once again faced with a dilemma. The issue was whether the Cherokee nation could be considered a foreign nation under the Constitution; thereby, giving the court jurisdiction to hear the case. Although Marshall recognized that the "Indians in relation to the United States is perhaps unlike any other two people in existence," he was compelled to analyzing this issue by applying Europocentric principles that may not have been correct. For example, Marshall stated: They [Indians] look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection [sic] with them would be considered by all as an invasion of our territory, and an act of hostility." However, it could be argued that the Indian nations continued to exercise their external sovereignty by entering into treaties with foreign nations even after the imposition of discovery and the formation of the United States claims to territorial sovereignty. For example, Spain entered into a treaty of Peace and Alliance in 1793, with the Choctaw and Chickasaw nations, and Spain also entered into a treaty with the Cherokee, which was signed at Los Nogales in October of 1793. Whether or not the fact that the Indian nations continued to exercise their sovereignty by entering treaties would have changed John Marshall's analysis in Cherokee Nation, or the definition of Indian sovereignty as it is known today, might never be known. The holding in Cherokee Nation is that the Cherokee Nation was not a foreign state, but because of their geographical location within the United States, they are domestic dependent nations in a state of pupilage to the United States. Worcester v. Georgia3 is a very important case within Indian law, for it reaffirms and defines to some degree the internal4 sovereignty of the native nations. In Worcester, the Court held: The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. A. John Marshall and the Cherokee Cases The judicial birth of tribal sovereignty developed within John Marshall's Cherokee Cases and set the framework for how legal scholars interpret Indian sovereignty today. The Cherokee Cases when read together, offer a definition of Indian sovereignty. These cases also offer an insight to Marshall's dilemma, for " he realized that, whatever Indians were, they were not part of the body politic of the United States," and "they were not creations nor subjects of the United States." As a result, Marshall "defined Indian sovereignty not so much by what it is, but by what it is not." In Johnson v. M'Intosh the Court was asked to decide whether a land conveyance from the Piankeshaw Indians to the Plaintiff was valid over the Defendant's grant from the United States. Marshall applied the doctrine of discovery to legitimize his holding that Indians have a right of occupancy but the grant of title to the land lies in the United States as sovereigns. As Marshall writes,"[the Indians'] rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." From a native peoples' perspective one must question how a people can come to an inhabited land and discover it and impose upon the inhabitants an Europocentric perspective of sovereignty. John Marshall's concept of sovereignty seems to be derived from the European concept of feudalism: Feudalism was not only a way of holding property, it was a complex way of marshaling military alliances. A sovereign was a supreme warlord, an individual to whom lesser war lords owed allegiance. He (the sovereign) presided over a patchwork of military dictatorships under which lands and peasants were merely background to the main event: the military aristocracy. Sovereignty, in the early centuries, meant absolute power over everyone and everything within the 'realm'. After Johnson, the definition of Indian sovereignty is that Indians have the right of occupancy to their lands, which they have held since time immemorial. However, they could not sell their lands to others, for the United States through the doctrine of discovery and conquest had the exclusive Title. In Cherokee Nation v. Georgia, a motion was brought on behalf of the Cherokee nation to enjoin the state of Georgia from enforcing the laws of Georgia within Cherokee territory. John Marshall was once again faced with a dilemma. The issue was whether the Cherokee nation could be considered a foreign nation under the Constitution; thereby, giving the court jurisdiction to hear the case. Although Marshall recognized that the "Indians in relation to the United States is perhaps unlike any other two people in existence," he was compelled to analyzing this issue by applying Europocentric principles that may not have been correct. For example, Marshall stated: They [Indians] look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection [sic] with them would be considered by all as an invasion of our territory, and an act of hostility." However, it could be argued that the Indian nations continued to exercise their external sovereignty by entering into treaties with foreign nations even after the imposition of discovery and the formation of the United States claims to territorial sovereignty. For example, Spain entered into a treaty of Peace and Alliance in 1793, with the Choctaw and Chickasaw nations, and Spain also entered into a treaty with the Cherokee, which was signed at Los Nogales in October of 1793. Whether or not the fact that the Indian nations continued to exercise their sovereignty by entering treaties would have changed John Marshall's analysis in Cherokee Nation, or the definition of Indian sovereignty as it is known today, might never be known. The holding in Cherokee Nation is that the Cherokee Nation was not a foreign state, but because of their geographical location within the United States, they are domestic dependent nations in a state of pupilage to the United States. Worcester v. Georgia3 is a very important case within Indian law, for it reaffirms and defines to some degree the internal4 sovereignty of the native nations. In Worcester, the Court held: The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. V. CONCLUSION This paper set out to explore whether today's tribal government truly represents traditional native Nations and has successfully proven that tribal governments do not represent the traditional native Nations. It is impossible for the United States and the New York State's artificially constructed tribal governments to contain the traditional philosophy, ethics, and religious ceremonies of the traditional peoples. Although tribal governments claim to use tribal customary law, one can not pick and chose parts of their traditions, for the traditional way is not just the laws, it is steeped within the traditional prayers and way of life; and, therefore, cannot be separated. In other words, Worcester articulated that state law has no jurisdiction in Indian country, unless the consent of the native nation is given or the United States approved. Therefore, native nations retained their inherent sovereignty, for "Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial." The Cherokee cases when read together, offer a judicial foundation for the definition of Indian sovereignty. Marshall's definition is that Indian's have retained their inherent sovereignty. Indian nations are distinct political societies capable of managing and governing their own affairs; therefore, within their own boundaries they have exclusive authority, with one exception that they cannot convey title to the land without the consent of the United States. B. Refinements and Limitation On Tribal Sovereignty In the twentieth century, John Marshall's basic framework defining tribal sovereignty was reaffirmed, refined, and underwent various limitations. The nineteenth century left the Court with two conflicting views of tribal sovereignty. The Worcester line of cases promoted tribal sovereignty, while the Kagama line of cases shows the federal government to appear to have unlimited power. These cases are important in order to get a complete understanding of today's tribal sovereignty. 