Post by blackcrowheart on Jun 12, 2006 10:30:46 GMT -5
Bill In Hawaii Ignites Chatter Across West
Is Native Sovereignty A Step Toward Secession?
By Todd Wilkinson, 6-01-06
Ever since the European colonization of North America began, it is an
irrefutable fact that native tribes have suffered from both usurpation
and painful displacement. Some were left uprooted by war waged upon
them, others left scattered by introduced diseases and strife, and still
others had tribal identities frayed through forced assimilation
programs, often carried out in distant cities.
And, of course, some tribal members, by their own choice, became part of
the broader melting pot that is this country.
Can the jigsaw puzzle that was human indigenous America ever be
reassembled?
During the latter half of the 20th century, Congress passed a series of
laws aimed at formally recognizing tribal affiliations in an attempt to
salvage rapidly fading cultures, preserve language and customs, and,
perhaps most importantly, to provide economic and legal resources that
would enable such fractured bands to persist. Invoking treaty rights
that legally affirm their sovereignty as nations separate and apart from
the federal government--yet still existing inside U.S. borders--tribes
are wrestling with what they were and what they might still become.
Some recognized tribes have used the process of legally formalizing
their unique existence to regain portions of ancestral homelands. A
sizeable number have used their land and federal funding to construct
casinos which can serve as powerful economic engines in communities
struggling against unspeakable hardship.
Here, in an essay that follows, Californian Jim Marino, an attorney from
Santa Barbara, offers a provocative commentary on a bill introduced by
U.S. Sen. Daniel Akaka of Hawaii. Mr. Akaka is the first senator of
Native Hawaiian ancestry and the only Chinese American member in the
U.S. Senate.
Akaka's bill, called "The Native Hawaiian Government Reorganization
Act", would more forcefully recognize native sovereignty within the
Hawaiian archipelago and create a new governing body to serve people who
formally qualify as Native Hawaiians. It would grant Native Hawaiians
the same kind of self-governing authority already exercised by Native
Americans in the lower 48 and Alaska.
Testifying in favor of the legislation before the Senate Committee on
Indian Affairs, Hawaii Governor Linda Lingle, a Republican, said: "This
bill is vital to the survival of the Native Hawaiian people, it is vital
to providing parity in federal policy for all native peoples in America,
and it is vital to the continued character of the State of Hawai'i."
However, reporter Duncan Currie of the politically-conservative Weekly
Standard raises the specter, in an opinion piece [read it by clicking
HERE] that some believe the bill, if passed and signed into law by
President Bush, would create two separate divisive cultures and grease
the skids for a possible independence movement leading to secession down
the road.
Proponents of Akaka's bill dismiss those assertions as racially
motivated fear mongering. They accuse the critics of being holdover
colonialists whose rampage of conquest across the New World denied the
human rights of people who were already here.
But Lamar Alexander, the senator from Tennesee, told Currie: "What this
bill does is deny equal protection. We're gradually eroding what it
means to be an American."
In calling attention to what he believes are its misguided broader
implications, Mr. Marino suggests the Akaka bill does little to address
the multitude of real-life challenges facing modern native people. His
piece is sure to stir a response from Westerners who know that the
divide over reconciling cultural, political, economic and racial
conflicts in Indian Country still looms large. He also ponders a
question: What does it take to have a tribe? —Todd Wilkinson
The Rise of Tribal Opportunism In America
By Jim Marino
Given the fact that liberal politicians are stepping all over themselves
to tout cultural diversity we cannot be surprised at the rise of groups,
tribes, bands or communities looking for an advantage over others. These
folks see an opportunity in asserting cultural diversity particularly if
it can be based on sympathy and playing the victim of some historical
injustices to remote cultural ancestors.
In California, we have Indian tribes of 1, 2 and 3 people. One of the
three person "tribes" is the Valley Miwoks. As a recognized non-casino
tribe they receive $1 million a year from the fund paid for by the other
casino gambling tribes. That's not all. They then received over $400,000
in federal grant monies last year alone for "tribal government", "tribal
economic development", "tribal housing", etc.
So we have three people who get over $1.4 million before they do a
thing. Recently two of them teamed up to kick the third out of the tribe
and cut off his share of the pot of gold, and yes, they are trying to
find a backer and a site to build another gambling casino. (We already
have 61 here in California now).
So if the Akaka Bill should pass then it won't be just the Aztlan
movement challenging the treaty of Guadalupe Hidalgo. There will be
several "tribes" of Mexican and Latino peoples laying claim to vast
areas of the Southwest including California, Arizona, New Mexico, Texas
even part of Utah and Colorado. (The Arapaho Indians have recently
claimed the northern half of the State of Colorado but they are willing
to give up that claim if they can get 500 acres near Denver
International Airport for a casino).
I can hear it now: "the Guadalajara band of Mixtec Indians" or "the
Sonora Band of Toltecs" etc.
