Proper Economic Resource management NEWSLETTER
Vol. 2, No. 4 NOV/DEC 07
á Red Lake tribal fishing goes commercial
á Is John CollierÕs Dream Alive and Well?
á From the ChairmanÕs deer stand ...
á Indian Claims Commission Act
á Federal land ever more vulnerable to tribalism
á Federal, state leaders ignore property rights loss in Ôfee to trustÕ transfers
á WhatÕs wrong with this picture?
á Clean Water Restoration Act: Trojan Horse in the land of 10,000 lakes
á PERM part of a growing coalition
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Red Lake tribal fishing goes commercial
Commercial trap or gill netting to ÔsupplementÕ hook and line if needed
The Red Lake tribe has announced a return to commercial fishing starting September 12 of this year. The promising rebound of Red Lake walleye now faces a new challenge to long-term viability.
The Shakopee Mdwankanton Sioux provided a start-up grant for the fishery. The grant was due to the Òexcellence of the fishery plan for the industry and resource.Ó
Emphasis will be on the commercial harvest of walleye. The fishery will not accept Northern Pike, Sheepshead, Black Crappie, or Whitefish initially.
Angler fishing will be distinguished from commercial harvest by catch limits. Limits for commercial fishers are 50 walleyes per day. Non-commercial (subsistence) angling is 10 walleye per angler per day. Walleye must be from 13 to 18 inches. There is no limit on the number of lines being used by an individual.
Commercial fishing will also be distinguished from angling by the use of numbered coolers. This involves registering as a commercial fisher and checking out a cooler, which must be returned at the end of the day. No charge for the cooler was mentioned.
If the fishery does not take in enough fish by hook and line, crews will be hired to ÒsupplementÓ the hook and line harvest. Supplementation involves the use of trap nets and gillnetting. No information was available on what level of profitability was needed to meet the definition of Òenough.Ó
The 13 to 18 inch slot was chosen because there are currently few walleyes over 18 inches, when walleye begin to spawn naturally. Taxpayer-funded walleye restocking efforts and a recent abundant hatch could help reach fishery profitability or Òenough.Ó It remains to be seen whether the pressure of the Red Lake tribeÕs commercial harvesting will allow the ranks of 18+ walleye to swell.
A truck route around the lake will be created to help speed up the collection and processing of freshly caught walleye.
The Red Lake Fisheries will be run as an independent company under Red Lake Nation Foods. The fishery will allow Red Lake Nation Foods to make walleye commercially available as part of its current line of specialty foods.
FDA requirements will still hold sway in regulating the fisheryÕs operations. Inspection by the FDA will also allow international market access and transportation of processed walleye. Plans for international access reflect a similar venture by a tribe in Canada. There, the tribe is looking to process fish considered ÒroughÓ locally, but desirable to markets in China and other countries having different tastes for fish.
Is John CollierÕs Dream Alive and Well?
By Clare Fitz
Chairman
Mille Lacs Equal Rights Foundation
John CollierÕs 1933 swearing-in as Indian Commissioner under FDR was the beginning of the Indian ÒNew Deal.Ó In this role, Collier redirected AmericaÕs relationship with its Indian citizens. Previous work with social problems shaped CollierÕs vision, as did the Russian anarchist, Peter Kropotkin. Collier drew heavily on the writings of Kropotkin, who rejected the ideas of competition and survival of the fittest and favored a classless society based on mutual aid between its members.
CollierÕs early influences included his fatherÕs suicide after a financial scandal, and his motherÕs death from addiction to relaxants for depression over the suicide. Kenneth Philp, in his book on the life of John Collier, states that Collier Òvowed not to seek Ôany success in the societyÕ that had led to his parentÕs downfall.Ó
Collier began helping immigrants as part of the Peoples Institute in New York City. Believing capitalism was destroying the fabric of society; he favored methods Bolsheviks used to influence the peasants. These methods, Philp notes, included Òmunicipal ownership of amusement places so films would concentrate on the universal strivings of mankind, thus raising the level of the working classÉ[since] the Bolsheviks Ôhad provided the most important single sociological experiment of our timeÕ in their effort to revive community lifeÉÓ
Such statements, at a time when fear of Communists was growing, led to Collier coming under the surveillance of the Justice Department. He headed for Mexico to escape this attention, but ended up in Taos, New Mexico, where he became enthralled with the Taos Pueblo culture and Indian life in general.