1. Worcester Line of Cases The Worcester line of cases is represented by such early cases as Talton, Crow Dog, and Wheeler. The court in Talton, upheld that the Cherokee Nation's criminal courts were not United States courts, and; therefore, they were not required to have a Fifth Amendment grand jury proceeding. Talton, is an important case, for it acknowledges and reaffirms the native peoples inherent sovereignty to the right of self-government. The Court expounded, "the powers of local self-government enjoyed by the Cherokee Nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment, which as we have said, had for its sole object to control the powers conferred by the Constitution of the National Government." In Crow Dog, Crow Dog a Brule Sioux medicine man killed Spotted Tail in 1882 within Indian country. Sioux custom was observed by Crow Dog, for Spotted Tail's family was given a traditional compensation, which mandated that Crow Dog was now responsible for the care and protection of the dead chief's family. The federal attorney was disgusted by the native peoples' way of remedying the death of Spotted Tail, for he thought it was outrageous, and; therefore, charged Crow Dog with murder. However, the Supreme Court affirmed the tribe's sovereignty by holding that the Sioux, preserved by treaty, their right to punish tribal members who committed serious crimes. However, in 1885, Congress in reaction to the Crow Dog case enacted the Indian Major Crimes Act This act had the effect of imposing a limit upon tribal sovereignty in that the act made it a federal crime when one Indian killed another within Indian country; thus, infringing upon a part of the tribe's criminal jurisdiction. The Major Crimes Act has undergone a variety of amendments. It originally applied to seven crimes, and the Act now applies to thirteen criminal offenses. Although the Major Crimes Act did not fully erode traditional sovereignty, it along with the federal policy of Allotment and Assimilation hastened and disrupted many traditional peoples' cohesiveness as a community causing their ceremonial religious ways to become jeopardized. In 1978 during the federal policy of self-determination, Wheeler affirmed Marshall's concept of inherent tribal sovereignty. The Supreme Court held in Wheeler that, "Indian tribes possessed those aspects of sovereignty not withdrawn by treaty, statute, or by implication as a necessary result of their dependent status." The Court when analyzing the implication of the tribes dependent status stated: [T]he sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and non-member of the tribe. ... These limitations rest on the fact that the dependent status of Indian tribes within our territory jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws are of a different type. Therefore, Wheeler reasserted Marshall's vision of inherent tribal sovereignty by stating that the right to punish tribal members is part of the tribes' retained sovereignty and not a power given to them by the federal government. The keystone concept that the Worcester line of cases offers to the definition of tribal sovereignty is that the tribes retained their inherent sovereignty, which implies that native nations were, and continue to be sovereign in their internal affairs of self government. This is an inherent sovereignty that native peoples possessed long before the Europeans arrived in North America. However, there are other sets of cases that have interpreted Marshall's vision of tribal sovereignty quite differently and have led to much conflict and confusion for all the parties involved. These cases will be examined next. --------- "RE: Religious Freedoms" --------- Date: Wed, 30 Jul 1997 20:23:04 -0700 (PDT) From: Larry Kibbey Subj: Further Thoughts/Religious Freedoms Mailing List: Paths-L From 1921 to 1934, reflects historical views of events, activity and attitudes in which 86 years later there seems to be little change, only in this time period, concerns and interest vary, but the promise of eradicating the culture and belief's of the Native American Indian continues on. Factual respects as, "Administrative control of Indian life recognized no right of religious freedom; and, "Administrators who identified civilization with a particular sect infringed the religious liberty of the Indian and interfered, on the ground of immorality, with many dances and other cherished customs of some of the tribes." Then it was discovered that, "The great Administrative power of the Indian Bureau was sometimes abused or misdirected. One of the objectives of Indian Service policy, for many years was the segregation of Indians. The location of those settlements was charged as the whiteman moved westward." In 1921, the Office of Indian Affairs made it very clear of its intent to then eradicate the Religious Freedoms and Rights of the Sovereign Nations of the Native American Indian, when it sent out Circular No.1665 on April 26, 1921 which read in part; "The Sun Dance, and all other similar dances and so called Religious ceremonies are considered "Indian Offenses" under existing regulations and corrective penalties are provided. I regard such restrictions as applicable to any [religious] dance which involves, the reckless giving away of property, frequent or prolonged periods of celebration, in fact any disorderly or plainly excessive performance that promotes superstitious cruelty, licentiousness, idleness, danger to health, and shiftless indifference in family welfares." Historically, these acts and attitudes are not but 80 some years old and despite the 1978 American Indian Free Exercise of Religion Resolution, little change seems apparent, although in some manner, descendants of the Sovereign Nations, some, are in fact trying to preserve and protect their values and in a manner consistent with those ancient customs and belief's handed down to them by their ancestors. Hollywood has done an injustice, there's no question about that, for many a film has displayed the Indian, his culture and even his belief in a manner that has promoted much of the New Age activity today. Writer's, Fiction and Non-Fiction, are just as guilty of painting a distorted picture of the culture and belief's, only at times such are the facts that are elaborated on, that often a reader will question the authenticity while some will accept such respects as to being gospel, however, writer's, both Indian and non-Indian have in fact tried to promote an avenue of justice to where some manner of truthful historical regards are indeed exposed. I think there is some relevance in understanding, that some Native American Indians regard the historical past as a tool that can be utilized to reshape the culture and belief's back to its original form, without European Theologies, without a European educational form and most certainly without the help of the New Age. 80 years ago, the U.S. Government and American Society were in fact trying their very best to fully eradicate the culture and belief's of the Sovereign Nations, and the process of