Three Affiliated Tribes review new constitution

The Three Affiliated Tribes is considering a new constitution to replace one written by the federal government 70 years ago. A tribal committee has been working for more than two years to write a new constitution. It was presented to the tribal council Wednesday. But the council decided to hold more public hearings before taking any action.

Some 25 meetings have already been held.

The new constitution would replace a constitution written by the Department of the Interior in 1936.

The new document includes a tribal bill of rights.It creates a legislature instead of a council and gives members the right to recall and impeach tribal officials.

The new constitution also would allow tribal members to elect their own judges. It also would change name of the tribe to the Mandan, Hidatsa and Arikara Nation.

Tribal spokeswoman Glenda Embry said there were calls for more public meetings first to make sure tribal members understand the new constitution. Embry said it’s possible another round of public meetings could be held in May.

It would take a vote by five tribal councilmen to get it to a ballot. If the tribal council doesn’t call for a constitutional election, it could be referred for a secretarial election by petition of 10 percent of eligible voters.

Head of Indian trust lawsuit urges tenacity

AUTHOR: Michael Moore, Missoulian

MISSOULA — When Elouise Cobell finally decided to sue the U.S. government for mishandling a century’s worth of trust income it held for Indians, she thought the lawsuit might last three years. In two months, the case that bears her name will have been in the court system for 10 years.

Although some of the issues have been resolved, the case is nowhere near resolution, Cobell said Friday during an appearance in Missoula.

“There have been 17 decisions in this case, and we’ve won every one of them,” Cobell said. “But the government still delays this case at every chance. … They will try every trick that you can believe.”

The most recent delay involves an effort by the government’s attorneys to remove U.S. District Judge Royce Lamberth from the case. The judge has offered up some harshly worded rulings against the government, but Cobell said the judge’s rulings have simply reflected the government’s overwhelming malfeasance in handling the Indian trust accounts.

“If this had happened in the private sector, there would be people in jail,” Cobell said on the final day of a Blackfeet-sponsored conference focused on racism in towns bordering Indian reservations. “If other people’s money was handled this way, people would be in jail. … They would be closed down in a New York second.”

Estimates have placed the actual loss of money owed to Indians through their trust lands at about $13 billion, but with interest the bill is closer to $175 billion to $200 billion. Cobell said it’s unlikely the case could be settled for anywhere near that amount, but she has proposed a figure of $27.5 billion as part of an effort by Sen. John McCain, R-Ariz., to legislate a settlement in the case.

The suit was filed on behalf of about 500,000 Indians who were entitled to trust payments from natural resource-related royalties accruing from use of their land. The U.S. Department of Interior was supposed to keep track of the money and make payments, but it failed to do so. Cobell agitated for years about the failed trust and finally turned to the legal system after a meeting with officials from the U.S. attorney general’s office made it clear that the government had no interest in setting things right.

Cobell, who is now executive director of the Native American Community Development Corp., said filing the case filled her with dread.

“I said, ‘This is the U.S. government that you’re suing,’ ” she recalled. “I called a friend and told her I just didn’t think I could do it. And she said, ‘If you don’t do it, who will?’ “

And that was the message Cobell sent on Friday. She urged conference attendees to write their congressional representatives and urge a resolution to the lawsuit.

“The only way to get this done is if we stay right there in their faces,” she said.

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This article first appeared in the Billings Gazette


Congratulations to the Mashpee Wampanoag

Heartfelt congratulations to the Mashpee Wampanoag Tribe of Cape Cod, Mass. We’ve known all along that they belong to one of the most historic Indian nations on the continent, the first to welcome the English Pilgrims and the first to lead a large-scale pan-tribal resistance against their encroachments. Now the federal government is preparing to acknowledge their existence.

After 10 tries, Washington’s current Indian agents finally got it right. Of course, the Mashpee Wampanoag Tribe of Cape Cod had such a strong case it would have been a major scandal if their petition for recognition did not succeed, but that thought hasn’t stopped the Interior Department in recent years. No tribe is immune to the bureaucratic trick of setting impossible standards of evidence.

Prior petitioners, notably the Nipmuc Nation, the Schaghticoke Tribal Nation and the Eastern Pequots, have fallen prey to bad-faith demands for year-to-year and practically day-by-day proof of their ”continuous existence.” Even the Mashpee
Wampanoag lost a celebrated federal trial back in 1976 when a high-powered corporate
law firm managed to convince a non-Indian jury to throw out a land claim
affecting their own property on the grounds that the tribe could not demonstrate its
existence on certain set dates.

As Assistant Interior Secretary of Indian Affairs in the Clinton administration, Kevin Gover was prepared to accept some common-sense evidence for continuous existence, in spite of gaps in the documents. Say, for instance, the tribe was continuously recognized by the state government and, before that, the colonial government.

Or, say that its members continuously occupied a state reservation. These factors helped win positive findings for the Nipmucs, Schaghticokes and Eastern Pequots until fierce opposition from local politicians and well-connected law firms intimidated Interior officials into reversing themselves.

The balance might have tipped for the Mashpee Wampanoag because of a historic oddity. In addition to their tribal organization, they also until recently had political control of the state-incorporated town of Mashpee. The settlement originated in 1665 as a Massachusetts ”praying town.”

It grouped together several villages of the Cape Cod Indians who had greeted Pilgrims from the Mayflower. A minister stayed with them to supervise their conversion. After King Philip’s War in 1676, which passed by the settlement, scattered remnants from other bands came to join them. Native inhabitants managed to control the town council and other municipal institutions right up to 1970.

It was the influx of non-Native residents, maybe spurred by the publicity given the Kennedy compound up the road at Hyannisport, that prompted the Mashpee Wampanoag to start petitioning for federal acknowledgement. They began the process, in fact, even before there was a process. Their petition, No. 15, began with a letter to the Interior Department in 1975; the current acknowledgment regulations were first drafted in 1978.

In 1976 the tribe tried, but failed, to get the federal government to support a land-claim suit designed to stop
encroachment by real estate developers. Tribal members also fought hard to
preserve their shell-fishing rights along the coast. The arrest of Tribal Chairman Glenn Marshall in his fishing boat produced an important court ruling supporting tribal sovereignty. Like so many other tribal petitions, these efforts began long before anyone even dreamed of tribal casinos.

Things being what they are, however, even with this background, the first thought that recognition brings to the mainstream press is gaming. The Wampanoag had to seek a financial supporter for the cost of the recognition process, so eventually a casino is bound to be an issue. (The process still has to run through a year of comment and counter-comment before Interior issues a final determination.) There are no tribal casinos at present in Massachusetts to compete with the lure of Foxwoods and Mohegan Sun to the south.

The state’s only federally recognized tribe, the Aquinnah Wampanoag, don’t want gaming on their island homeland and have been waiting to see how state policy develops to seek a casino on the mainland. Just days after the Mashpee decision, the state
Legislature, still quaintly called the Great and General Court, proceeded to make a
mess of the state’s non-Indian gambling industry.

In the middle of a debate over adding slot machines at the state’s four racetracks, legislative leaders neglected to extend their simulcasting authorization. Since April 1, the tracks have ”gone dark,” losing the off-track betting that is their financial mainstay, throwing hundreds out of work and threatening the existence of thoroughbred racing in the state.

We don’t know if it’s a case of intense back-room maneuvering or simple legislative incompetence, but it indicates that the tribes will have a very tricky path ahead to secure their own gaming development.

But these are worries for the years to come. For the moment the Mashpee Wampanoag have won a great victory, both in their three-decade legal campaign and their four-century struggle for survival. We join their celebration.

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This article first appeared as an editorial at Indian Country Today