Pipeline Protest in Full Swing: Standing Strong with Standing Rock

Thousands of people — including members of more than 90 Native American communities — continue to reside at the Camp of the Sacred Stones in North Dakota in protest of the Dakota Access Pipeline (DAPL).

The protest camp was created by the Standing Rock Sioux tribe, whose reservation is a short half-mile from the proposed pipeline. If completed, DAPL threatens Standing Rock’s sacred sites and their main water source, as it would transfer millions of barrels of fracked oil under the Missouri River daily.

Construction on the pipeline, which is currently halted, depends on the results of a federal lawsuit filed by the Standing Rock against the U.S. Army Corps of Engineers for permitting Dakota Access so close to their Treaty lands. During a preliminary injunction hearing on Wednesday, federal Judge James Boasberg stated that he expects to issue a ruling on the matter by Sept. 9.

Ongoing action against the pipeline has, however, garnered significant hostility from various government agencies.

Despite being a predominantly peaceful occupation, 29 people have been placed under arrest in the last two weeks. The FBI has even been called in to investigate a report of a laser allegedly being pointed at an aircraft that was surveying the area.

Amnesty International USA stated in a press release Wednesday that they have sent a delegation of human rights observers to the camp to monitor law enforcement operations. The international NGO has grown concerned over policing efforts at the construction site following the removal of state-owned water tanks that supplied the camp — supposedly due to “public safety concerns”.

This has led to mass donations of water and other supplies, ranging from food to camping gear, to the Sacred Stone camp. These shipments, along with financial contributions, are coming in from tribal organizations, nonprofits, individuals, and —  in one case — a Native American Fraternity, Sigma Nu Alpha Gamma at Oklahoma University.

Along with sending observers to the camp, Amnesty International also sent letters to North Dakota authorities enumerating both constitutional and human rights standards they are obligated to protect while policing the protest.

“Public assemblies should not be considered as the ‘enemy,’” the letter states, “The command hierarchy must convey a clear message to law enforcement officials that their task is to facilitate and not to restrict a peaceful public assembly.“

In recent weeks, there has been a swell in support for the Standing Rock Sioux in their fight against the Bakken pipeline, both at the camp and in the media. Indigenous communities from all over the world have offered statements of solidarity with the Standing Rock via social media outlets. Several high-profile individuals, like actresses Shailene Woodley and Susan Sarandon, protested outside the U.S. District Court for Wednesday’s injunction hearing in Washington D.C.

The Lakota People’s Law Project stands in solidarity with the Standing Rock Sioux, and their allies at Sacred Stone, in their fight to protect sacred water rights. It is imperative that the federal government prioritize people over pipelines, as disregard for the environmental implications of DAPL is disregard for native life and tribal sovereignty.  

Voice your opposition to the DAPL by signing onto these petitions:

Earth Justice: https://secure.earthjustice.org/site/Advocacy?cmd=display&page=UserAction&id=1861&_ga=1.188139371.296617086.1429319754 

Change.org: https://www.change.org/p/jo-ellen-darcy-stop-the-dakota-access-pipeline

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Image source: http://indigenousrising.org/yankton-siouxihanktonwan-to-host-government-to-government-consultation-with-us-army-corps-on-bakken-pipelinedapl/

Navajo Nation Sues EPA for Neglect in Toxic Spill

After waiting a year for compensation, the Navajo Nation sued the EPA last week for the Gold King Mine Spill of August 2015 when three million gallons of toxic waste contaminated the Animas and San Juan Rivers. Contracted workers from the EPA were trying to drain the toxic water from a dam when it ruptured from built up pressure and leaked into the rivers from Colorado to Utah and New Mexico. The chemicals turned the water yellow and made it unsafe for drinking or farming.

“For nearly two days, the USEPA did not call, alert or notify the Nation that this toxic sludge had been released and was headed into their waters and land,” the Navajo Nation said in their 48-page complaint. Even when they were alerted of the spill, they were not told details as to when it would arrive and how long it would last. This was especially concerning to more secluded communities which are farther away from outside resources like Mexican Water, Utah and waited weeks until EPA crews came out to assess damage in the area.