assimilation is still a very relevant factor today and New Age is a tool being used, as are the many different Theologies and various forms of educations. In my own opinion, which is not one of higher education, but one of trying to express, mainly to myself, that as time goes on, that hopefully there will come an understanding, that as a writer, I and others, will be able to utilize thoughts to present to readers, that the culture and belief's, do need to be contained, but in their original form and it must be done first through allowing the Sovereign Nation to carry through the holding of these ceremonies, without outside regards, without having non- Indians come in and tell us how wrong we are, when in fact some us have an understanding deep inside that tells us, at one time these things we relate to as culture and belief's, in fact were a power and a strength that worked for our ancestor's thousand of years. Like writing is an art to many, like is the culture and belief's of the Sovereign Nations of the Native American Indian, in that it's presence is a reality and within our hearts lies a truth that expresses only a plea, of please, let us have some time, to gain a foothold of it, so that we can put it in it's proper place as it once was, for within it there lies a matter of discipline that can shape the understanding of human value. Thank you. by, Larry Kibby, E-Mail - kibbey@sierra.net http://www.geocities.com/CapitolHill/Lobby/3786 --------- "RE: Abolish the BIA?" --------- Date: Sun, 03 Aug 1997 06:31:01 -0500 From: Cherokee Observer Subj: TIME TO ABOLISH THE BUREAU? Gary, Oh-see-yoh---I am forwarding this article to you..it pertains not only to our people but to all American Indian Nations..your newsletter reaches many of them, and we thought you might print it..it is already in D.C. on the desks of many Senators..... wah-doh Marvin ------- FORWARD, Original message follows ------- From: "Dario F Robertson" TIME TO ABOLISH THE BUREAU? Proposed Legislative Response to BIA Abuses at CNO by Dario F. Robertson, Legal Correspondent Cherokee Observer For far too long, the Bureau of Indian Affairs (BIA) has operated like a law unto itself in Indian country. As the vast majority of tribal governments know from painful first-hand experience, the BIA routinely operates as if it is above the law, as if it is not required to respect the basic constitutional liberties of Native Americans, as if the right of tribal self-government existed at the whim of BIA bureaucrats. There is no more telling example of the BIA's abuse of power than its reckless and illegal intervention into the internal political affairs of the Cherokee Nation of Oklahoma (CNO) in support of Principal Chief Joe Byrd. The BIA is clearly out of control in Oklahoma. The solution does not lie in the courts. Responsibility for stopping the BIA's abuse of power rests with Congress and with every Indian in the United States who has finally had enough of the BIA. The BIA's patently illegal intervention into CNO internal political affairs warrants an immediate congressional investigation of the BIA's abuse of power in Oklahoma. Congressional hearings should be convened both in Washington, D.C. and on reservations across Oklahoma to give Indian people a chance to tell their elected representatives what is happening to them. The Bureau of Indian Affairs has outlived any usefulness it ever had for American Indians. It is a gross anachronism in an era of tribal self-determination. Most critics of the BIA and a rapidly increasing number of Indians across the country are now calling for the outright abolition of the Bureau of Indian Affairs because its culture of corruption and institutional incompetence runs so deep that any attempt at reform would be futile. Until the BIA is formally abolished, however, there are a number of desperately needed interim legislative reforms that Congress can adopt to help stem the tide of BIA abuses, such as those now making national news in Oklahoma. Due Process Legislation Defining Standards for BIA Intervention in Internal Tribal Disputes As the BIA's recent intervention into internal CNO affairs vividly illustrates, there are no existing regulations or statutory standards defining the appropriate procedures that the BIA must follow when deciding to intervene in an internal tribal dispute. At present, the BIA regularly makes such decisions in secret, on a completely ad hoc basis, without notice to any adversely affected parties and without any kind of public hearing whatsoever. This process of decision, even when made pursuant to BIA regulations, typically violates the constitutionally protected due process rights of adversely affected tribal members, often without effective judicial recourse. In the usual case, the BIA engages in no formal fact-finding process and merely accepts some favored tribal leader's version of events without any corroboration. When a tribal government possesses a judiciary with jurisdiction to resolve an internal political dispute, the BIA is without any jurisdiction to intervene. In the leading case of Wheeler v. Bureau of Indian Affairs, the Tenth Circuit held that "when a tribal forum exists for resolving a tribal election dispute, the [Interior] Department must respect the tribe's right to self-government and, thus, has no authority to interfere." When the BIA must intervene as may be required on rare occasion by statute or tribal law, it must act "so as to avoid any unnecessary interference with a tribe's right to self-government" and in "a manner which is least disruptive of tribal sovereignty and self-determination." As a matter of basic due process of law under the Fifth Amendment of the U.S. Constitution, the BIA should, when required to intervene in an internal tribal dispute, afford all affected parties prior notice and a hearing in light of the very weighty liberty and property interests at stake in any such decision to intervene. Congress has already provided by statute that the BIA may not, in the absence of an "immediate threat to safety," rescind a funding contract with an Indian tribe without providing prior "notice and a hearing" and, even when an "immediate threat to safety" exists, the BIA must provide a hearing within ten days of rescinding a funding contract on an emergency basis. It would seem highly anomalous that Congress would legislate such strict due process standards for any BIA decision to rescind a funding contract, but leave the BIA free to intervene in internal tribal political disputes at the whim of BIA bureaucrats. Clearly, any BIA decision to intervene in an internal tribal dispute has just as much or more impact on the right of tribal self-government as a contract rescission decision. Nearly 20 years ago, Alvin J. Ziontz, a leading practitioner of federal Indian law, objected to the BIA's departure from due process standards in rendering tribal recognition decisions and called on the Interior Department Secretary to "afford tribal institutions and officers the same measure of due process heretofore afforded tribal governments by federal courts. At the very least, the Secretary should promulgate clear standards for administrative intervention and insure that all parties be afforded notice and the opportunity to be heard." No such standards for BIA intervention currently exist, allowing BIA officials to make totally unprincipled, ad hoc intervention decisions on whatever basis they deem appropriate without prior notice or a hearing. Congress should enact new legislation which affirmatively