How long before we see a bill in Congress for the Restoration of the
Creole Nation in the Southeastern United States? Can this folly be
limited to Inuit Eskimo and Aleut tribes, Hawaiians and Indians? There
are 600-plus American Indian tribes now. Under current federal
recognition processes the sky is the limit.
The Bureau of Indian Affairs (BIA), the agency charged with making
recognition determinations entitling recognized tribes to federal
welfare and other benefits is heavily dominated by Indian descendant
employees and bureaucrats.
The answer is to stop this absurdity and take away the economic
advantage of claiming some obscure tribal status and eliminate the
current political obsession with "cultural diversity" as if it were an
objective. We are one culture, the AMERICAN CULTURE which is comprised
of dozens of ethnic cultures, who are all free to preserve their
particular cultural traditions and customs amongst their families and
communities.
That is the essence of American culture, a democracy which allows the
freedom to carry on such traditions. It does not permit separatism by
any group that thinks that they can be a "Sovereign Nation" within this
nation, and be immune from the laws and taxes everyone else must abide
by. There are no such sovereign nations, not even Indian Tribes which
are, for the most part, dependent cultural enclaves.
They have maintained separations from the economic, cultural and
political system of this country largely because the tribal governments
of Indian tribes draw their powers from being the conduit of federal
welfare and who control and manage those revenues that the tribes
generate from the lands they control, which now includes casino gambling
income, and these governments do so largely without any checks and
balances.
Tribal governments do not want to give up that power base so to preserve
it they disguise their true motives by speaking of needing "sovereignty"
and sovereign immunity for the preservation of Native culture and
tradition, as if anyone in modern America would, or for that matter has
any desire to, take that away from them.
Thus the only thing Native American tribes have become under flawed
federal Indian policies are dependent enclaves supported by non-Indian
taxpayers, and ruled in many cases by dynasties and families that
control their enrolled members, often ruthlessly, and those members have
no legal rights nor any effective means to oust these governments.
Under current federal law, the determination of who is or is not a
member of any tribe is exclusively the prerogative of THE TRIBAL
GOVERNMENT with no recourse in any such dispute except to that same
government. Sovereign immunity has allowed these systems to persevere.
Do we need more "tribes" of this nature? Do the residents of Hawaii want
a separate "Nation of Hawaiians" above the laws and taxes that every
other resident of Hawaii must abide by? One percent Hawaiian blood is
enough under the Akaka Bill even though the other 99 percent could be
Russian, Chinese ancestry or, ironically, American (at least for two or
three generations).
The time to put an end to this absurd tribal renaissance in America has
long since past because it is clearly not being utilized to preserve
historic"cultural traditions" as often claimed, but rather it is no more
than an attempt to evade the many laws which apply to everyone
indiscriminately and the taxes that we are all obligated to pay for the
public services and infrastructure we all use.
Mr. Marino is an attorney living in Santa Barbara, California.
CORRECTION: A previous version of this story incorrectly attributed a
quote to Sen. Mitch McConnell. It has been changed to correctly
attribute the quote to Sen. Lamar Alexander.
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By Todd Wilkinson, 6-01-06 | comments (27) | add comment | email this
story | print this story
Comments
By Craig Moore, 6-01-06
Todd, I believe you have added some vinegar and baking soda to the
societal melting pot. I can almost see the witches of Macbeth chanting,
"Bubble, bubble, toil, and trouble..." as they give it a vigorous stir.
;?) Perhaps Canda has the right approach of calling the original
inhabitants First Nations.
By Ryan Griffin, 6-01-06
Obviously, this idiot has never lived on any "Indian" reservation. He's
lumping everyone in with his views of the 1-2-3 person tribes. Give him
a month living on commodity food and driving a rez rocket and I bet his
opinion would change pretty d**n quick!
By Todd Wilkinson, 6-01-06
Craig: Thanks for the Shakespearean metaphor. Alas, words have meaning
but they are hollow if there is no substantive underpinning beneath
their appropriation in the name of political correctness. Until this
country has an open, honest, angry, emotional and wholly-encompassing
discussion about what happened to Native people in America (and in
fairly recent times, all things considered), the descriptions that apply
to their sense of ownership to the continent will continue to mean
nothing. Among all of the reporting I've done in the West, the stories
from Indian Country have been the most rewardingly human on a personal
level. I don't see it so much as tribal leaders being unwilling to move
on with the making of new history; rather it is a matter of having the
government acknowledge and take stock of the involuntary divestiture
that has affected tribes on many levels. Most Native Americans I've met
are proud to be American. The Cobell case dealing with Indian trust fund
money is one example of trying to re-balance the ledger. Elouise Cobell
has brought forth not just the experience of being a Blackfeet; she's a
smart banker.
