The Skinny

From Wampum (new and improved!), a debunking of the myth that the Cobell plaintiffs were offered $7 billion to settle the case and rejected it, the implication being they got what they deserved for being greedy. Never happened. The government never offered a dime to resolve the Cobell suit. And now you know. Also, Cobell is definitely appealing. I wish them luck, of course, but unless Obama wins and appoints one or two new justices before this hits the Supreme Court, I won't be holding my breath.

The More Things Change...

Judge James Robertson awarded the paltry sum of $455.6 million to the Cobell plaintiffs for a century of mismanagement of Indian trust funds by the Federal government. The legal equivalent of a penny tip, as noted by Wampum. Discussion at John Cornsilk's Place. An appeal will surely follow, but given the anti-Indian attitude of the current Supreme Court, this case could very well end up being yet another example of the one overriding principle of Indian Law: Indians always lose.

In a related story, the 9th Circuit has ruled that pouring massive amounts of urine on the sacred San Francisco Peaks does not violate the religious freedoms of the Navajo. I won't hold my breath waiting for the same sort of outrage that erupted at Andres Serrano's famous work in the same medium.

John McCain vs. Indian Country

John McCain blows off meeting with Indians to hit the real cultural highlight of South Dakota--Sturgis. Pretty sad, really, given that McCain has had a decent record on Indian issues in the Senate, but evidently hundreds of yuppies pretending to be Hell's Angels is more important. That and the topless women.

UPDATE: Does McCain's willingness to enter his wife in a topless (and frequently bottomless) drunken "Beauty pageant" at a biker bar indicate A) he has no idea what goes on at these things and is therefore a latte-sipping elitist; or B) he does know and is just a sexist jerk? For extra bonus points, what do you think the MSM would be doing if Obama had made the same comments in the same venue?

Freedmen Decision

The DC Court of Appeals has ruled that the Cherokee Nation cannot be sued without its consent. However, the decision leaves open the possibility that individual tribal officials can be sued for violating the 1866 Treaty. Discussion of the issue at John Cornsilk's Place. Links to the briefs at Turtle Talk.
Based on a very limited analysis of the decision, it seems to me that if the trial court (which, remember, ruled that CN had waived sovereign immunity) allows suit against the Principal Chief and the Tribal Council individually, then not much will have changed, though I'm curious as to what the Freedmen's remedy would be if they prevail under those conditions.

UPDATE: More on the story from Indian Country Today.

A Little Good News

Senator Byron Dorgan (D-North Dakota) has introduced a bill to address the epidemic of white-on-Indian crime in Indian Country. While far short of a full restoration of sovereignty, it does strengthen the power of tribal courts and tribal police and force some measure of accountability on the Department of Justice. It's a good start, but Congress needs to go further and repeal the odious Major Crimes Act outright and explicate overturn the Oliphant decision (which they can do since the case was based on a transparently false reading of Congressional intent or rather the lack thereof).

Wow, Never Saw THAT Coming!

SCOTUS, continuing a 200 year-long trend, again limits tribal jurisdiction. As Justice Ginsburg noted in dissent, "Resolving this case on a ground neither argued nor addressed below, the court holds that a tribe may not impose any regulation -- not even a nondiscrimination requirement -- on a bank's dealings with tribal members regarding on-reservation fee lands." Or, as Turtle Talk succinctly puts it, "The Supreme Court has essentially declared Indian tribes to be nothing more than glorified country clubs, with their authority 'confined to managing tribal land, protect[ing] tribal self-government, and control[ling] internal relations.' Just like your local country club, tribes can only determine who can come on the property, who can be a member, and who can be in charge." As I have often said, if there's one constant in American Indian Law, it's that Indians always lose; precedent, logic, history and the Constitution be damned.

Now, let's wait for the howls of outrage from the major presidential candidates...

(cue chirping crickets)

Hard For Me To Say I'm Sorry

A story I neglected to cover at the time. The government of Canada has officially apologized for its' dreadful, racist Indian residential schools policy. This policy, incidentally, was virtually identical to that of the United States ("kill the Indian; save the Man"). The United States, to date, has never once apologized for any of its policies designed to exterminate the indigenous population of this nation; policies which continue, in a more genteel form, to this very day.

YFZ = NDN?

I initially resisted comparisons between what the YFZ families are going through and the Indian experience of the last two centuries. Tim Giago's column makes a good case, particularly in the context of Indian boarding schools, however I still think the comparison is a strained one. An argument can be made that both the FLDS and Indians were targeted by the government due to their religion and culture, true, but one raid, however mismanaged and ham-fisted, hardly compares to 200 years of cultural genocide. The FLDS lived on that ranch because they wanted to, not because the Federal government seized their homes and herded them there. The FLDS are considered human beings under the law, a distinction not bestowed on Indians until 1879. Family members who objected to the removal of their children were not indiscriminately mowed down by Army howitzers. So, while I continue to believe the FLDS families have been treated badly by the State of Texas, I cannot concede that their level of suffering has approached anything like that which Indians have endured since the founding of America.

In the Immortal Words of Pogo...

..."We has met th' enemy and they is us." Excellent opinion piece from Indian Country Today on the moral (as opposed to merely legal) wrong of the Freedmen disenfranchisement. EBW at Wampum uses the article as the jumping-off point for a wider discussion of internalized self-colonialism, a sort of Stockholm Syndrome whereby the victims become victimizers themselves.