requires the BIA to (1) give all affected parties prior notice of an intent to intervene in an internal tribal political dispute, (2) allow any affected party to request the disqualification of the BIA decision maker charged with the responsibility of making the decision to intervene, (3) give all affected parties a formal initial hearing on the record before an impartial hearing officer under the Administrative Procedure Act, (4) allow any adversely affected party to appeal any initial decision to an administrative law judge, rather than to any political appointee or lay bureaucrat within the Interior Department such as the Assistant Secretary ^Ö Indian Affairs, and (5) provide for immediate federal court jurisdiction in the event that the constitutional rights of any affected party are threatened with irreparable injury, thereby relieving any such party of any obligation to exhaust administrative remedies prior to seeking federal court relief. Although BIA decisions to intervene in internal tribal political disputes may be appealed under Interior Department administrative regulations, those regulations are constitutionally deficient because they do not mandate prior notice or an initial hearing, nor do they even require any post-intervention hearing at all. Escape clauses allow the Assistant Secretary - Indian Affairs to preempt any appeal and prevent it from reaching an impartial administrative tribunal. Any appeal is subject to indefinite delay at the whim of the Assistant Secretary. The appeal regulations are, in short, a Kafkaesque nightmare of unnecessary procedural complexity with no guarantee that an appeal will ever be heard on the record before an impartial decision maker. They are plainly unconstitutional under the Due Process Clause of the Fifth Amendment of the U.S. Constitution. [Please see the flowchart of the Interior Department's incoherent administrative appeal process appended to this article.] Congress needs to act now to protect the due process rights of Native Americans across the country from arbitrary BIA intervention decisions by enacting new legislation mandating fair procedures consistent with the constitutional requirements of due process of law. Federal Funding for Tribal Dispute Resolution Systems In recent years, leadership disputes have plagued tribal government across the country. They frequently result in the effective paralysis of the afflicted tribal government and may even lead to violent confrontation. The lack of strong, independent tribal justice systems in most tribes makes resolution of these disputes especially difficult. Where tribal justice systems exist, they often have extremely limited powers and may be overridden by a recalcitrant tribal council, as has so clearly transpired at CNO under the Byrd administration. Tribes across the country are in desperate need of more federal funding for tribal dispute resolution systems. Great care should be taken in planning such systems because the reflexive adoption of a court system modeled after the state or federal paradigm is likely to prove highly ineffective and may be perceived by many Native Americans as illegitimate. Adversarial dispute resolution processes such as those which occur in state and federal courts are often alien to the culture, values and traditions of many tribes. Adversarial processes in the American system make conflict public and tend to entrench adversaries, while giving lawyers an extremely influential role in controlling the course of the adversarial proceedings. Rather than reflexively adopt a state or federal judicial model, tribes should experiment with alternative dispute resolution (ADR) methods, while drawing on their rich traditions. This will result in a more informal, less threatening tribal dispute resolution process. Once such a tribal or intertribal system is in place, the BIA's jurisdiction to intervene in internal tribal disputes will terminate and the BIA will be bound by the result reached by internal tribal dispute resolution processes. Congress must allocate the funds promised the tribes in the Indian Tribal Justice Act of 1993 (ITJA), which authorized $50 million "for each of the fiscal years 1994, 1995, 1996, 1997, 1998, 1999, and 2000" in funding for tribal justice systems. Although $50 million per year has been authorized, the BIA has been allocating only about $12 to $15 million per year for tribal justice systems since the passage of ITJA. For example, Professors Goldberg-Ambrose and Champagne report that "[a]s of 1995, the BIA was allocating $80,440,000 per year for tribal law enforcement and another $14,102,000 for Indian judicial services." Congress and the BIA must allocate at least $50 million per year nationwide for both intertribal justice and alternative dispute resolution systems if tribes hope to develop viable tribal governments after decades of BIA intervention and abuse. No system of government can be expected to function effectively without an institutional means of dispute resolution or a forum in which to enforce its laws, yet many tribal organizations across the country have been expected to do just that. With the effective suspension of the Cherokee judiciary, CNO has recently added its name to the list of tribes without functioning tribal justice systems, a situation which must be deemed a per se violation of the due process rights of all affected tribal members under the 1968 Indian Civil Rights Act. By grossly under funding tribal justice systems, the BIA has made it impossible for tribes to function fairly and effectively with the result that they have been plagued by political instability and internal discord. The instability of tribal governments is, thus, not primarily the fault of Indian tribes, but of a federal system which so underfunds tribal judicial institutions that no other result is practically possible. To see the truth of this conclusion, one has only to ask how long the state or federal government could function effectively without a judiciary. Elimination of BIA Tribal Attorney Approval Powers Under the Indian Reorganization Act (IRA) of 1934, the BIA is expressly granted the power to approve the "choice of [legal] counsel and fixing of fees" made by an IRA Indian tribe. The BIA also claims the same power to approve tribal attorney contracts for tribes not organized under the IRA. The BIA has consistently used this power to prevent tribes from obtaining competent legal counsel and clearly favors for approval attorneys who can be expected to cooperate with the BIA, even to the extent of compromising the zealous advocacy of the tribal client's interests. As early as 1934, Congress heard complaints about the BIA's "pet lawyers" who ingratiated themselves with the BIA and were routinely favored for contract approval. Conversely, attorneys who represent their tribal client's interests against the dictates of the BIA find themselves highly disfavored candidates for contract approval and subject to BIA harassment. The current attorney contract approval process creates inherent conflicts of interest for the tribal attorney. On the one hand, the tribal attorney owes a primary duty of loyalty to the tribal client and is ethically bound to act zealously in the tribe's best interest. On the other hand, the attorney is subject to the "hire and fire" power of the BIA. Thus, when the tribal attorney acts in what he or she believes to be the tribe's best interest in accordance with the expressed wishes of his client, but against the dictates of the BIA, the tribal attorney is