I think South Africa had it partially right after Mandella was let out
of prison and codified Apartheid was in its final throes. The country
held national televised reconciliation hearings that maybe didn't make
the pain go away but it was a catharsis the nation shared together. Has
that ever happened here? Having a Ken Burns documentary aired on PBS
doesn't cut it. Nor does passing a bill that sets Native Hawaiians down
the same failed path of Nepotism-driven tribal governments as those that
already exist in the Lower 48. There needs to be a better way to native
governance than the paternalistic, broken down, 19th century approach
practiced by the BIA. I think most people on all sides of the issue
would just as soon move on from the past. Imagine having a Congress and
a President that, for starters, initiated a national discussion and
brought televised hearings on the tragedy and problems of Indian Country
into every living room. That would be an American experience everyone
could share in. Would it "fix" things? Probably not. But it wouldn't be
a bad start.
By Craig Moore, 6-01-06
Todd, I'll take this opportunity to relate a recent experience of mine.
Apart from avoiding pink and purple houses in Cut Bank and doing a
little fishing I took my parents to the Lighthouse at Valier for Mothers
Day dinner. What a beautiful day. On the return drive to Cut Bank as we
headed for the Two Medicine bridge I spied a fellow waving a jacket and
in distress on a side road to the highway. I told my folks we needed to
go and see what was needed. We drove up to the gentlemen, a Blood Indian
from Alberta. His wife was at a nearby farmhouse and cornered in a
garage by a large dog. We picked him up and went to get his wife. Their
pickup had run out of gas on the bridge below. Faulty gas gauge and they
had gone to this farmhouse to get help. Noone was home. We took the
couple to another farmhouse and got a gallon of gas and returned to
their vehicle. My father knows a little Blackfeet and conversed with the
gentelmen. They noticed that my father wasn't in the best health and
asked what was wrong. Parkinsons. They were so thankful for the help
that the gentlemen took my father's hand, bowed his head and for about 5
minutes said a blessing and prayer in Blackfeet for his health. The
woman said, " This won't cure him but it will make him feel better." We
shook hands, hugged, and said goodbye.
Too often we focus on our points of friction rather than build on
everyday opportunities to change things just a little.
By sally ryan, 6-01-06
being a journalist, one hopes, means balancing an informative article,
presenting both sides of any debate, and leaving the reader able to form
an informed opinion.
this was a poorly presented article, very clearly pushing a bias
opinion.
one extreme case of a tribe, used to negate the well documented
struggles of most native communities.
native nations,who are "fortunate" enough to be given back small rural
area's as their reservations, are geographically disadvantaged
economically, and if some of them have managed to provide for their
communitites by erecting casino's,then one can only hope it provides
enough to sustain future generations who can focus on reclaiming their
heritage, one of proud,dynamic nations. where are the statisitcs of
those native nations who live below the poverty line? little employment,
and shatterred hopes for the future...lets keep this article real.your
job is to educate the public.
By Todd Wilkinson, 6-01-06
Sally Ryan: Thanks for your thoughts. The whole intent of presenting Jim
Marino's essay was not to do it under some false guise of achieving, as
you say, "balance". You ask: "Where are the statistics of those native
nations who live below the poverty line? little employement, and
shattered hopes for the future....let's keep this article real. your job
is to educate the public." I would assert that most, if not all, New
West readers are well aware of the problems facing Native communities in
the West and beyond. Far from being a secret, it is instead the glaring
exception to the American dream and challenges the myth of prosperity
reaching all. With Marino's piece, we are not pushing a bias. It's
pretty clear that he has a strong point of view and the great thing
about this kind of medium is that people like you, who disagree, can
challenge it. Both sides of the debate were pretty well highlighted in
the set-up piece to Marino's essay. We knew his point of view would
cause New West readers to react. That's a good thing. Tell us, and him,
where you think that he got it wrong.
By Todd Wilkinson, 6-01-06
One more note for Sally Ryan: You have an Australian email address. If
you are writing from Australia, perhaps you could share your
observations on the current state of affairs regarding the Australian
government and aboriginals? I'm sure readers would be interested to hear
your thoughts.
By mike, 6-01-06
This topic, the articles, and comments are interesting. I have been
thinking about the broader topic of "original rights" for a long time,
been troubled by it, but from a different perspective. I tend to be very
conscious of the concept of "equal rights" and of its sister concept of
equitable application of justice and of the underlying concept of
consistency in morals, ethics, and principles. I tend to be very
bothered by the "dark sides" of these concepts, which are
prejudice/discrimination, selfishness, and hypocrisy.
With that said, let me propose that, if this topic were only about
"tribes" seeking to form some greater level of self-governance, it would
not only not be so controversial, but would actually be welcomed by
"entrepreneurs" as possibly opening the door to more exploitation of
"tribal" people and their resources with less outside oversight. The
reason that these trends/efforts draw attention is, of course, that it
is feared that they could lead to "tribes" reclaiming lands and
properties to which they had "original rights" that were taken from them
or that they lost through some questionable set of circumstances. To use
a simpler, less politically correct, perhaps borderline insulting, and
only roughly accurate metaphor, people who now have a legal/financial
stake in American real estate and property are afraid that the Kiowa are
eventually going to try to reclaim Kansas. There may be some foggy
concern about "secession down the road;" but, most of the heartburn
about secession really boils down to fear of losing control over
property and assets.