Freedmen Case Before DC Circuit Court of Appeals

From Indianz.com, via Wampum who caught it before I did. I tend to agree with Judge Steven Russell (who comes from a long line of Cherokee Judges) that the panels' questions indicate they don't necessarily believe the Cherokee Nation has to be sued by the Freedmen in order for the Federal Gov't to enforce the Treaty of 1866. So, if that's really what the panel is thinking, does that mean the BIA would disallow the 2003 Constitution? Sever the government-to-government relationship with CN until the Freedmen are guaranteed citizenship? Both of the above? And, of course, we shouldn't get too excited that this will all be resolved anytime soon; whoever is on the losing end of the three judge panel's decision will move for a rehearing en banc (before the entire Court, including the virulently anti-Indian Judge Janice Rogers Brown); whoever loses that will likely appeal to the US Supreme Court. And if it gets into the hands of this Supreme Court, God help us all. If there's anyway for the Freedmen, CN AND tribal sovereignty to ALL lose, this Supreme Court will find it.

UPDATE: And speaking of threats to tribal sovereignty, the Smith Administration has succeeded in having the Delaware Tribe stripped of its Federal recognition (and funding), the first time this has happened since the end of the Termination Era.

It Could Always Get Worse

The case of Plains Commerce Bank v. Long Family Land & Cattle Co. doesn't sound too interesting or important on the face of it. Ultimately, though, it could have a devastating effect on tribal sovereignty if the US Supreme Court limits or eliminates tribal court jurisdiction over civil matters. So far, it doesn't look too promising, given Chief Justice Roberts' ignorant and mocking statements during oral arguments. Sadly, the one constant in Indian Law is that Federal courts in general and the Supreme Court in particular will always, almost without fail, adopt the construction that causes the Indians to lose, no matter how illogical, contradictory or tortured it might be.

Politics & Religion

From the Washington Post, Texas now appears determined to argue that the FLDS Religion, in and of itself, is harmful to children and therefore warrants termination, a strategy that has failed miserably in Arizona and Utah. Now think about that a minute. Indians are used to this sort of attack; US Army fears of Wovoka and his Ghost Dance led to the assassination of Sitting Bull and the Wounded Knee Massacre. But what about the rest of the country? Do you really want the government deciding whether or not your religion is good or bad for your children? Think carefully before you answer. Again, I'm not arguing that child abusers shouldn't be punished. They should. But this kind of standard, having the government judge your religious beliefs, ought to scare Hell out of anybody.

Triple Standard?

The Delaware and the Shawnee have bitter experience with losing recognition and federal funds--at the hands of Chief Chad Smith and the Cherokee Nation. And in other Freedmen-related news, the National American Indian Housing Council is worried that the fight over the Freedmen in Congress could completely derail the NAHSDA.

Quick Freedmen Update

Cong. Barney Frank, the powerful and well-connected Chairman of the House Financial Services Committee, announced he will oppose a conference committee report on HR 2786 (the Native American Housing and Self-Determination Act) unless it contains the Freedmen Rider proposed by the Congressional Black Caucus. So far, all of Chief Smith's intensive lobbying hasn't come to much.

More coverage and thoughtful commentary by my Right Honourable Cherokee Colleague, EBW at Wampum.

Senate to Attach Freedmen Rider

The US Senate is apparently poised to add a measure by the Congressional Black Caucus to cut housing funding to the Cherokee Nation if the Freedmen are disenrolled. Chief Chad Smith has been lobbying heavily against the proposal, which has already passed the House, an amendment to the reauthorization of the Native American Housing and Self-Determination Act. If the NAHSDA passes with the Freedmen rider, the pressure on the Cherokee Nation to reach some kind of settlement will increase dramatically. Unfortunately, I'm not sure there's a compromise left that both sides could sign off on. The Freedmen have a good case, legally and morally, that all Freedmen should remain as citizens. The Smith Administration has backed itself into a corner by refusing to even acknowledge that any of the Freedmen have a legitimate claim.

Obama & Indian Country

Wampum points out a recent missed opportunity in Montana for Obama to hit an easy one out of the park when questioned about the Cobell Trust lawsuit. Obama's a smart guy; given the setting, how could he have not been at least briefed on this issue? A simple, "I fully support the rights of Native Americans who have suffered when the federal government failed to live up to its responsibilities," would've been great. Especially considering that the Bush Administration just responded with insults and mockery to the Cobell plaintiffs' offer to settle for, essentially, 50 cents on the dollar. Indian votes could be very important in states like Montana, North Dakota, Wisconsin, New Mexico and Colorado in a tight election. I'm just sayin'...

I Suppose I Should've Expected This...

Evidently, John Yoo's legal memorandum on the President's absolutely unfettered authority to torture children (but only if he thinks it's REALLY important) relies at least in part on the US Army's history of hunting down and summarily killing Indians who refused to be herded into concentration camps (reservations).

McCain On Indian Issues

Another campaign heard from. No real promises here, just bragging on his record. Whatever else one might think about the Senator from Arizona, he does have a relatively good record (compared to the average white Republican member of Congress) with regard to Indian Country.

Great White Father Knows Best, Part 257

Judge Leeds at the Tsalagi Think Tank analyzes the negative implications of the Oneida land case from Wisconsin, specifically as it would apply to the Cherokee Nation. The upshot is that this decision continues to promote the doctrine that Indians are too stupid to know how to handle our own land and must therefore rely on the benevolence of the Great White Father in Washingtion, in the form of the BIA, through the land-into-trust process. The other effect of continued dependence on land-into-trust (for lands owned in fee simple by the tribes) is that it enables local governments to have an effective veto over what tribes may or may not do (i.e., casinos) on their own land. Another blow to tribal sovereignty.

Latest Freedmen News

The DC Circuit Court of Appeals will hear arguments on whether or not the Freedmen can sue the Cherokee Nation in federal court without the Nation's consent. Federal District Judge Henry Kennedy previously ruled that the Nation's sovereign immunity was waived by the Treaty of 1866 and the 13th Amendment. Hard to predict how this will go; Federal courts have been notoriously unsympathetic to tribal sovereignty.