vulnerable to the undue influence of the BIA. The BIA can retaliate against the independent tribal attorney by refusing to approve additional attorney contracts, harassing uncooperative attorneys with groundless investigations while disingenuously claiming to be merely discharging the BIA's trust responsibility, or subtly threaten the tribal attorney with termination or imply that approval for future tribal contracts will be denied. The result is that BIA approval powers over tribal attorney contracts threaten the independence of the professional judgment of tribal attorneys and should be eliminated. No other professional consultant retained by tribal governments is subjected to such BIA scrutiny as tribal attorney candidates: not accountants, auditors, management consultants nor any other class of independent contractors. The reason is obvious. Attorneys empower tribal governments. They provide tribal governments with the expertise and know-how necessary to combat BIA abuses of power. Attorneys can assist the tribal government in drafting tribal codes, organizing tribal justice systems, incorporating tribal businesses, promoting economic development and developing the institutional infrastructure necessary for successful tribal self-government. In short, tribal attorneys represent a grave threat to the power and control of the BIA over reservations. They threaten tribal dependence on BIA technical assistance and thereby call into question the reason for the BIA's existence. Thus, the BIA consistently makes the tribal attorney approval process as ridiculously long and drawn-out as possible, aggressively pursuing any bureaucratic option that will delay the approval process and discourage the attorney from pursuing his or her candidacy. The BIA's obstruction of the effective legal representation of Indian tribes has profound constitutional implications. By arbitrarily denying approval to politically disfavored tribal attorney candidates, the BIA not only infringes the First Amendment rights of the attorney to free political expression, it obstructs a tribe's free access to the courts in violation of the First Amendment right to petition the government for a redress of grievances. In response, legislation should be immediately introduced in Congress (1) amending those sections of Title 25 which require the special approval of the Secretary of the Interior of an Indian tribe's choice of legal counsel and the terms of employment of such legal counsel and (2) guaranteeing to Indian tribal governments the right to retain the legal counsel of their choice. The following draft bill, using a definition of "Indian tribe" substantially similar to that found at 25 U.S.C. § 1301(1) (1995), offers lawmakers a useful starting point: A BILL To grant every Indian tribe the right to employ legal counsel of its own choosing without obtaining the approval of the Secretary of its choice of counsel or the terms of employment of such counsel. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Right to Tribal Counsel Act of 1997'. SECTION 2. FINDINGS. The Congress finds and declares that--- (1) the right to employ legal counsel of its own choosing is an inherent part of the sovereign right of tribal self-government; (2) tribal legal counsel must be free to exercise independent professional judgment when retained by an Indian tribe to effectively and zealously represent the interests of tribal clients; (3) effective tribal legal representation is essential to the protection and promotion of tribal self-determination, self-reliance and the inherent sovereignty of Indian tribes; and (4) Indian tribes are in urgent need of improved access to legal counsel due to unnecessary and outdated legal restrictions on their right to counsel. SECTION 3. DEFINITIONS. For purposes of this chapter: (1) "Secretary" means the Secretary of the Interior or his or her authorized representative; (2) "legal counsel" means any attorney at law licensed to practice law in the jurisdiction of any State; and (3) "Indian tribe" means any Indian tribe, band, nation, pueblo, or other organized group or community, including any Alaskan Native entity, subject to the jurisdiction of the United States and recognized as possessing the powers of self-government. SECTION 4. Tribal Right to Free Choice of Legal Counsel. Every Indian tribe shall have the right to employ legal counsel of its own choosing without obtaining the approval of the Secretary of its choice of counsel or the terms of employment of such counsel. SECTION 5. Repeal of Inconsistent Statutory Provisions. [This section will contain language amending any provision of Title 25 which expressly or implicitly requires an Indian tribe to obtain the approval of the Secretary of (1) its choice of legal counsel or (2) the terms of employment of such legal counsel, including any language requiring such approval in 25 U.S.C. §§ 81, 81a, 81b, 82 and 476.] Although Congress enacted legislation in 1968 that requires the BIA to grant or deny an application for attorney contract approval within 90 days, the BIA can frustrate the purpose of this law by merely rejecting an application on completely frivolous grounds after a ninety day review leaving the applicant to (1) re-apply and wait for an additional 90 days for BIA review of an amended contract, (2) challenge the denial administratively and endure a delay of up to two years or more while the appeal winds its way through the Interior Department's protracted and indeterminate appellate process, or (3) file a costly, time-consuming lawsuit in federal court challenging the BIA's contract denial as infringing constitutionally protected rights. In any case, bad faith BIA contract denial can effectively preclude retention of any attorney the BIA believes will effectively represent the tribe and thereby threaten its arbitrary authority. These concerns are not hypothetical. The author of this article, attorney Dario F. Robertson, who has personally filed two successful lawsuits against the BIA, has been targeted for harassment by the BIA. Since December 1996, the Quapaw Tribe of Oklahoma has been attempting to retain Mr. Robertson and local Oklahoma counsel, Ms. Kathy Carter-White, as tribal attorneys. Their first set of contracts was rejected by the BIA because there was a single inconsequential typographical error in the text of one of the contracts and because the contracts were inadvertently submitted sequentially instead of simultaneously by tribal officials. The typographical error was corrected and the contracts were then re-submitted simultaneously. They were recently rejected nearly one week after the 90 review period had expired. By operation of federal statute, BIA failure to grant or deny a tribal attorney contract application within 90 days results in automatic approval. The BIA nonetheless incorrectly maintains that its late denial is legally effective, compelling the two attorneys to seek redress in federal court. The contracts rejected as unacceptable by the BIA in Oklahoma were approved by the BIA in California with only a single minor reservation. In fact, if an attorney applicant uses a contract different from the BIA's poorly drafted "tentative form contract," BIA regulations require the attorney to first submit an unsigned contract for pre-execution approval before submitting the signed contract a second time for post-execution approval. According the applicable federal regulations, "[w]hen the attorney or tribe proposing to execute a contract desires to make substantial changes in the