There, Collier saw individuals more oriented to the group than to their own self-interest. This he saw as superior to the individual being more important than the group. Philp states ÒCollier concluded that Pueblo culture, and tribal life in general, must survive, not only in justice to the Indian but in service to the white.Ó
With this background, Collier campaigned for and accepted an appointment as Indian Commissioner. He realized, however, that the Dawes Land Allotment Act was in direct opposition to his dream of the communal system he envisioned and hoped would become a model that all of America would eventually adopt.
Collier fostered creation of an omnibus bill that would replace the Dawes Act and accomplish his dream of re-establishing the tribal way of life. The result, introduced in 1934 by Congressman Edgar Howard of Nebraska and Senator Burton Wheeler of Montana, became known as the Wheeler-Howard Bill.
Opposition to his romantic plan no doubt disappointed Collier. Many Congressmen, missionaries, and even some Interior Department staff opposed the plan. Most dismaying was the lack of approval by many Indian tribes. While many Indians may have lost their allotments to shrewd, even unscrupulous deals, others were proud to be landowners and part of the nationÕs melting pot.
Collier campaign long and hard for the bill, yet Congress passed only 10 pages of the original 48. President Roosevelt signed it into law on June 18, 1934 and it became known as the Indian Reorganization Act.
The IRA, which in current times is claimed to be the authorization for the fee-to-trust process, solved some problems with Indian policy but created even more, just as Senator Wheeler feared. It paved the way for the AIM movement to become a force in federal Indian policy and allowed the Nixon administration to make changes that continue to divide rather than unite our nation.
So, is John CollierÕs dream of a tribal society for America still alive?
Fast-forward to 2007 and the U.S. House passage of the Hawaiian Recognition Bill, co-sponsored by Senator Norm Coleman of Minnesota. If passed into law, this bill would erase the melting-pot image of Hawaii in favor of tribalism.
Also, while many presidents have viewed federal Indian policy as temporary, it appears to be in line for expansion if Senator Hillary Clinton becomes president. Senator Clinton, in a November, 2007 speech at Wellesley College, detailed a platform of support for tribal sovereignty, a government-to-government relationship, and of a federal trust responsibility toward tribes.
Philp, summarizing the life and crusade of John Collier, states that, Òthe Indian Reorganization Act was a flawed product that failed to meet the needs of a diversified population.Ó Apparently, Senators Akaka, Coleman, and Clinton, among others, are still pursuing John CollierÕs dream with their promotion of a tribal society.
Historical data from ÒJohn CollierÕs Crusade for Indian Reform 1920-1945,Ó by Kenneth R. Philp, including an exhaustive bibliography.
From the ChairmanÕs deer stand ...
Sitting up in my deer stand, swaying in the wind and watching for that one not-too-smart deer to appear, I had a lot of time to ponder the world as it is today. I try to make sense of what is going on. Every politician should spend some time in a deer stand, boat, or fish house. Maybe a little more common sense would result.
This year I didnÕt have that pesky, chattering red squirrel barking in my ear. Word around the forest is that during grouse season he may have chewed on some Chinese toys, as he apparently died of lead poisoning.
Deer camp is a good chance to renew friendships and catch up on the up-to-date news from the year gone by. And that was accomplished!
On August 13, 1946, President Harry S. Truman signed into law the Indian Claims Commission Act. This Act created a special judicial body before which any American Indian tribe could file claims of all kinds against the United States, going back to the American Revolution.
Both the Federal government and Indian tribes welcomed the commission, as now all claims would have a timely resolution with their day in court. Overall, the Commission awarded damages in 341 cases, or over 62% of the claims adjudicated. The ICCA awarded about $1.3 billion (more than twice that in todayÕs dollars) during its 32-year life.
Now I pondered, why is it that we are still paying large settlements when everyone having their day in court was supposed to be the end to all claims? As tribes accepted payments, they had to sign statements recognizing that under the ICCA these would be their final claims.
Period.
My request of the readers of this column is for you to take a little time to contact in writing, your elected Senators, Representatives, Congress, and other Federal and State officials. Ask them to research the ICCA and how it applies to tribal claims today. Ask what they intend to do about it. Please share your letter and any replies you get with PERM.
(ItÕs going to be a long election season and maybe their responses will help you decide who will get your vote.) Thanks in advance.
A lot of lake and pothole news in the paper lately. Could help the ducks! My little pond had two nesting ducks this year, but no one got to hunt them, as a resident hawk eventually devoured all the little ones. Maybe we ought to think about predator control as part of the big picture.
While driving up North, please take time to stop into the local Mille Lacs Lake businesses and spend a buck or two. Our friends that make a living around the lake were dealt a serious blow when the slot limit was pulled out from under them. Great time of year for drive and a meal, or some Christmas shopping.
