We'll be posting updates as the briefs are filed on the Indian Child Welfare Case pending before the US Supreme Court involving the Cherokee Nation. Here are the resources about the case on the National Indian Child Welfare Association's website, but stay tuned . . . .
On Jan 28, 2013, a group of Cherokee citizen scholars and educators issued this formal statement of support and solidarity with the Idle No More Movement:
In Solidarity with the Idle No More Movement
We are writing as educators and Cherokee citizens from the Cherokee Nation, Eastern Band of Cherokees and United Keetoowah Band. Digadatsele’i (“We all belong to each other”), which was formed in 2009, supports the ongoing, grassroots struggles of our Indigenous brothers and sisters across the medicine line as treaty-based, sovereign Nations. The Idle No More movement is more than a reaction to the harmful legislation passed or proposed by Canada’s Harper government – it is about standing up to new threats to First Nations’ treaties, self-determining authority, inherent rights, and responsibilities to our waters, homelands, communities, and cultures. Whether north or south of the medicine line, our struggles are shared. As treaty-based peoples, we recognize and reaffirm that:
Idle No More originated and is sustained through the leadership of Indigenous women. Women are the strength of our communities and the colonial legacies of missing and murdered Indigenous women on Turtle Island must be confronted and addressed. The recent refusal to reauthorize the Violence Against Women Act in the US further demonstrates a systematic failure to address ongoing violence against Indigenous women;
All of our futures depend on upholding our ongoing relationships to our homelands and waters. This is also about respecting Indigenous forms of traditional governance and relationships grounded in gadugi and the seven clans that have sustained our communities for thousands of years;
Indigenous treaties with governments such as Canada and the U.S. are not the only ones being challenged – our sacred covenants with other Native Nations and with the land, water, plants, animals, and all forms of life on our territories are at stake. The treaties must be upheld if our current and future generations are to thrive;
Educational self-determination is vital to the health and well-being of Indigenous Nations. Teaching our languages, stories, and living histories to our current and future generations is critical to our survival;
Several Indigenous Nations are split by the US/Canadian border, which crosses over their traditional territories. This transnational movement understands that borders cannot impede Indigenous liberation and unity. We also exhort Canada to recognize and practice its obligations to the provisions of the Jay Treaty (1794), Treaty of Ghent (1814), and other appropriate statutes when it comes to Indigenous peoples traveling across the medicine line.
We stand in solidarity with the Indigenous peoples across Turtle Island fighting for the future of Indigenous Nationhood – we will rise together to meet these new challenges as persistent and enduring Indigenous Nations. Digadatsele’i.
The Cherokee Nation has an automatic 240 day citizenship that attaches to any newborn who is a descendant of the Dawes Rolls. This was enacted to ensure that newborns are Cherokee citizens subject to the Indian Child Welfare Act's protections and presumes that the parents will make a decision whether the enroll the child as a Cherokee citizen during their infancy. I would like to see our Nation go one step further and simply have natural born citizenship laws like other sovereigns throughout the globe, but that's an aside. The decision from the the Tenth Circuit is here. The federal court does not like the idea of this "temporary citizenship" for inclusion in protections of a federal statute. My question for tribal legal reform: why have people "enroll" a child as a citizen in the first place? Why not have Cherokee Nation laws that automatically extend citizenship to children who are eligible for citizenship and if someone chooses to disavow their citizenship, go thru the administrative process to renounce citizenship? When tribes requires someone to "enroll" as members/citizens of the Nation, it contributes to the idea the tribal citizenship is inferior to other citizenship. I envision this sequence: Citizenship by birth, followed by a Cherokee Nation Birth Certificate and/Cherokee Nation ID card for documentation purposes, followed by a Cherokee Nation driver's license to operate a vehicle.
Ryan Mackey's new blog on Cherokee-related and other things has been on-line for a few months and I'd like to call attention to it. To check out the blog, click here. Below you'll find an early excerpt from the blog to give you a flavor of his introspection: I used to be a sovereignty sort of fellow, I even wanted to be a tribal attorney and "fight" as a modern ᏗᏟᎯ. That was until I spent some time in our communities as an adult. I still think that we need those sort of legal warriors, I have since realized that’s not my path. I know our ᎠᏂᎦᏚᏩᎩ people have always been an ᎠᏰᎵ, a Nation, but not by ᎠᏂᎦᎵᏏ definitions. Those ᏲᏁᎦ people had to remake us in their own image. I know how they used colonialism and hegemony to oppress our ancestors but now they don’t even need too. We can do that ourselves - that’s self determination for you.... I had better explain myself, I am not anti-Indian or completely self loathing or even unstable - not really. I am just afraid that we are focused on the wrong things. It maybe that we are on the right path, but it is likely that if we take the time to re-evaluate our system we will find that we are beyond our scope and out of step with our needs and priorities. I am only suggesting that we re-evaluate our foundation while we still have the means.