The color faded and the EPA reported the river was restoring itself and  was safe for use two weeks after the spill began. However, Navajo President Russell Begaye warned residents against using the water with concerns of toxins remaining in the sediment until the Nation conducted their own analysis of the river, indicating distrust in the EPA. Tanks of non-potable water were taken to farmers as an alternative to sustain their crops and livestock, yet by then approximately 2,000 Navajo farmers along the river had their crops dry up after they stopped using irrigation pumps.

Two months after the incident, the Department of Interior found in their 132-page report that the spill resulted from improperly rushed and insufficient engineering which didn’t even consider possible consequences if something went wrong. Therefore, the spill could have been prevented in the first place.

Despite the EPA taking full responsibility, there have still been no significant efforts for proper clean-ups, compensation for lost crops or health protection for the Navajo. The Nation still worries about long term health effects, including eating produce or livestock that has come into contact with the contaminated water. The health concerns also prevented farmers from effectively selling their produce, resulting in loss in profits.

The aftermath of the Gold King Mine Spill parallels to concerns of the Dakota Access Pipeline, which faces stalled construction on the Standing Rock Sioux’s land. From the EPA to the Army Corps of Engineers, these organizations show almost no real concern to the potential damage affecting these people and their environment. If construction isn’t stopped now, history will repeat itself as another tribe’s livelihood faces disaster.

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Image source: http://www.mining.com/navajo-sues-epa-over-gold-king-mine-spill/

 

Protesters Sued for Delaying Pipeline Construction

Dakota Access LLC sued Standing Rock Chairman Dave Archambault, who was arrested for trespassing but later released from jail, and other protesters on Monday for stalling construction of the their pipeline and threatening employees and law enforcement. The next day, the Houston-based company was granted a restraining order against the defendants on the grounds that their construction permits were valid.

Dakota Access and its parent company, Energy Transfer, are also going so far as to blatantly lie and try to appear like they are in the right to construct the pipeline. An anonymous Energy Transfer spokesperson said in an interview with Indian Country Today Media Network that “Dakota Access does not cross any reservation land and is compliant with all regulations regarding tribal coordination and cultural resources.”

This absolutely contradicts the fact that maps of the pipeline obviously show it crossing through reservations, including vital water sources on the Missouri River and ancestral burial sites, which construction crews began digging up last week amid protests. The Standing Rock Sioux voiced their concerns for months now and remain ignored.

They are scrambling to justify their actions, but they can’t sweep under the rug the environmental, tribal sovereignty and historical preservation violations they continue to openly commit. There is still a major risk in damaging vital water sources given that pipelines leak thousands of gallons of oil far too often. If any concerns from Standing Rock about the pipeline’s construction were taken seriously, then Dakota Access LLC shouldn’t be at all surprised from the outrage as they dig up sacred burial sites.

Meanwhile, protests show no signs of stopping as Archambault calls for more support nationwide, including for American citizens to contact their senators and representatives, and he even hopes for intervention from President Barack Obama. Other tribes like the Oglala Sioux and Crow Creek Sioux are sending members to the construction site to protest alongside the Standing Rock Sioux. Even celebrities are joining the fight against Dakota Access, like Shailene Woodley and Jason Mamoa.

No matter how much Dakota Access tries to justify their federal violations, their relentless greed and lies will never be overlooked. Protests will not end until Standing Rock takes back their land and Dakota Access is properly held accountable for their deplorable actions.

Support the Standing Rock Sioux by signing petitions in the change.org movement Stop the Dakota Access Pipeline to demand a stop to the piepline’s construction.

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Tribal Leaders Arrested in Pipeline Protest

The Standing Rock Sioux remain unmoved in North Dakota this week as they blocked construction crews attempting to work on the Dakota Access Pipeline, which would transport crude oil across North and South Dakota, Iowa and Illinois. The pipeline poses a threat to the natural environment and native water sources of the local people. More than a dozen protesters were arrested on charges of disorderly conduct and trespassing out of the boundaries set by law enforcement.