Now, with the question framed in this way, I have little or no interest
in arguing whether the Kiowa have a right to Kansas in absolute terms.
My interest is in whether morals, ethics, and principles are being
applied consistently, whether justice is being meted out equitably, and
in the questions of how and on the basis of what criteria do we
determine who has or does not have unrelinquished "original rights" to a
piece of property and how and under what mechanism do we respect, repay,
or reinstate such rights.
In this context, I am, obviously, troubled by the perception that
America has never applied its overtly advertised morals, ethics, and
principles to its dealings with the "tribes" or their "original rights"
to properties that they held at the time of the forming of the country.
More to the point and to my level of confusion, America does not now
treat the question of "original rights" consistently between its current
dealings with the "tribes" and its current position on the international
front.
Let me offer some inflammatory examples, prefaced by the disclaimer that
I am neither supportive nor hostile to any of the peoples, cultures,
nations, or states in these examples. As a first example, America has
poured tremendous treasure, spilled the blood of many of our best, and
embroiled the globe in conflict over the course of our support for the
"original rights" of the "Israelis" to the lands they call "Israel" as
opposed to an equal support of the admittedly more recent rights of the
"Palestinians" to what they call "Palestine." The Israelites, after
taking their homeland from the Canaanites, formed a vibrant and noble
culture prior to their effective eviction by the Romans. The
Palestinians then held the land for nearly two thousand years since and
had made many significant human, cultural, and capital investments of
their own. We support, America supports, the "original rights" of the
present day Israelis and their reclaiming of the lands. The Kiowa held
their original lands for millenia beyond any calculation and formed a
vibrant and noble culture prior to eviction perpetrated through a widely
acknowledged combination of private and governmental banditry. Yet, do
we support their reclaiming of their "original rights" to their original
lands? Why is there a difference and why is the difference so easily
accepted by modern America?
We accept our pundits crying foul over the potential for "secession down
the road" and, in fact, fought a civil war to stop secession. Yet, we
seem to have little trouble with the rebalkanization of admittedly
corrupt Yugoslavia or with activities that encourage the secessionist
impulses of the former Soviet republics.
Again, I am neither attacking Israel nor defending the Palestinians,
Serbs, or Russians. I am expressing my confusion over the seeming
inconsistencies that are accepted in our culture. I am also lamenting
the fact that the rest of the world seems to increasingly take note of
these inconsistencies, that our credibility is subsequently questioned,
and that our credibility is one of the foundations of our strength. I am
troubled by the thought that "We're gradually eroding what it means to
be an American."
By Jim Marino, 6-01-06
I never intended to paint all Native Americans with the same broad
brush. There are tribes that are making genuine efforts to better the
plight of their enrolled members. Contrary to one respondent I am not an
idiot who has never set foot on an Indian reservation". I have been on
many reservations and as a lawyer, have represented many tribal memberrs
badly mistreated by their own tribal government.
The answer to the difficult question of the economic well being of
Native Americans is not to create more so called "sovereign nations".
These California tribes, that are mostly Hispanic in origin, are not
only making hundreds of millions in profits from the losses of
non-Indians in casinos in their respective communties, but they are
often using the court created doctrine of "tribal legal immunity from
lawsuit" as a means to evade legal responsibility for all manner of
misdeeds from negiligence and intentional injuries to customers, breach
of contracts made with these "tribes" by non-Indians and in good faith,
sexual harassent of female employees, lack of workers' compensation
protection and a host of other misdeeds. Tribal governments use this
same doctrine to block any attempts by tribal members trying to get
justice in a bona fide court of law.
These are wrongs that even the United States, all state governments and
all foreign nations could never get away with. The U.S. Supreme Court
recognized the absurdity of allowing Indian tribes and their businesses
to literally get away with all manner of misconduct under the atiquated
anachronism of the doctrine when they made their 1998 decision in the
case of Kiowa Tribe of Oklahoma versus Manufacturing Technologies, Inc.
But then after pointing out the absudity of the doctrine, the majority
passed the buck to Congress to correct it by telling them they should
amend the Foreign Commerce Act to Include Indian tribes that do business
with the public and hire non-Indian employees, while claiming they are
"sovereign nations" immune from all the laws protecting employees and
customers and are immune from paying all the taxes needed to provide
public services and infrastructure the tribes and their businesses use
as well as all of the laws protecting the environment, health and
welfare of everyone, Indians included.
What many legitimate Indian tribes do not understand is that these often
ersatz "Indian tribes" that have only some fractional historic claim
(maybe) to any true Native American have teamed up with outside
non-Indian gambling interests to construct highly profitable and
essentially unregulated class III gambling casinos which then make
hundreds of millions of dollars in profits from the losses of
non-Indians and Indian gamblers alike.
