Friday, October 30, 2015

Land wars between Native Americans, Washington leaving poorer tribes in the dust

While richer Native American tribes are fighting what they call a hostile Supreme Court and Congress over lands Indians want to reclaim, poorer tribes are the biggest losers in the battle over whose pockets get lined with money, David Rogers reports for Politico. "The fight is less about the justice of returning historic territory and more simply cash—whether measured in the revenues gained from casinos or property taxes lost for local counties. From Oklahoma to California, rich tribes play the political system to protect their share of the gaming markets. Lost is any perspective on the hundreds of poorer tribes just trying to establish some economic foothold and homeland for themselves."

At the center of the debate is the Indian Reorganization Act, Rogers writes. Billed as a "New Deal" by President Franklin Roosevelt, IRA sought to promote "self-governance and tribal sovereignty. Stop-loss provisions were put in place to protect the remaining lands. Most important to the current debate in Congress, the Interior Department was charged with supervising a new lands-to-trust process by which tribes could bring lands under their control. In the decades since, about 8 million acres have been added to Indian land holdings." But in 2009 a Supreme Court "ruling said IRA only narrowly applied to those tribes that can prove they were both recognized and 'under federal jurisdiction' in 1934." (Atlantic Wire map; for a larger version, click on the image)

"The central question most often is where to draw the line between state and tribal authority, two competing sovereigns," Rogers writes. "It’s here where Native American professionals and legal experts say there has been a decided shift beginning with Chief Justice William Rehnquist and now his former clerk, Chief Justice John Roberts. In fact, the 2015 edition of the casebook, American Indian Law: Cases and Commentary, found that the Roberts court had decided 11 Indian law cases thus far and ruled against tribal interests in all but two of them, an 82 percent loss record."

The Obama administration "has sped up approvals for restoring lands to Indian sovereignty; more than 305,000 acres have been approved since 2009," Rogers writes. "And alarm bells are going off now in Congress over new proposed rules drafted by Interior to update the process by which tribes can seek recognition from Washington."

The main problem is that a few powerful tribes control all the money, Rogers writes. For example, in Oklahoma, the Chickasaw, Cherokee and Choctaw "account for almost two-thirds of the market shared with 27 other" tribes. Richard Grellner, an attorney with a long history of representing the Plains Indian tribes, told Rogers, “They essentially created a land rush for the preferred tribes who were given special locations to start to grab the market way ahead of everybody else and before the rules were equally applied. Everything since then has been to move the goal posts to protect what was previously done.”  (Read more)

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