Among those arrested include tribal officials like Standing Rock Chairman Dave Archambault, who is a long time fighter for tribal sovereignty. Their arrests came after construction workers dug up human remains on a sacred cultural site, and the leaders crossed the fence in outrage. This sparked more anger among protesters as they blocked the roads and began chants and war cries, which can be viewed here.

“We want to hold them back until we can get to court,” said tribal historian, LaDonna Brave Bull Allard to the Washington Times. The Standing Rock Sioux await trial after suing the Army Corps of Engineers last month for their approval of the pipeline, neglecting the obvious violations of historical preservation, environmental safety and tribal sovereignty.

Meanwhile the pipeline developers, Energy Transfer, persist in their ignorance to continue construction regardless of protest, while insisting that they care for the safety of their employees and those who live in the area.

“To that end, we will press charges against anyone who interferes in the construction of the pipeline. Construction on the Dakota Access Pipeline will continue across all four states along the route,” Energy Transfer said in an emailed statement to the Bismarck Tribune.

If they truly cared about safety, they wouldn’t be building a pipeline which has a high likelihood of leaking and contaminating the environment, especially when it is proposed to be built over the Cannonball and Missouri Rivers, which are vital water sources for the Standing Rock Sioux tribe. North Dakota’s oil industry already has a massive history of leaks and spills with 8,690 reported between 2006 and 2014, including 2,390 that were not contained. With how frequently leaks and spills happen, it does little to convince that Dakota Access will be any different from all the other pipelines, especially with Native American lives at stake if Dakota Access is built.

Energy Transfer has clearly disregarded tribal sovereignty and historical preservation by going around the tribe for the sake of profit. They didn’t even so much as ask anyone at Standing Rock for permission to build the pipeline over their water sources and their sacred land. Their blatant ignorance to the Standing Rock Sioux’s concerns shows how little they really care, and will do anything in their power to continue construction, to the point of desecrating human remains and ancestral burial sites .

The irresponsibility from the Army Corps and Energy Transfer will not be ignored and neither will the justified anger from the Standing Rock Sioux. Until they realize their neglect or the courts rule in favor of the Standing Rock Sioux, the fight will continue until the construction of the Dakota Access Pipeline is halted for good. The Lakota People’s Law Project stands in solidarity with the Standing Rock Sioux Tribe in their fight.

Dakota Access Approved: Resistance Unfolds

With blatant disregard for tribal and environmental health, the U.S. Army Corps of Engineers has approved the majority of permits for the Dakota Access Pipeline — a project that will transport crude oil through several states and over 200 separate water crossings.

The Corps announced approval of nearly all of the project’s necessary permits last week, despite ongoing vocal and legal opposition from landowners, activists, and tribes of the Dakotas. Requests by the Environmental Protection Agency, the U.S. Department of Interior and the Advisory Council on Historic Preservation for a full environmental review prior to the permits’ approval were similarly ignored.

Undeterred by months of collective outrage, construction on the project has already begun. Energy Transfer’s spokesperson stated that their goal is to have the pipeline in operation by the end of this year.

For the Standing Rock Sioux Tribe, the pipeline is more than just another show of federal dismissal to tribal sovereignty, but a looming threat to the community’s water supply and their entire way of life. The disheartening news of approval for Dakota Access, however, has not stalled tribal activism against it.

By carrying crude oil through native territory, under the Missouri River, and across waterways significant to tribal peoples, the Dakota Access Pipeline is a high stakes gamble for the lives the Standing Rock Sioux. The simple fact of the matter is that fracking oil and then transporting massive distances is not safe and it threatens wildlife and human water sources. Between 2006 and 2014, there were 8,690 reported incidents of oil and brine spills in North Dakota’s oil industry; the completion of Dakota Access will surely increase this number to record-high levels.