Is Native Sovereignty A Step Toward Secession?
By Todd Wilkinson, 6-01-06
Ever since the European colonization of North America began, it is an
irrefutable fact that native tribes have suffered from both usurpation
and painful displacement. Some were left uprooted by war waged upon
them, others left scattered by introduced diseases and strife, and still
others had tribal identities frayed through forced assimilation
programs, often carried out in distant cities.
And, of course, some tribal members, by their own choice, became part of
the broader melting pot that is this country.
Can the jigsaw puzzle that was human indigenous America ever be
reassembled?
During the latter half of the 20th century, Congress passed a series of
laws aimed at formally recognizing tribal affiliations in an attempt to
salvage rapidly fading cultures, preserve language and customs, and,
perhaps most importantly, to provide economic and legal resources that
would enable such fractured bands to persist. Invoking treaty rights
that legally affirm their sovereignty as nations separate and apart from
the federal government--yet still existing inside U.S. borders--tribes
are wrestling with what they were and what they might still become.
Some recognized tribes have used the process of legally formalizing
their unique existence to regain portions of ancestral homelands. A
sizeable number have used their land and federal funding to construct
casinos which can serve as powerful economic engines in communities
struggling against unspeakable hardship.
Here, in an essay that follows, Californian Jim Marino, an attorney from
Santa Barbara, offers a provocative commentary on a bill introduced by
U.S. Sen. Daniel Akaka of Hawaii. Mr. Akaka is the first senator of
Native Hawaiian ancestry and the only Chinese American member in the
U.S. Senate.
Akaka's bill, called "The Native Hawaiian Government Reorganization
Act", would more forcefully recognize native sovereignty within the
Hawaiian archipelago and create a new governing body to serve people who
formally qualify as Native Hawaiians. It would grant Native Hawaiians
the same kind of self-governing authority already exercised by Native
Americans in the lower 48 and Alaska.
Testifying in favor of the legislation before the Senate Committee on
Indian Affairs, Hawaii Governor Linda Lingle, a Republican, said: "This
bill is vital to the survival of the Native Hawaiian people, it is vital
to providing parity in federal policy for all native peoples in America,
and it is vital to the continued character of the State of Hawai'i."
However, reporter Duncan Currie of the politically-conservative Weekly
Standard raises the specter, in an opinion piece [read it by clicking
HERE] that some believe the bill, if passed and signed into law by
President Bush, would create two separate divisive cultures and grease
the skids for a possible independence movement leading to secession down
the road.
Proponents of Akaka's bill dismiss those assertions as racially
motivated fear mongering. They accuse the critics of being holdover
colonialists whose rampage of conquest across the New World denied the
human rights of people who were already here.
But Lamar Alexander, the senator from Tennesee, told Currie: "What this
bill does is deny equal protection. We're gradually eroding what it
means to be an American."
In calling attention to what he believes are its misguided broader
implications, Mr. Marino suggests the Akaka bill does little to address
the multitude of real-life challenges facing modern native people. His
piece is sure to stir a response from Westerners who know that the
divide over reconciling cultural, political, economic and racial
conflicts in Indian Country still looms large. He also ponders a
question: What does it take to have a tribe? —Todd Wilkinson
The Rise of Tribal Opportunism In America
By Jim Marino
Given the fact that liberal politicians are stepping all over themselves
to tout cultural diversity we cannot be surprised at the rise of groups,
tribes, bands or communities looking for an advantage over others. These
folks see an opportunity in asserting cultural diversity particularly if
it can be based on sympathy and playing the victim of some historical
injustices to remote cultural ancestors.
In California, we have Indian tribes of 1, 2 and 3 people. One of the
three person "tribes" is the Valley Miwoks. As a recognized non-casino
tribe they receive $1 million a year from the fund paid for by the other
casino gambling tribes. That's not all. They then received over $400,000
in federal grant monies last year alone for "tribal government", "tribal
economic development", "tribal housing", etc.
So we have three people who get over $1.4 million before they do a
thing. Recently two of them teamed up to kick the third out of the tribe
and cut off his share of the pot of gold, and yes, they are trying to
find a backer and a site to build another gambling casino. (We already
have 61 here in California now).
So if the Akaka Bill should pass then it won't be just the Aztlan
movement challenging the treaty of Guadalupe Hidalgo. There will be
several "tribes" of Mexican and Latino peoples laying claim to vast
areas of the Southwest including California, Arizona, New Mexico, Texas
even part of Utah and Colorado. (The Arapaho Indians have recently
claimed the northern half of the State of Colorado but they are willing
to give up that claim if they can get 500 acres near Denver
International Airport for a casino).
I can hear it now: "the Guadalajara band of Mixtec Indians" or "the
Sonora Band of Toltecs" etc.
How long before we see a bill in Congress for the Restoration of the
Creole Nation in the Southeastern United States? Can this folly be
limited to Inuit Eskimo and Aleut tribes, Hawaiians and Indians? There
are 600-plus American Indian tribes now. Under current federal
recognition processes the sky is the limit.
