And now:[EMAIL PROTECTED] writes: Sent by Pat Morris via FN list..thanks! Published Wednesday November 17, 1999 Legal Fight Tests Reservation's Borders BY DAVID HENDEE WORLD-HERALD STAFF WRITER http://www.omaha.com/Omaha/OWH/StoryViewer/1%2C3153%2C252168%2C00.html Rushville, Neb. - Nine American Indians who say a long line of historic federal actions blurred the borders of the Pine Ridge Reservation a century ago are in an uphill - but not impossible - fight, according to legal scholars and historians. Maintaining or regaining sovereignty over historic tribal land is expected to continue to be one of the biggest legal challenges facing Indians in the next century. The next skirmish is pending here in Sheridan County Court. Eight Oglala Sioux from the South Dakota reservation, including noted activist Russell Means, and one Winnebago from Nebraska are challenging the State of Nebraska's jurisdiction in their misdemeanor criminal cases. Arrested during a July confrontation with Nebraska State Patrol troopers at nearby Whiteclay, the nine Indians claim that the tiny village and dozens of square miles of land around it are legally part of the reservation and thus fall under only tribal and federal authority. The key question is how President Theodore Roosevelt's decision in 1904 to slice off a piece of the reservation in Nebraska that served as a buffer between Indians and white settlers squares with the fact that treaties are pacts between sovereign nations, said Rolland Dewing, a history professor at Chadron (Neb.) State College. U.S. Supreme Court decisions during the past decade give a clear view of how courts are interpreting Indian law, especially jurisdiction issues, said Rob Williams, a professor of law and American Indian studies at the University of Arizona. Robert Clinton, a law professor at the University of Iowa and an associate justice of the Cheyenne River Sioux Tribal Appellate Court in South Dakota, said both sides can point to numerous cases favoring their points of view. Williams said, however, that the nation's highest court seems to look closely only at two things: Congress' intent at the time the land jurisdiction decisions were made and present-day demographics. "The ultimate test is congressional intent, but you can basically call the outcome of a case by looking at the demographics," Williams said. "If it's heavily non-Indian, the Indians lose. If it's heavily Indian, then Indians win." Although the adjacent Pine Ridge Reservation is the nation's second-largest and home to about 23,000 Oglalas, the 6,700 people in Sheridan County - which includes the unincorporated village of Whiteclay and its 22 people - are overwhelmingly non-Indian. Roughly 93 percent of the county's people are white, and 7 percent are Indian. But there's a wrinkle in this case. It's President Chester Arthur's 1882 order establishing a 50-square-mile buffer zone south of the Pine Ridge to discourage white merchants from selling alcohol to reservation Indians. "They may have a hook on that one," Williams said. The buffer was retained in 1889 as a part of the reservation when Congress carved six Sioux reserves out of what remained of the land set aside for them in the Fort Laramie Treaty of 1868. Courts would look at that act to determine the intent of Congress in maintaining the buffer, Williams said. "Was Congress' intent to create an area of tribal control or an area of federal control to keep out liquor?" he said. "Federal control of liquor is pervasive. To me, the 50-square-mile buffer reads like Congress' intent was to maintain federal control for liquor purposes." Tom Poor Bear, an Oglala who is one of the defendants, said the issue is simple. "It takes an act of Congress to remove it (the buffer zone) from the Pine Ridge, and Congress has never acted on it," he said. "So it's still part of the Pine Ridge. It's the law." A Supreme Court case earlier this year involving the Mille Lacs band of Chippewa in Minnesota and Wisconsin and a 19th-century presidential order could be used by the Whiteclay defendants, although its relevancy is uncertain. In a 5-4 decision, the court upheld the rights of eight Chippewa bands to fish and hunt free from state regulation on public land in east-central Minnesota. The court held that the president of the United States doesn't have the power to unilaterally extinguish Indian rights in violation of prior treaties and statutes. The State of Minnesota argued that hunting and fishing rights granted in an 1837 treaty were revoked by an 1850 executive order by President Zachary Taylor. The court majority decided that the treaty's guarantee withstood the president's order to revoke. To carry out the president's order, the United States would have had to remove all American Indians from 13 million acres in Minnesota. Congress, however, never approved a removal order and the executive order could not stand on its own. Williams said the court has held that the president has the authority to carry out congressional intent but not to undo something Congress created. The case also reaffirmed legal rules that say ambiguities are interpreted in favor of tribes and that treaties are interpreted as tribes understood them, Williams said. Reading too much into the court's decision, however, is dangerous, he said, because the case is unique and deals with specific documents. Determining where reservation boundary lines are drawn and who owns what land are never-ending questions, said Dewing, the Chadron State historian. The Black Hills issue is an example. The 1868 treaty gave the Black Hills to the Sioux, but Congress later confiscated the region. In 1980, the Supreme Court agreed that the region was unconstitutionally taken from the Indians and awarded the Sioux $102 million. The tribe has not accepted the money. It wants the land. Dewing said chances are slim that the courts will agree that Whiteclay legally is part of the reservation. "It has been surveyed, and the boundary lines are set," he said. Means, Poor Bear and the other defendants were arrested July 3 during a march to Whiteclay from the nearby village of Pine Ridge, S.D. They led about 650 others protesting the unsolved slayings of two Oglala men and the sale of beer in Whiteclay to reservation Indians. The protest came a week after some Indian marchers looted and burned a Whiteclay grocery store, and this time the marchers were met by troopers in riot gear. The nine were arrested and ticketed for obstruction of a police officer and failure to comply with a lawful order. The charge of obstructing an officer is punishable by up to a year in prison and a $1,000 fine. The other charge is punishable by up to three months in jail and a $500 fine. A court hearing scheduled for today on the jurisdiction issue was canceled Tuesday. Instead of calling in expert witnesses, Jerry Matthews of Hay Springs, Neb., the defendants' attorney, and John Freidenburg, the deputy county attorney prosecuting the case, will now make their cases in legal briefs to Judge Charles Plantz during the next 60 days. Williams, the Arizona law professor, is a member of North Carolina's Lumbee Indian Tribe. Although sympathetic to the defendants' claim, he is pessimistic about their chances. Indian law, however, thrives on jurisdictional confusion. That reality gives the Whiteclay defendants an opening, Williams said. "It sounds like there is enough ambiguity there to make it worth the defendants' while to raise the challenge and the issue," he said. But it's a long shot against the backdrop of Supreme Court decisions in which tribal jurisdiction has never been granted in areas with a majority non-Indian population. "The policy of the United States in the late 1800s was to abolish Indian reservations," Williams said, "and the court knows that." Their last court appearance was in September. Reprinted under the Fair Use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. <><<<<<>>>>><><<<<> Tsonkwadiyonrat (We are ONE Spirit) http://www.tdi.net/ishgooda/ <><<<<<>>>>><><<<<>