On Wednesday, the Standing Rock Sioux Tribe filed a lawsuit against the Army Corps through Earthjustice in Washington D.C. The complaint cites a violation of National Historic Preservation Act, as well the Corps’ dismissal of tribal input and culturally significant sites when permitting the project.  

“We have laws that require federal agencies to consider environmental risks and protection of Indian historic and sacred sites,” said Dave Archambault II, chairman of the Standing Rock Sioux Tribe. “But the Army Corps has ignored all those laws and fast-tracked this massive project just to meet the pipeline’s aggressive construction schedule.”

Proposed by the Texas-based company Energy Transfer, Dakota Access is slated to cost 3.4 billion dollars and stretch 1,164 miles across North Dakota, South Dakota, Iowa, and Illinois. Also called the Bakken pipeline, it will carry 450,000 barrels of fracked oil from the Bakken Shale Formation in North Dakota to Illinois, where it will then be transported to Gulf Coast refineries.

Prioritization of Big Oil over Native American lives is troubling, but it’s not new.  “The Corps has a long history of going against the wishes and health of tribal nations” said the Indigenous Environmental Network.

Projected to be built in close proximity to the Standing Rock reservation’s northern border, the pipeline threatens contamination of the Missouri River. Because of this, the tribe launched a campaign called “Rezpect Our Water” several months ago, which has since gained international visibility and celebrity endorsements. The grassroots initiative involved tribal leaders and youth to raise awareness about the potential ramifications of the pipeline.

The ignorance of the Army Corps to the necessary legal and ethical parameters is systemic within federal attitudes toward native lands. It is simply unacceptable that a whole tribe’s way of life be put at risk for the sake of large energy revenues.

What’s worse is that the tax revenues being offered to other counties along the pipeline’s path will not be offered to Sioux County. Meaning, for the Standing Rock Sioux Tribe, their land will be put at risk while they will see no financial benefit from it.

The fight, as activists and indigenous communities have voiced, is far from over: “this decision,” said the Indigenous Environmental Network, “will not deter resistance against the dirty Bakken pipeline”.

Less than a week following the permits’ approval, there are already reports of vigilante resistance. Around 6am yesterday morning, Iowa news outlets began reporting fires on three separate construction sites along the Dakota Access route in the center of the state.

Jasper County Sheriff John Halferty noted that the fires seemed to be intentionally set along the pipeline, targeting the equipment, and caused a million dollars in damage to the machinery. There are no suspects thus far in the ongoing investigation.

This morning, protesters are gathered in Bismarck, North Dakota, on the grounds of Capitol to demand that legislators put a stop to the pipeline’s construction.

The U.S. Army Corps of Engineers refused to acknowledge the push-back of native interest groups, their allies, and environmental agencies when beginning construction; in doing so, they have opened up the door to new and increased forms of counteraction.

When Native Americans are totally discounted from major infrastructure decisions and their safety and ways of life are not prioritized, it shows the unethical framework in which development occurs in this country. Approving the Dakota Access pipeline is a dangerous and irresponsible move on behalf of the U.S. Army Corps. It reflects the devaluation of Native American lives and their ecological sovereignty, something that must perpetually be resisted.

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STOP Act aims to stop export of Native American items

A recent resolution to increase penalties for exporting Native American artifacts has been steadily gaining momentum with bipartisan lawmakers and tribal entities.

The Safeguard Tribal Objects of Patrimony bill — called the STOP Act — was introduced by New Mexico Senator Martin Heinrich (D) earlier this month and hastily gained the support of Jeff Flake (R-Ariz.) and Tom Udall (D-NM).

The legislation was drafted in response to the highly-controversial auction in Paris last May. The event, held at the EVE auction house, had Navajo, Hopi, and Acoma Pueblo artifacts for sale, among others. International outrage over the event spurred an emergency meeting May 30 at the Smithsonian National Museum of the American Indian, between tribal leaders, NGO officials, and governmental representatives.