The Bureau of Indian Affairs (BIA), the agency charged with making
recognition determinations entitling recognized tribes to federal
welfare and other benefits is heavily dominated by Indian descendant
employees and bureaucrats.
The answer is to stop this absurdity and take away the economic
advantage of claiming some obscure tribal status and eliminate the
current political obsession with "cultural diversity" as if it were an
objective. We are one culture, the AMERICAN CULTURE which is comprised
of dozens of ethnic cultures, who are all free to preserve their
particular cultural traditions and customs amongst their families and
communities.
That is the essence of American culture, a democracy which allows the
freedom to carry on such traditions. It does not permit separatism by
any group that thinks that they can be a "Sovereign Nation" within this
nation, and be immune from the laws and taxes everyone else must abide
by. There are no such sovereign nations, not even Indian Tribes which
are, for the most part, dependent cultural enclaves.
They have maintained separations from the economic, cultural and
political system of this country largely because the tribal governments
of Indian tribes draw their powers from being the conduit of federal
welfare and who control and manage those revenues that the tribes
generate from the lands they control, which now includes casino gambling
income, and these governments do so largely without any checks and
balances.
Tribal governments do not want to give up that power base so to preserve
it they disguise their true motives by speaking of needing "sovereignty"
and sovereign immunity for the preservation of Native culture and
tradition, as if anyone in modern America would, or for that matter has
any desire to, take that away from them.
Thus the only thing Native American tribes have become under flawed
federal Indian policies are dependent enclaves supported by non-Indian
taxpayers, and ruled in many cases by dynasties and families that
control their enrolled members, often ruthlessly, and those members have
no legal rights nor any effective means to oust these governments.
Under current federal law, the determination of who is or is not a
member of any tribe is exclusively the prerogative of THE TRIBAL
GOVERNMENT with no recourse in any such dispute except to that same
government. Sovereign immunity has allowed these systems to persevere.
Do we need more "tribes" of this nature? Do the residents of Hawaii want
a separate "Nation of Hawaiians" above the laws and taxes that every
other resident of Hawaii must abide by? One percent Hawaiian blood is
enough under the Akaka Bill even though the other 99 percent could be
Russian, Chinese ancestry or, ironically, American (at least for two or
three generations).
The time to put an end to this absurd tribal renaissance in America has
long since past because it is clearly not being utilized to preserve
historic"cultural traditions" as often claimed, but rather it is no more
than an attempt to evade the many laws which apply to everyone
indiscriminately and the taxes that we are all obligated to pay for the
public services and infrastructure we all use.
Mr. Marino is an attorney living in Santa Barbara, California.
CORRECTION: A previous version of this story incorrectly attributed a
quote to Sen. Mitch McConnell. It has been changed to correctly
attribute the quote to Sen. Lamar Alexander.
Like this story? Get more! Sign up for our free newsletters.
Want to help us improve? Take our reader survey.
By Todd Wilkinson, 6-01-06 | comments (27) | add comment | email this
story | print this story
Comments
By Craig Moore, 6-01-06
Todd, I believe you have added some vinegar and baking soda to the
societal melting pot. I can almost see the witches of Macbeth chanting,
"Bubble, bubble, toil, and trouble..." as they give it a vigorous stir.
;?) Perhaps Canda has the right approach of calling the original
inhabitants First Nations.
By Ryan Griffin, 6-01-06
Obviously, this idiot has never lived on any "Indian" reservation. He's
lumping everyone in with his views of the 1-2-3 person tribes. Give him
a month living on commodity food and driving a rez rocket and I bet his
opinion would change pretty d**n quick!
By Todd Wilkinson, 6-01-06
Craig: Thanks for the Shakespearean metaphor. Alas, words have meaning
but they are hollow if there is no substantive underpinning beneath
their appropriation in the name of political correctness. Until this
country has an open, honest, angry, emotional and wholly-encompassing
discussion about what happened to Native people in America (and in
fairly recent times, all things considered), the descriptions that apply
to their sense of ownership to the continent will continue to mean
nothing. Among all of the reporting I've done in the West, the stories
from Indian Country have been the most rewardingly human on a personal
level. I don't see it so much as tribal leaders being unwilling to move
on with the making of new history; rather it is a matter of having the
government acknowledge and take stock of the involuntary divestiture
that has affected tribes on many levels. Most Native Americans I've met
are proud to be American. The Cobell case dealing with Indian trust fund
money is one example of trying to re-balance the ledger. Elouise Cobell
has brought forth not just the experience of being a Blackfeet; she's a
smart banker.