tentative form [contract drafted by the BIA], the proposed changes should be submitted through the superintendent to the Area Director for approval as to form prior to execution of a contract." It is revealing to note that the BIA's tentative form contract includes a provision that excludes lawsuits against the federal government from the scope of the tribal attorney's representation, thereby preventing the tribal attorney from suing the BIA without the BIA's own consent. In fact, the BIA's tentative form contract is so skeletal and so obviously adverse to the interests of the tribal client that attorneys risk committing malpractice by signing it. Only by freeing Indian tribes of the outdated, paternalistic, bureaucratic requirement of obtaining BIA approval of its choice of legal counsel will the unmet legal needs of Indian tribes have any chance of being addressed with the effective assistance of legal counsel. Conclusion The BIA's recent intervention into the internal affairs of the Cherokee Nation of Oklahoma is not unique. The same kind of illegal administrative decisions which the BIA has taken in Tahlequah have occurred over and over again on Indian reservations across the country. The BIA's abuses do not normally come to light because many Indian tribes do not have access to effective legal counsel, lack the financial resources to litigate or even publicize their claims and are often unaware of their legal rights. That is why it is so important for Congressional representatives to carefully examine the abuses that have occurred and continue to occur in the case of the Cherokee Nation of Oklahoma at the hands of BIA officials. The Cherokee Nation of Oklahoma offers congressional policymakers a rare glimpse into the secretive realm of arbitrary BIA administrative decision making. The Cherokee Observer has documented a shocking litany of BIA abuses in the articles it has published on the CNO's constitutional crisis during the last several months. These abuses demand immediate congressional attention. To ignore them for even a moment is to deny the Cherokee people the same constitutional rights enjoyed by every other American citizen. To refuse to take appropriate legislative action is to admit that the promise of American democracy has excluded Native Americans and denied them equal justice under law. Native Americans, never living in any state in sufficient numbers to concern the vast majority of congressional representatives, are trapped in a hopelessly antiquated, dysfunctional administrative system riven by incoherent, internally inconsistent federal policies. When Native Americans seek federal court relief for BIA civil rights violations, their claims may be dismissed because the affected tribe cannot be joined as a necessary and indispensable party, thereby allowing the BIA to hide behind the misplaced shield of tribal sovereign immunity. When they seek federal redress against puppet tribal governments manipulated by the BIA, they may be thrown out of court because tribal governments enjoy immunity from suit. If, as is usually the case, there is no genuinely independent, competent tribal court in existence to hear their claims, their most basic civil rights may be violated with impunity and with no hope of redress. When they turn to their congressional representatives, too often their pleas are ignored because there are not sufficient numbers of Indians in that district to constitute a politically significant voting block. Wherever they turn, no one will listen. Isolated, impoverished and socially marginalized on remote reservation, Native Americans struggle desperately to be heard over the din of wealthy vested interests and self-serving government bureaucrats. Their current situation is not unlike that of Afro-Americans before the dogma of "separate but equal" was exposed by the Supreme Court as a cruel euphemism to disguise a grotesque system of racial discrimination. Like blacks living in the shadow of segregation, Native Americans must endure the degrading hypocrisy of administrative policies that continually undermine their human dignity and personal liberties in the name of "federal trust responsibility." Like some Orwellian "Big Brother," the BIA publicly praises its own self-restraint when its excesses are most conspicuous, asserts its most reverent regard for tribal sovereignty when acting to subvert authentic self-determination and invariably pleads its innocence the loudest when its guilt is most painfully apparent. Although its ploy is transparent, its power is terrifyingly real and when the BIA acts it brings the full weight of the federal government behind it, often crushing any recalcitrant opponents in its way. Native Americans often feel themselves to be hopelessly alienated and entrapped by the reservation system in much the same way that the metaphorical prisoner in W.E.B. Du Bois' allegory of the "dark cave" felt alienated and entrapped by institutionalized racial segregation in the following passage from his 1940 book, Dusk of Dawn: It is as though one, looking out from a dark cave . . . , sees the world passing and speaks to it; speaks courteously and persuasively showing them how these entombed souls are hindered in their natural movement, expression, and development; and how their loosening from prison would be a matter not simply of courtesy, sympathy and help to them, but aid to all the world. One talks on evenly and logically in this way but notices that the passing throng does not even turn its head, or if it does, glances curiously and walks on. It gradually penetrates the minds of the prisoners that the people passing do not hear; that some thick sheet of invisible but horribly tangible plate glass is between them and the world. . . . [T]he people within . . . may scream and hurl themselves against the barriers, hardly realizing in their bewilderment that they are screaming in a vacuum unheard and that their antics may actually seem funny to those outside looking in. They may even, here and there, break through in blood and disfigurement, and find themselves faced by a horrified, implacable, and quite overwhelming mob of people frightened for their own existence. Like the "entombed souls" of Du Bois' allegory, Native Americans are pounding against the transparent walls of their prison demanding justice. Their cries for redemption can no longer be trivialized and dismissed. Their voice must be heard. Prompted by their own tribal constitutional crisis, perhaps the Cherokees will lead the way again, as they have so often in the past, and turn tribal tragedy into a victory for all Native American people. The time to abolish the Bureau has unmistakably arrived and the best evidence of BIA excesses is found in its lawless support of a lawless tribal government headed by Principal Chief Joe Byrd. The time for comprehensive reform in federal Indian policy has come. Let it begin in Tahlequah. Endnotes 1 See, e.g., Michael Satchell and David Bowermaster, "The Worst Federal Agency: Critics Call the Bureau of Indian Affairs a National Disgrace," U.S. News & World Reports, November 28, 1994, pp. 61-64. 2 On the futility of any attempt to reform the BIA short of its abolition, see E. Cahn & D. Hearne, eds., Our Brother's Keeper: The Indian in White America 147-55 (1970). 3 Wheeler v. United States Department of the Interior, Bureau of Indian Affairs, 811 F.2d 549, 553 (10th Cir. 1987); Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983); R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 983 (9th Cir. 1988); Southland Royalty Co. v. Navajo Tribe of Indians, 715 F.2d 486, 489 (10th Cir. 1983); Potts v. Bruce, 533 F.2d 527, 529 (10th Cir. 1976); Prairie Band of Potawatomie Tribe of Indians v. Udall, 355 F.2d 363, 367 (10th Cir. 1966). 