Along with multiple protests against EVE, the meeting resulted in the removal of the shield from the auction block by June. While artifacts can be auctioned in France if they were obtained legally, the sacred Acoma Pueblo shield was pulled due to claims it was stolen from an Acoma family several decades ago.

However, many other Native American artifacts, endowed with sacred meaning to the communities they belong to, were sold to European attendees and art collectors worldwide. This destructive practice has robbed many native communities in the U.S. of their sacred material culture.

In the last few weeks, other senators from both sides of the aisle have cosponsored the STOP Act, including Jon Tester (D-Mont.), Lisa Murkowski (R-Alaska), and Steve Daines (R-Mont.) and John McCain (R-Ariz.),

McCain’s support is welcomed but surprising, given in 2014 he helped in facilitating the sale of Oak Flats in Arizona, a sacred site to the Apache. 

 

The senator, despite having sold off sacred land to benefit his own political career, has publicly affirmed the need to keep cultural artifacts connected to Native American communities, saying “Congress must impose stiffer penalties to stop these sacred items from being lost forever.”

If passed, the STOP Act would increase the penalty of illegally exporting objects in violation of NAGPRA (the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act, or the Antiquities Act to a maximum of ten years in prison as well as punitive fines. It also includes a clause providing amnesty for anyone who comes forward with objects of Native American patrimony and returns them to the appropriate tribe or family in a two-year period.

Before it enters the Senate floor, it will go before the Committee on Indian Affairs. Passage of the act would create an inter-tribal council, which will be tasked with assisting the federal government in assessing the severity of black market trafficking of sacred objects, as well as finding solutions to halt the widespread issue.

“These culturally significant and historical objects belong with the tribes, not the highest bidder.”, said Senator Flint in a press release.

As of now, there are few legal avenues a nation or tribal community can take to get a sacred item or artifact back to their lands, especially once it has crossed the sea. The STOP Act could create a statute to prosecute the crime of stealing, smuggling, and profiting off of Native American patrimony.

Legally, the framework proposed by the STOP Act gives access to tribal communities to seek federal prosecution for violations of the law, as well as critical protection of significant cultural material and the heritage they represent.

The Navajo Nation passed a resolution in support of the measure, with many tribal governments and organizations formally endorsing the STOP Act in the last several weeks.

Navajo Nation Council Speaker LoRenzo Bates said in a press conference that his community “has consistently sought to repatriate sacred objects, as well as protect our sacred sites, land, culture, language and way of life.”

It is imperative for indigenous rights that the federal government move this bill forward and remain engaged on the issue of trafficked Native American artifacts. For indigenous communities, objects of patrimony are key to connecting the past and present, and preserving cultural wisdom for future generations.

Sacred objects should remain with the communities of their origin, and the importance of their repatriation and protection cannot be understated.

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Court Overturns Pipeline Permit, Victory for First Nations

The First Nations peoples of Canada are rejoicing after a Federal Court of Appeal decision overturned approval for the Northern Gateway project, a controversial tar sands pipeline twelve years in the making. The defeat of this pipeline is a landmark achievement for both indigeneity and climate justice in Canada.

“We’re all celebrating a victory for the oceans and our way of life,” said Peter Lantin, president of the council of the Haida Nation in a statement made following the ruling.

Projected to cost 6.5-7.5 billion dollars (USD), Northern Gateway, a pipeline proposed by Canadian energy giant Enbridge, was greenlighted by the country’s Conservative government in 2014. The pipeline would have stretched 731 miles from Alberta to the northern British Columbia, and would haul 525,000 barrels per day of diluted bitumen tar sands oil through traditional indigenous territories.

Last October, eight First Nations tribes, four environmental groups and a labor union mounted an appeal against the pipeline and argued that the 2014 approval wasn’t constitutional. As environmental justice lawyer Barry Robinson told Canadian Broadcasting Corporation earlier this month, these groups collectively “said no to Enbridge 12 years ago when it first proposed the project.”