I think South Africa had it partially right after Mandella was let out
of prison and codified Apartheid was in its final throes. The country
held national televised reconciliation hearings that maybe didn't make
the pain go away but it was a catharsis the nation shared together. Has
that ever happened here? Having a Ken Burns documentary aired on PBS
doesn't cut it. Nor does passing a bill that sets Native Hawaiians down
the same failed path of Nepotism-driven tribal governments as those that
already exist in the Lower 48. There needs to be a better way to native
governance than the paternalistic, broken down, 19th century approach
practiced by the BIA. I think most people on all sides of the issue
would just as soon move on from the past. Imagine having a Congress and
a President that, for starters, initiated a national discussion and
brought televised hearings on the tragedy and problems of Indian Country
into every living room. That would be an American experience everyone
could share in. Would it "fix" things? Probably not. But it wouldn't be
a bad start.
By Craig Moore, 6-01-06
Todd, I'll take this opportunity to relate a recent experience of mine.
Apart from avoiding pink and purple houses in Cut Bank and doing a
little fishing I took my parents to the Lighthouse at Valier for Mothers
Day dinner. What a beautiful day. On the return drive to Cut Bank as we
headed for the Two Medicine bridge I spied a fellow waving a jacket and
in distress on a side road to the highway. I told my folks we needed to
go and see what was needed. We drove up to the gentlemen, a Blood Indian
from Alberta. His wife was at a nearby farmhouse and cornered in a
garage by a large dog. We picked him up and went to get his wife. Their
pickup had run out of gas on the bridge below. Faulty gas gauge and they
had gone to this farmhouse to get help. Noone was home. We took the
couple to another farmhouse and got a gallon of gas and returned to
their vehicle. My father knows a little Blackfeet and conversed with the
gentelmen. They noticed that my father wasn't in the best health and
asked what was wrong. Parkinsons. They were so thankful for the help
that the gentlemen took my father's hand, bowed his head and for about 5
minutes said a blessing and prayer in Blackfeet for his health. The
woman said, " This won't cure him but it will make him feel better." We
shook hands, hugged, and said goodbye.
Too often we focus on our points of friction rather than build on
everyday opportunities to change things just a little.
By sally ryan, 6-01-06
being a journalist, one hopes, means balancing an informative article,
presenting both sides of any debate, and leaving the reader able to form
an informed opinion.
this was a poorly presented article, very clearly pushing a bias
opinion.
one extreme case of a tribe, used to negate the well documented
struggles of most native communities.
native nations,who are "fortunate" enough to be given back small rural
area's as their reservations, are geographically disadvantaged
economically, and if some of them have managed to provide for their
communitites by erecting casino's,then one can only hope it provides
enough to sustain future generations who can focus on reclaiming their
heritage, one of proud,dynamic nations. where are the statisitcs of
those native nations who live below the poverty line? little employment,
and shatterred hopes for the future...lets keep this article real.your
job is to educate the public.
By Todd Wilkinson, 6-01-06
Sally Ryan: Thanks for your thoughts. The whole intent of presenting Jim
Marino's essay was not to do it under some false guise of achieving, as
you say, "balance". You ask: "Where are the statistics of those native
nations who live below the poverty line? little employement, and
shattered hopes for the future....let's keep this article real. your job
is to educate the public." I would assert that most, if not all, New
West readers are well aware of the problems facing Native communities in
the West and beyond. Far from being a secret, it is instead the glaring
exception to the American dream and challenges the myth of prosperity
reaching all. With Marino's piece, we are not pushing a bias. It's
pretty clear that he has a strong point of view and the great thing
about this kind of medium is that people like you, who disagree, can
challenge it. Both sides of the debate were pretty well highlighted in
the set-up piece to Marino's essay. We knew his point of view would
cause New West readers to react. That's a good thing. Tell us, and him,
where you think that he got it wrong.
By Todd Wilkinson, 6-01-06
One more note for Sally Ryan: You have an Australian email address. If
you are writing from Australia, perhaps you could share your
observations on the current state of affairs regarding the Australian
government and aboriginals? I'm sure readers would be interested to hear
your thoughts.
By mike, 6-01-06
This topic, the articles, and comments are interesting. I have been
thinking about the broader topic of "original rights" for a long time,
been troubled by it, but from a different perspective. I tend to be very
conscious of the concept of "equal rights" and of its sister concept of
equitable application of justice and of the underlying concept of
consistency in morals, ethics, and principles. I tend to be very
bothered by the "dark sides" of these concepts, which are
prejudice/discrimination, selfishness, and hypocrisy.
With that said, let me propose that, if this topic were only about
"tribes" seeking to form some greater level of self-governance, it would
not only not be so controversial, but would actually be welcomed by
"entrepreneurs" as possibly opening the door to more exploitation of
"tribal" people and their resources with less outside oversight. The
reason that these trends/efforts draw attention is, of course, that it
is feared that they could lead to "tribes" reclaiming lands and
properties to which they had "original rights" that were taken from them
or that they lost through some questionable set of circumstances. To use
a simpler, less politically correct, perhaps borderline insulting, and
only roughly accurate metaphor, people who now have a legal/financial
stake in American real estate and property are afraid that the Kiowa are
eventually going to try to reclaim Kansas. There may be some foggy
concern about "secession down the road;" but, most of the heartburn
about secession really boils down to fear of losing control over
property and assets.