4 Wheeler, 811 F.2d at 553, supra note 3. 5 Crooks v. Area Director, Minneapolis Area Office, Bureau of Indian Affairs, 14 I.B.I.A. 181, 183 (1986). 6 25 U.S.C. § 450m (1995) provides that a funding contract with an Indian tribe may be rescinded if the Secretary of the Interior determines that the tribe's performance under the contract involves (1) the violation of the rights or endangerment of the health, safety, or welfare of any persons, or (2) gross negligence or mismanagement in the handling or use of funds provided to the tribal organization under such contract, but only if the Secretary affords the affected tribe prior notice and a hearing. If there is an immediate threat to safety, however, the Secretary may immediately rescind the contract, but is still required to give the affected tribe a post-rescission hearing within ten days of the rescission. Id. 7 Ziontz, After Martinez: Civil Rights Under Tribal Government, 12 U.C. Davis L. Rev. 1, 33 (1979) (emphasis added). 8 5 U.S.C. § 554 (1995). 9 For example, either the Assistant Secretary - Indian Affairs (ASIA) or the Interior Board of Indian Appeals (IBIA) could determine that this dispute concerns "[m]atters decided by the Bureau of Indian Affairs through exercise of its discretionary authority" under 43 C.F.R. § 4.330(b)(2) and must, therefore, be referred to the ASIA for indefinite "further consideration" under 43 C.F.R. 4.337(b) without any guarantee whatsoever of a hearing or a final determination of plaintiffs' claim within any definite timeframe. 25 C.F.R §§ 2.1-2.21 (1996); 43 C.F.R. §§ 4.330-4.340 (1996). 10 See, e.g., Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 587 (1989) (agency review void where there is no "reasonable time limit" on consideration of claims); Barry v. Barchi, 443 U.S. 55, 61 (1979) (If no hearing is held prior to a suspension decision, a "prompt post-suspension" hearing must be held "without appreciable delay." Thirty days was too long in Barchi.) 11 25 U.S.C. §3621(b) (1995). 12 C. Goldberg-Ambrose & D. Champagne, A Second Century of Dishonor: Federal Inequities and California Tribes 49 (March 27, 1996) (a report prepared by the UCLA American Indian Studies Center for the Advisory Council on California Indian Policy) (emphasis added) (hereinafter cited as "A Second Century of Dishonor"). 13 Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8) (1995). 14 25 U.S.C. § 476 (1995). 15 81 U.S.C. § 81 (1995). 16 R. Barsh & J. Henderson, The Road: Indian Tribes and Political Liberty 256 n.28 (1980). 17 The author of this article, attorney Dario F. Robertson, has been aggressively harassed by the BIA and has twice had a tribal attorney contract rejected for no coherent reason. The BIA knows that if it can harass or intimidate the tribal attorney into abandoning his or her client, the tribe will be effectively helpless to pursue any legal remedies it has against the BIA. Needless to say, BIA harassment and interference with the client-attorney relationship is an actionable violation of the constitutionally protected rights of the adversely affected attorney and the tribal client. 18 25 U.S.C. § 1331 (1995). 19 25 C.F.R. § 89.18 (1996). 20 BIA Tentative Form Contract § 2. 21 W. Du Bois, Dusk at Dawn: An Essay toward an Autobiography of a Race Concept 130-31 (1940), quoted in K. Karst, Belonging to America: Equal Citizenship and the Constitution 26 (1989). --------- "RE: 9th Circuit Court Decision-Part I" --------- From: redorman@plix.com (Dorman, Robert ) Date: Tue, 29 Jul 1997 23:01:50 -0800 Subj: 9th Circuit Court Decision-Part I MASAYESVA V. HALE 9417031 9515915 9417032 9515029 , Docket No. 94-17022 Filed 08 July 1997: Az: [TEXT] [FAX] http://www.law.vill.edu/Fed-Ct/Circuit/9th/July97.html This opinion was acquired from the 9th Circuit and enhanced for distribution on the Internet by The Villanova Center for Information and Policy. FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VERNON MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe, No. 94-17022 D.C. No. Plaintiff-Appellee, CV-76-00936-EHC v. OPINION ALBERT HALE, President of the Navajo Nation; NAVAJO NATION, Defendants-Appellants. FERRELL SECAKUKU, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, Plaintiff-Appellant-Cross-Appellee, v. Nos. 94-17031 ALBERT HALE, President of the 95-15015 Navajo Nation; NAVAJO NATION; D.C. No. UNITED STATES OF AMERICA, CV-58-00579-EHC Defendants-Appellees-Cross-Appellants. 7983 FERRELL SECAKUKU, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, Plaintiff-Appellee-Cross-Appellant, v. Nos. 94-17032 ALBERT HALE, President of the 95-15029 Navajo Nation; NAVAJO NATION; D.C. No. UNITED STATES OF AMERICA, CV-58-00579-EHC Defendants-Appellants-Cross-Appellees. Appeals from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding Argued and Submitted October 17, 1995--San Francisco, California Filed July 8, 1997 Before: Mary M. Schroeder, Betty B. Fletcher, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Schroeder; Partial Concurrence and Partial Dissent by Judge Fletcher _________________________________________________________________ SUMMARY _________________________________________________________________ 7990 COUNSEL Tim Atkeson, Arnold & Porter, Denver, Colorado, for appellant Hopi Tribe. James M. Balogh and Dale S. Zeitlin, Zeitlin & Balogh, Phoenix, Arizona, for appellees Hale and Navajo Tribe. Lois J. Schiffer and Katherine W. Hazard, Assistant Attorneys General, United States Department of Justice, Washington, D.C., for intervenor United States. _________________________________________________________________ OPINION SCHROEDER, Circuit Judge: I. INTRODUCTION These appeals are part of the long running and emotion scarring controversy between the Navajo Nation and the Hopi Tribe, in which the legislative, executive and judicial branches of the United States have all figured prominently. The dispute has centered on the ownership, control and use of nearly 2 million acres of the Native American reservation land occupying the northeast portion of Arizona and neighboring portions of Utah and New Mexico. These particular cases arise out of specific remedial provisions of the Navajo-Hopi Settlement Act of 1974, 25 U.S.C. S 640d, et seq. (1980) (the "Settlement Act"). The Settlement Act allows partition of reservation land that the courts had declared jointly shared by both tribes, but which had been used for grazing exclusively, and excessively, by the Navajo. The Navajo overgrazing was fostered, in large part, by the Department of Interior, which refused to grant the Hopi grazing permits while simultaneously providing the Navajo with 7991 permits for more grazing than the land could reasonably support. Hamilton v. MacDonald, 503 F.2d 1138, 1146 n.10 (9th Cir. 1974) (explicitly affirming the district court's factual findings regarding the government's responsibility for Navajo overgrazing). In the 1974 Act, Congress expressly authorized litigation between the Hopi and the Navajo for enumerated damages; Congress intended for money to leaven the land related inequalities between the Hopi and the Navajo. The background of this litigation has been recited in nearly 35 years of court decisions and in numerous books and periodicals.1 We provide only a summary here. In 1882, President Chester Arthur by executive order