Now, it seems likely that Northern Gateway faces too many obstacles to ever see construction. The quashing of the pipeline highlights the significance and success of indigenous activism and its alliance with environmentalist causes.

The 2-to-1 ruling, released on June 30, affirmed that the government and energy firm Enbridge had failed to properly consult the First Nations and Metis communities while planning the construction and route of the project. In a 153-page judgment, the consultation was ruled to be “brief, hurried, and inadequate” and found that entire subjects affecting indigenous people — like well-being and subsistence issues — had been completely dismissed.

“This decision confirms what we have known all along,” says Chief Larry Nooski of Nadleh Whut’en First Nation in a statement through the Yinka Dene Alliance, “the federal government’s consultation on this project fell well short of the mark.”

Canada’s watershed Truth and Reconciliation Commission requires, noted in the nation’s constitution, that there must be “meaningful consultation” with the First Nations before projects like the Enbridge pipeline are greenlighted by federal entities. It’s 94 conditions require that any infrastructure proposed for sovereign territories have free, prior, and informed consent from native communities before moving forward. As the court found, no “reasonable efforts” to do so were made by the National Energy Board of Canada.

If built, Northern Gateway would pose an ecological risk to important bioregional resources for native communities, threatening economic and food sovereignty. The construction would pollute pristine eco-systems and bring oil tankers to native land. Similarly, a spill would reek devastating environmental harm for all of Canada.

However, it is important to note that this ruling may not be the final nail in the coffin for the pipeline or others like it. The President of Enbridge Northern Gateway, John Carruthers, issued an official statement following the ruling project is “critical” for the infrastructure of Canada and that the firm is committed to seeing it completed.

The project will return to Prime Minister Justin Trudeau for “prompt redetermination” and will be reexamined by his Liberal administration. It is hopeful, though, that Trudeau’s well-noted opposition to the pipeline — a platform he campaigned on — will stand firm. On Tuesday, the Prime Minister stated “I’ve said many times, the Great Bear Rainforest is no place for a crude oil pipeline.”

For the native communities of Canada, this decision is the result of a decade-long fight to protect their land and waters. It is the hope of the involved communities that the Trudeau government will not re-approve the project and following administrations will continue to prioritize environmental and native protections over nonrenewable energy profits.

Some First Nation communities, like the Gitga’at, are careful to heed that the struggle for indigenous territory is not over. It is commonly realized that where Northern Gateway failed, another will surely take its place. This necessitates that, in order to preserve resources for future generations, governments and indigenous communities must work together and maintain mutual respect.

The majority ruling further stands as a testament to the importance of Truth and Reconciliation Commissions and the juxtaposition between native interests and environmental sustainability.

Supreme Court Deadlock Affirms Tribal Sovereignty

The United States Supreme Court reached a 4-4 deadlock last Thursday in the case Dollar General v. Mississippi Band of Choctaw Indians, heralding a victory for tribal sovereignty in the criminal justice system.

Because of the tie, the Fifth Circuit Court of Appeals ruling on the case affirms the right of the Choctaw to try their case against the retailer Dollar General in their own tribal court.

The deadlock did not create a national precedent, but the Fifth Circuit’s ruling remains a triumph for the country’s 567 federally-recognized tribes as it respects their right to hear suits against non-tribal entities. For the Choctaw Tribal Band, the announcement ensures that the plaintiffs will finally—and rightfully—see their day in court.

The case unfortunately began over alleged sexual violence that occurred on the Choctaw Reservation in 2003. Dave Townsend, a store manager at a Dollar General located on native land, was accused of sexually assaulting a 13-year-old Choctaw boy on multiple occasions. Despite the fact that the state of Mississippi has the right to try crimes committed on Native American reservations, the Attorney General declined to press any charges against Townsend or the company.

This led to the parents of the boy filing for a suit in the local Choctaw court, whose legal codes are nearly identical to that of the state. When the boy’s family moved to sue Townsend and Dollar General in 2005, injunctions were immediately filed  to dismiss the case, claiming that the tribe had no legal authority in the matter.