Not exactly Cherokee-centric news, but Rob Porter has been elected Seneca President. For the news article click here. Rob is a law professor and his ties to Cherokee Nation (beyond our cultural ties to our brothers and sisters in the northeast) go back to Cherokee Nation Constitutional Convention in 1999 - he was one of the first day speakers on tribal sovereignty. Cheers.
The DNC is running a the new political ad against the RNC. It appears to be titled “Stop Stealing Our Democracy.” Here is a link: http://www.thepoliticalcarnival.net/2010/10/video-new-dnc-ad-stop-stealing-our-democracy/ RNC is upset about it, particularly Rove, who made a response on Fox News. Here is a link to his response on FoxNews: http://www.foxnews.com/on-air/hannity/transcript/rove-responds-dnc039s-039stupid039-foreign-funding-allegations?page=1
Without getting into the accuracy of the allegations in of the ad, the ad makes two points. First, the RNC has accepted secret donations. Second, some of these secret donations have been foreign money. One is bad; together they are worse. Consequently, foreign money has its own independent negative consequences to “our democracy.”
Both democrats and republicans think this kind of behavior, if true, is bad. That's why the DNC made the accusation and that's why the RNC and Rove are so upset. Query: Why don’t we want foreign money influencing our elections? Answer: Non-resident, non-citizens who make donations are not part of our body politic and therefore should not have a say, i.e. they should not be able to govern us without being governed with us. This was one of the basic complaints of the American colonists leading to the American Revolution.
Problem: Given how much money tribes and individual Indians have donated to mostly Democratic candidates at both the state and federal level, a similar accusation could be made against the DNC. After all, tribes consistently oppose the application of state laws to tribal lands, and federal law has generally upheld the exclusion of state law from tribal lands. This means reservation citizens (tribal "members" that live on the reservation of the tribe of which they are a "member") can help make laws that do not apply to them similar to how foreign money can influence elections in governments to which the foreign donors are not subject. The tribes and the foreign donors bear some analogy to British Parliament of the 1760s and 1770s vis a vis American colonists.
This criticism has more traction at the state level because federal laws more often apply to tribal lands (making participation more appropriate). Nonetheless, where reservation citizens participate in making federal law that does not apply to tribal lands, the criticism would hold.
The big picture problem for tribes is that the law has been reconciling, and will continue to reconcile, this tension over time to the detriment of tribes if tribes continue to push for increased participation by reservation constituencies in the absence of anything resembling the 10th Amendment or respected sovereign borders. Put more simply, if tribes and reservation citizens keep acting like they are part of the state (up to and including the establishment of state legislative districts within the reservation), the law likely will treat them as such more and more.
Unfortunately, the problem puts tribes in a difficult position. Focusing on the state level for a moment, participating in, and encouraging reservation citizens to participate in, state elections has proven extremely effective in protecting tribal interests at the state level in the near term. However, the long term outlook is more questionable. Over time, tribes have lost pieces of sovereignty, case by case. A number of Indian law cases, either implicitly or explicitly, prohibit the application of tribal law to non-Indians inside the reservation, or uphold the application of state law inside the reservation, based in part on who can and can't participate in making the law in question--a participation analysis.
This is not to say that tribes should halt all participation, only that such participation should be done consciously in light of all the consequences such participation can have. The negative long-term implications need to be part of that analysis along side the positive short-term implications. The only entity qualified to do that cost benefit analysis is the tribe itself in light of all the circumstances of its relationship with the surrounding state. It will be interesting to see if the increasing level of tribal participation in non-tribal elections increases the role of participation analysis in Federal Law.
Congress finally passed the Tribal Law and Order Act and it awaits Obama's signature. The full text to the Act is here. The big news is that tribal court sentencing powers are increased to three years and/or $15,000 in some instances and that there are new provisions for accountability when a US attorney declines to prosecute an Indian Country criminal matter.
Judge J. Matthew Martin (Associate Judge at EBCI) has a new law review article out The Nature and Extent of the Exercise of Criminal Jurisdiction by the Cherokee Supreme Court: 1823-1835 at 32 North Carolina Central Law Rev. 27 (2009). The most interesting part of the article is the evidence that the Cherokee Nation did exercise criminal jurisdiction over non-Indians (albiet over the non-Indians' objection). It's on westlaw and an earlier version of the final piece is here.