created a 2.5 million acre reservation for the Hopi and "such other Indians as the Secretary of Interior saw fit to settle thereon." Exec. Order of Dec. 16, 1882, reprinted in, Healing v. Jones, 210 F.Supp. 125, 129 n.1 (D. Ariz. 1962), aff'd, 373 U.S. 758 (1963). Under this executive order, the Hopi Tribe enjoyed the right to use and occupy the entire reservation. By contrast, the Navajo who had already settled in the reservation did not gain any immediate rights to the land. Nevertheless, the Navajo continued to use and occupy parts of the 1882 reservation. By 1900, the Navajo population had increased to 1,826. Healing, 210 F.Supp. at 145. In 1920, it reached approximately 2,600, and by 1958, it exceeded 8,800. Id. Despite the Navajo's continued use of the reservation, their right to use the land during this period was unclear, and this caused an ongoing and bitter dispute. _________________________________________________________________ 1 See, e.g., Emily Benedek, The Wind Won't Know Me: A History of the Navajo-Hopi Land Dispute (1992); Jerry Kammer, The Second Long Walk: The Navajo-Hopi Land Dispute (1980); Charles Miller, The Navajo Hopi Relocation and the First Amendment Free Exercise Clause, 23 U.C.S.F. L. Rev. 97 (Fall, 1988); Healing v. Jones, 210 F.Supp. 125, 129 n.1 (D. Ariz. 1962), aff'd, 373 U.S. 758 (1963); Hopi Tribe v. Navajo Tribe, 46 F.3d 908 (9th Cir.), cert. denied, 116 S.Ct. 337 (1995); Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974). 7992 In 1958, Congress authorized litigation to settle title to the 1882 reservation. Id. at 130. A three-judge district court thus examined the question in Healing and found that the Navajo had no right to use the land until 1931, when the Interior Secretary impliedly exercised his authority under the executive order to "settle" the Navajo on the reservation. Id. at 157. The Healing court further observed that all Navajo who immigrated to the reservation between 1931 and 1958 were also impliedly "settled" in the reservation. Id. at 169. Healing held that the Hopi occupied the area known as "land district 6" exclusively, but that the two Tribes held a joint, undivided and equal interest in the remainder, known as the Joint Use Area (JUA). Id. District 6 is 600,000 acres. The JUA is greater than 1. 8 million acres. Unfortunately, the 1962 order did not resolve the dispute. Between 1962 and 1972, the federal government continued to grant grazing permits to the Navajo, while rejecting all Hopi applications. Hamilton, 503 F.2d at 1146 n.10. At the same time, the Navajo intimidated the Hopi and mutilated their cattle. Id. Together, the federal government and the Navajo excluded the Hopi from what Healing had declared a "joint use area." The Hopi thus brought a supplemental action in which they obtained an order of compliance and a writ of assistance enforcing the Healing decision. Our decision affirming the order and the writ, Hamilton, 503 F. .2d 1138, documents in greater detail the exclusion of the Hopi from the JUA. In Hamilton, we noted that although the permits enabled the Navajo only to eke out an existence, terrible and destructive overgrazing occurred nonetheless; the carrying capacity of the range was simply insufficient. Id. at 1145 (JUA is "an overgrazed, harsh and inhospitable area which yields little above a subsistence living"). The Hamilton order required the Navajo to, among other things, reduce its livestock and to allow the Hopi to share the 7993 land. Id. at 1142 n.2. It also required the federal government to cancel all grazing permits and issue new ones, without giving either the Hopi or the Navajo permits for more than their half of the land's carrying capacity. Id. Additionally, the order required the government to adopt a plan to achieve the broad goals of the compliance order, including restoration of the range, within 90 days. Id. Both the government and the Navajo failed to do as ordered. In 1974, the Navajo were held in contempt of court. Sekaquaptewa v. MacDonald, No. Civ. 579 PCT (JAW) (D. Ariz. May 29, 1974), aff'd, 544 F.2d 396 (9th Cir. 1976), cert. denied, 430 U.S. 931 (1977). At that time, the Navajo's livestock exceeded, by approximately seven times, the JUA's carrying capacity. Id. at 3-4. Against this background, Congress in 1974 passed the Settlement Act, authorizing partition by court order in the event mediation failed, which it did. A court order of partition was entered, and after appeal and remand, see Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir. 1978), was reconfirmed. The Settlement Act itself called for partition to achieve as equal a division as was practicable, 25 U.S.C. S 640d-5(d), while at the same time expressly directing that population centers should not be divided, 25 U.S. C. S 640d-5(b). The legislation also called for measuring the value of the land, for purposes of division, as if the grazing capacity were restored. 25 U.S.C. S 640d-5(d). In an effort to adjust any imbalance that might result from an unequal division, and to compensate the Hopi for both past exclusion from grazing the land and damage done to the land by Navajo overgrazing, Congress authorized several actions for money damages. So that the Hopi and the Navajo could sue one another and join the United States as a party, Congress waived immunity for all three sovereigns. 25 U. S.C. S 640d-5. In Hopi Tribe v. Navajo Tribe, 46 F.3d 908 (9th Cir.) (the "rent case"), cert. denied, 116 S.Ct. 337 (1995), we affirmed a judgment awarding the Hopi rent, pursuant to S 640d-15(a) 7994 of the Settlement Act, for the post-partition presence of Navajo homesites on the Hopi half of the partitioned land. We also remanded the Hopi's award of rent for the post-partition (1979 to 1984) grazing of Navajo cattle and sheep on the Hopi half of the partitioned land, so that the district court could review the merits of the Navajo challenge to the award. We now have three Settlement Act cases before us on appeal. We review first a judgment entered in favor of the Hopi, pursuant to S 640d-17(a)(2), for the "fair value of the grazing and agricultural use" by the Navajo of the Hopi's one-half interest in the JUA from 1962 to 1979; this is known as the "use case." The second appeal, known as the "owelty case", arises under S 640d-5(d), in which Congress authorized an action for the difference in value between the land awarded to the Hopi Tribe (the HPL) and the land awarded to the Navajo Nation (the NPL). The district court ruled the division was roughly equal and entered judgment denying any relief. In the third appeal, we consider an action pursuant toS 640d-17(a) (3) by the Hopi against both the United States and the Navajo to recover damage to the JUA caused prior to partition (the "damage case"). In the damage case, the district court entered judgment against the Navajo but refused to hold the federal government liable, finding that the United States had not acted unreasonably in its efforts to protect the JUA from damage. The Navajo appeal the judgment in the use case and the Navajo and the Hopi both appeal the judgments in the owelty and damages cases. We affirm the use case in its entirety, and in large part, we affirm the owelty and damages cases as well. We discuss each case separately. 7995 II. THE USE CASE, No. 94-17022 A. Background The district court awarded the Hopi $18,187,132 for the Navajo's combined grazing and agricultural use of the Tribe's one-half interest in the JUA from 1962 to 1979. The case was litigated pursuant to 25 U.S.C. S 640d- 17(a)(2), which a