Dollar General’s representatives argued that the Choctaw courts’ sovereignty did not supersede constitutional authority and there was little basis for the suit to move forward under Choctaw law. However, the Fifth Circuit court disagreed with Dollar General’s argument and instead asserted that the boy’s case should be held within the Choctaw’s sovereign justice system.

There is precedent for the circuit court’s ruling. In Montana v. United States (1981), the Supreme Court recognized that consensual agreements between non-tribal members and tribes — as well as matters relating to the welfare of the tribe — may be tried under tribal jurisdiction.

While the Mississippi Choctaw Supreme Court, the District Court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals all ruled that Townsend himself cannot be tried as a non-member, it places vicarious liability on Dollar General for the alleged sexual violence and exploitation that occurred on tribal grounds. The retail-giant knowingly bound itself to tribal jurisdiction when it signed a contract in 2000, and because of that, it must answer to the accusations placed on their employee in a Choctaw court.

Even though Townsend is not the defendant, the announcement of the Supreme Court ruling brokers in a welcomed precedent regarding inherent sovereignty and tribal right to self-determination, especially in regard to incidents of this caliber.

In a country where sexual violence against Native Americans is far too rampant, the ruling sends a clear message that exploitation of tribes at the hands of commerce is unacceptable. It invites other tribes to act on the sovereignty of the their own self-governing entities to address injustices and criminal behavior on behalf of non-native, corporate interests.

The Court’s deadlock on the matter is not ideal, but the referral back to the Fifth Circuit opinion is nonetheless a watershed moment in the battle for tribal authority in matters pertaining to their land and their members.

“Even though the Court was unable to reach a majority decision in our favor, I am grateful the result of the case nevertheless affirms the sovereign right of Indian tribes to assert civil jurisdiction against a non-Indian entity in certain circumstances,” said Mississippi Choctaw Tribal Chief Phyliss J. Anderson. “This is a positive outcome, not only for our tribe, but for all of Indian country.”

Sovereignty of tribal lands and their framework of justice predate the United States, the Constitution, and the Supreme Court. It is a natural right of tribal communities that they may seek justice following grievances committed on their land. Moving forward, tribal sovereignty must be prioritized and courts should uphold the right for Native American communities to legally protect themselves from non-members’ criminal impunity.

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Tribal Court Convictions Upheld by Supreme Court

Two months ago, the case of United States v. Bryant went to the Supreme Court to challenge if tribal court convictions could be used in federal court for habitual offenders. To some, this case posed a potential threat in protecting Natives from repeat domestic abusers. Now, the Ninth Circuit Court’s ruling of tribal courts being “unconstitutional” has been overturned as the Supreme Court unanimously upheld the legitimacy tribal court convictions.

Michael Bryant Jr, an enrolled member of the Northern Cheyenne, appealed his convictions of domestic violence to the Ninth Circuit Court in 2014. He argued that using his previous uncounseled misdemeanor convictions to prove habitual offender status under the Violence Against Women Act (VAWA) violated his Fifth and Sixth Amendment rights, despite pleading guilty to five different cases of domestic abuse. The Ninth Circuit Court agreed with Bryant, reversed his indictment and 46-month prison sentence, and took the case to the Supreme Court for its 2016 session.

However, the Supreme Court ruled earlier this week that the Bill of Rights do not govern over tribal courts because they pre-date the Constitution. Instead, the Indian Civil Rights Act (ICRA) provides defendants in tribal courts similar legal protections and rights to those of the Bill of Rights and the Fourteenth Amendment. According to ICRA, tribal courts only have to provide a lawyer when the defendant faces a prison sentence of more than a year. Because Bryant’s previous sentences were less than that and he was still ensured due process of law, his Fifth and Sixth Amendment rights were not violated.

