POSTED ON MAY 9, 2012:
UN Rep Listens to Tribes
Native Americans highlight struggle for equal treatment.
It's not every day that the United Nations comes to Tulsa.
Yet that's what happened when James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples, met with Native American leaders at the TU College of Law -- 3120 E. 4th Pl. -- on May 3. The meeting was part of Anaya's tour of the United States consulting on Indian rights. Anaya spent most of the conference, which lasted some four hours, listening to Indian judges, chiefs, and others as they spoke about issues affecting American Indians. The visit was part of a broader effort to discuss the UN Declaration on the Rights of Indigenous Peoples, which was enacted in 2007.
While enforcement remains voluntary, the Declaration upholds the right of indigenous groups worldwide to self-determination, non-discrimination, as well as cultural, social, and economic development. Anaya heard tribal leaders discuss how much work the U.S. has left to do. Indeed, leaders made numerous claims of human rights abuse.
That may sound like a strong term, yet Charles Tripp -- a Cherokee who is the Chief Justice of the Kaw Nation Supreme Court -- likened relations between the tribes and the state and federal governments to an "abusive relationship." He pointed out that the government requires tribes to compete with each other for limited federal funding. This provides an incentive for Indians to compete against one another while discouraging tribes from standing on their own two feet. "We've been cut off from the outside community, from non-Indians," Tripp said.
Tripp also highlighted prejudice he and other Indian jurists face. He said Indian courts are treated as "rube courts" and are not trusted because non-Native courts don't know what goes on there. He expressed frustration at this situation, saying Indian lawyers have to know more law than non-Indian attorneys. In his own practice, for example, Tripp has to juggle various tribal systems along with general American jurisprudence. "I have to know three different sets of law, aside from state and federal law," he said.
Gregory Bigler -- a district court judge for the Muscogee Creek Nation -- noted that economic development suffers as a result. He said that Indians own virtually no private businesses in Indian Country. Of the 5,000 to 7,000 cases currently open in the Muscogee Creek Nation, there are no private contract disputes or torts. That is, there are so few private Creek businesses that there are no business lawsuits. Bigler said colleagues in other tribes reported similar stories. "Without businesses, there are no sources of revenue for the tribe," he said. For this reason, Native Americans are dependent on the federal government and cannot determine their own destiny.
Muscogee Creek Principal Chief George Tiger said that current law discourages Indians from founding new businesses. For example, an Indian-owned business would have to deal with two sets of law, one covering Indian customers and one covering non-Indians. Non-Native businesses, on the other hand, have no such restriction. "Why should businesses that do business in Indian Country not have to follow our laws?" Tiger said.
Moreover, Tiger told the UN representative that the federal and state governments try to tell the Native governments how to spend their own money, measures he called "economic oppression." He said that lack of support combined with the inability to govern their own land contribute to stagnation. "The federal government says we have no jurisdiction over non-Indians living in our territory, but when we ask for help we are told we are sovereign and to handle it internally," Tiger said.
Tribes also are prevented from taking action in certain child abuse and neglect cases. Suppose a tribal family services agency investigates the alleged abuse of an Indian child. If the agency substantiates the abuse and intervenes to remove the child from the home, it may discover a non-Indian child in the same home suffering the same abuse. While the agency can remove an Indian child from any tribe, under current law it appears to lack the jurisdiction to take any action on a non-Indian child. This applies even if the children are related through a non-Indian parent. "That destroys the integrity of the tribal courts and the family values we try to instill," said Bigler, the Muscogee Creek district judge.
Tribal representatives said that Native Americans are unable to protect themselves from violence. Walter Echo-Hawk -- Chief Justice of the Kickapoo Nation -- noted that Native American courts are required to apply federal law where no tribal law exists. While this is not a problem in theory, "there is a prevalence of injustice in federal Indian law," Echo-Hawk said. He pointed out the inability to prosecute non-Natives who commit crimes against Indians in Indian Country, a situation exacerbated by the fact the Indians are much more likely than the average American to be the victim of violent crime. Noting that the UN Declaration guarantees freedom from violence, Echo-Hawk told Anaya that because of the lack of jurisdiction, Indians lack recourse against violent acts.
Cherrah Ridge -- Second Speaker of the Muscogee Creek National Council -- said tribes may not be able to protect non-Natives on tribal lands either. She pointed out that Oklahoma is known for human trafficking, and a legal gray area may prevent the rescue of victims in Indian casinos or truck stops. "How do we address non-Natives picked up at tribal locations?" she said.
In addition to the obvious frustration at the inability to govern, Sac and Fox Chief George Thurman said tribes are not even consulted in major decisions affecting their land. He said that the Oklahoma branch of the Keystone XL pipeline will be built across Sac and Fox territory, but he has received no notice or consultation. Thurman expressed concern about potential environmental impact, citing a case in the 1990s when oil recovery operations polluted drinking water in Sac and Fox land. "We want assurances that our water will not be harmed again ... and that we will be informed of any mass graves that may be found during construction." he said.
The consultation was long on complaints but short on proposed solutions. While Anaya, the special rapporteur, recently made headlines for suggesting the United States give certain reservations back to the Indians, nothing politically workable came up during the meeting. What was clear, however, is that Indian law is vague at both federal and tribal levels. It was also apparent that the antagonistic relationship -- or at least the distrust -- between the tribes and the government has slowed down the progress that can be made. Tellingly, no member of Congress agreed to meet with Anaya during his tour of the United States. Yet love for their people and pride in their land set the tone for the meeting as tribal representatives faced their communities' serious issues.
URL for this story: http://www.urbantulsa.comhttp://www.urbantulsa.com/gyrobase/Content?oid=oid%3A49248