Now, with the question framed in this way, I have little or no interest
in arguing whether the Kiowa have a right to Kansas in absolute terms.
My interest is in whether morals, ethics, and principles are being
applied consistently, whether justice is being meted out equitably, and
in the questions of how and on the basis of what criteria do we
determine who has or does not have unrelinquished "original rights" to a
piece of property and how and under what mechanism do we respect, repay,
or reinstate such rights.
In this context, I am, obviously, troubled by the perception that
America has never applied its overtly advertised morals, ethics, and
principles to its dealings with the "tribes" or their "original rights"
to properties that they held at the time of the forming of the country.
More to the point and to my level of confusion, America does not now
treat the question of "original rights" consistently between its current
dealings with the "tribes" and its current position on the international
front.
Let me offer some inflammatory examples, prefaced by the disclaimer that
I am neither supportive nor hostile to any of the peoples, cultures,
nations, or states in these examples. As a first example, America has
poured tremendous treasure, spilled the blood of many of our best, and
embroiled the globe in conflict over the course of our support for the
"original rights" of the "Israelis" to the lands they call "Israel" as
opposed to an equal support of the admittedly more recent rights of the
"Palestinians" to what they call "Palestine." The Israelites, after
taking their homeland from the Canaanites, formed a vibrant and noble
culture prior to their effective eviction by the Romans. The
Palestinians then held the land for nearly two thousand years since and
had made many significant human, cultural, and capital investments of
their own. We support, America supports, the "original rights" of the
present day Israelis and their reclaiming of the lands. The Kiowa held
their original lands for millenia beyond any calculation and formed a
vibrant and noble culture prior to eviction perpetrated through a widely
acknowledged combination of private and governmental banditry. Yet, do
we support their reclaiming of their "original rights" to their original
lands? Why is there a difference and why is the difference so easily
accepted by modern America?
We accept our pundits crying foul over the potential for "secession down
the road" and, in fact, fought a civil war to stop secession. Yet, we
seem to have little trouble with the rebalkanization of admittedly
corrupt Yugoslavia or with activities that encourage the secessionist
impulses of the former Soviet republics.
Again, I am neither attacking Israel nor defending the Palestinians,
Serbs, or Russians. I am expressing my confusion over the seeming
inconsistencies that are accepted in our culture. I am also lamenting
the fact that the rest of the world seems to increasingly take note of
these inconsistencies, that our credibility is subsequently questioned,
and that our credibility is one of the foundations of our strength. I am
troubled by the thought that "We're gradually eroding what it means to
be an American."
By Jim Marino, 6-01-06
I never intended to paint all Native Americans with the same broad
brush. There are tribes that are making genuine efforts to better the
plight of their enrolled members. Contrary to one respondent I am not an
idiot who has never set foot on an Indian reservation". I have been on
many reservations and as a lawyer, have represented many tribal memberrs
badly mistreated by their own tribal government.
The answer to the difficult question of the economic well being of
Native Americans is not to create more so called "sovereign nations".
These California tribes, that are mostly Hispanic in origin, are not
only making hundreds of millions in profits from the losses of
non-Indians in casinos in their respective communties, but they are
often using the court created doctrine of "tribal legal immunity from
lawsuit" as a means to evade legal responsibility for all manner of
misdeeds from negiligence and intentional injuries to customers, breach
of contracts made with these "tribes" by non-Indians and in good faith,
sexual harassent of female employees, lack of workers' compensation
protection and a host of other misdeeds. Tribal governments use this
same doctrine to block any attempts by tribal members trying to get
justice in a bona fide court of law.
These are wrongs that even the United States, all state governments and
all foreign nations could never get away with. The U.S. Supreme Court
recognized the absurdity of allowing Indian tribes and their businesses
to literally get away with all manner of misconduct under the atiquated
anachronism of the doctrine when they made their 1998 decision in the
case of Kiowa Tribe of Oklahoma versus Manufacturing Technologies, Inc.
But then after pointing out the absudity of the doctrine, the majority
passed the buck to Congress to correct it by telling them they should
amend the Foreign Commerce Act to Include Indian tribes that do business
with the public and hire non-Indian employees, while claiming they are
"sovereign nations" immune from all the laws protecting employees and
customers and are immune from paying all the taxes needed to provide
public services and infrastructure the tribes and their businesses use
as well as all of the laws protecting the environment, health and
welfare of everyone, Indians included.
What many legitimate Indian tribes do not understand is that these often
ersatz "Indian tribes" that have only some fractional historic claim
(maybe) to any true Native American have teamed up with outside
non-Indian gambling interests to construct highly profitable and
essentially unregulated class III gambling casinos which then make
hundreds of millions of dollars in profits from the losses of
non-Indians and Indian gamblers alike.