The ruling on June 13th is a major victory for tribal sovereignty and the legitimacy of their courts to protect Native women and children from habitual offenders of domestic violence. Domestic violence in Native communities was addressed by Ginsburg as she noted that Native women face the highest rates of domestic violence in the United States, where they constitute 46 percent of cases according to the Centers for Disease Control and Prevention.

“Domestic abusers exhibit high rates of recidivism, and their violence often escalates in severity over time,” said Ginsburg in the ruling, presenting a real fear in Native communities if offenders like Bryant did not have proper justice delivered. If the Ninth Circuit Court ruling was upheld instead, then tribal courts would be delegitimized, especially for VAWA, and Bryant would likely go back to abusing more women with little to no consequences.

VAWA is a very crucial law in the fight against Native American domestic violence since it was amended in 2013 to allow tribal convictions to count towards habitual offender status as well as prosecute non-Natives, who make up 86 percent of reported abusers against Native women. Nullifying these aspects of the law would make tribal courts useless to defend Native women and to keep repeat offenders out of their communities. With Native women facing twice the rates of violence compared to women of any other race, these problems cannot be allowed to persist and tribal courts need the proper power to implement justice.

This ruling is a milestone for the tribes being properly seen as sovereign entities and their courts legitimate by the Supreme Court. It shows that the Supreme Court is able to take the problems in Native American communities into consideration, and make the proper decisions to ensure that they receive the protection they deserve.

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BIA Clarifies Role of State Judges in ICWA Cases

A new ruling by the Bureau of Indian Affairs (BIA) seeks to ensure that children won’t be taken from their families in violation of the Indian Child Welfare Act.

The clarifications issued by the BIA on June 10th finally grant legally-enforceable legitimacy to traditional Indian child-rearing practices, like leaving children in the care of extended-family members. Previously, this could be a reason for a child to be taken from their family.

This newly issued rule clarifies many complicated aspects of ICWA, most importantly that there is no such thing as the “existing Indian family doctrine.” This idea has been utilized by a small number of state courts to ignore placements with available family members based solely on the rationale that the Indian child in question has not grown up or lived with, or is not intimately familiar with that part of their family. The BIA emphasized that if any family is available for placement, then ICWA requires states to prefer that placement before and above all others once a child welfare proceeding commences.

The rule also clarifies that there must be an initial inquiry into the status of a child entering a child welfare proceeding, since that is the moment when states of ICWA are enforceable. Many comments on the federal website made by a range of organizations highlighted the importance of ICWA adherence early in child welfare proceedings.

Despite good intentions for Indian child welfare, too many unfair custody hearings resulted in massive harm to Indian families and tribes as their children were forcibly taken away. This has also dramatically spiked the rates of Indian children being placed in foster care where they make up two percent of foster care children despite only making up one percent of the entire American child population. However, this trend of unfairly separating Indian families will hopefully reverse with a new ruling set by the BIA.

Since its inception in 1978 to limit when Indian children should be placed into foster care, states have disagreed over the rigidity of requirements imposed by ICWA, and have sporadically and unfairly enforced its key provisions. Due to the myriad approaches taken to enforce ICWA, the BIA assumed its responsibility to increase accountability and uniform enforcement of this federal law.

Yet somehow that degree of articulation has been lost in the language of state court proceedings during many Indian child-custody cases, where we have seen multiple instances of state court judges who believe that they understand Indian children’s best interests better than the parents of those kids, and have gone out of their way to marginalize parental involvement in Indian child custody proceedings.

A small number of states have consistently exercised jurisdiction over Indian child-custody proceedings, but have failed to recognize some of the essential tribal relations of Indian people and Indian culture when determining whether or not a child was in a safe situation—they ‘found’ a child to be neglected or abandoned, when that could not have been further from the fact.

This new rule change, while long overdue, is commendable and expected to reduce the high number of ICWA violations.

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Link to new rules: http://www.bia.gov/cs/groups/xraca/documents/text/idc1-034234.pdf

Link to image: http://nativenewsonline.net/wp-content/uploads/2014/01/bia.gif

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