Hope you remembered Veterans Day and all who served from the Revolutionary War to present. With out Vets, the USA would not be what it is today. Every day should be Veterans Day, since every day there is some freedom we enjoy because someone stepped up to the plate. For centuries, they have fought for equal, fair treatment and the American way of life. Remember, anytime we give someone special rights, we are taking away the rights of others.
Have a Merry Christmas and a Happy New Year!
Doug M
ÔGood faithÕ resolution appears lost in history
The Indian Claims Commission Act (ICCA) was designed to correct any mistakes made by the U.S. in any treaties and agreements with the tribes. It is a powerful tool for sorting through claims such as the one made by the New York Oneida tribe.
The ICCA is unusual in that Congress gave the Commission authority to also hear claims that were moral in nature. Therefore, tribes could bring cases claiming that the federal government had coerced them into signing treaties, or misrepresented agreements, or acted in other ways that could be seen as violating fair and honorable dealings that were not recognized by any existing laws.
Also important was CongressÕ understanding that no one should be allowed to litigate a claim forever. In return for the elimination of any statute of limitations on claims filed under the Act, tribes understood that the ICCA would provide complete, final closure to their complaints.
(For a full discussion of the ICCA see Ò 50 Years Past the DeadlineÉ Why are Indian tribes still suing over ancient treaties?Ó Paper by Randy Thompson and Brandon Thompson)
Federal land ever more vulnerable to tribalism
U.S. Appeals Court for the Ninth Circuit will hear an appeal of a ruling favoring Indians objecting to a ski resort using reclaimed water to make artificial snow.
The ruling favored IndianÕs claim of a right to exclude all human activity but their own from sacred areas, which gives American Indian religious practitioners a veto power over lawful activities on land that belongs to the American people.
Just because the Circuit Court agreed to hear the appeal doesnÕt mean common sense will prevail. And Rep. OberstarÕs bill to redefine water will put millions more aces under federal jurisdiction—and vulnerable to such claims.
Hey!.....No artificial lures around here!
Includes material from William Perry PendleyÕs ÒAmerican Indians Given Veto Power Over Federal LandÓ at townhall.com
Federal, state leaders ignore property rights loss in Ôfee to trustÕ transfers
Shakopee City Council appealing BIA ruling
Many are expressing concern over the Bureau of Indian AffairsÕ ruling placing a large section of Scott County/Shakopee taxable land into an Òun-taxable trustÓ for the Mystic Lake CasinoÕs Sioux band of Indians. Few know how this loss of civil and property rights is based on an egregious leveraging of what is allowed by law. Most of our state and local leadership appear to be clueless as well, although they can hardly be excused.
In short, the law does provide for placing fee land into trust for tribes. However, it comes with many limitations that protect citizensÕ civil and property rights. Unfortunately, this legal fragment has been distorted beyond recognition and is being used for the balkanization of America. State and local elected leadership have also ignored it as well.
Expanded fee to trust proposed
Congress, possibly seeing how much the fee to trust program had become an extra legal process, started in 1999 to create a legal framework to cover unsupportable transfers of land. Congress may also have been driven by a prodigious lobbying effort, while being sold on the similarly groundless expansion of the concept of tribal sovereignty.
The race for more tribal casinos certainly was also part of a small, but highly vocal, demand for such legislation. No doubt the untaxed and unaccountable millions flowing from existing casinos provided some of the wherewithal.
Constitutional challenge
In any case, this effort by Congress was countered by the Citizens Equal Rights Alliance and others. CERA, which has been studying the issue for over a decade, saw that the proposal clearly was unconstitutional.
CERA asked the BIA to determine whether their fee to trust actions were precluded by the Indian Claims Commission Act. CERA also asked for an investigation of Federal Indian Policy by the Senate Judiciary Committee. CERA provided both with extensive information to support its position.
The information was also given to the President, Congress, Attorney General, state Governors and Attorney Generals. All were asked to support a Judiciary Committee investigation into the loss of civil and property rights Òby tribal governments exercising delegated power and authority from agencies of the United States Government.Ó
Holding pattern announced
CERA mounted a national campaign asking President Bush and Judiciary Committees to investigate federal Indian policy before creating more trust lands. Nothing happened. Finally, in November of 2001, CERA received a BIA statement entitled, ÒPending Land into Trust Final Rule Withdrawn. Need for Clear Direction and Processing Standards Cited.Ó
ItÕs likely the BIA recognizes the pickle theyÕre in. In the years following, BIA director George Skibine kept saying he was working on a Ònew planÓ for fee to trust. Meanwhile, his agencyÕs officials continued to approve increasingly extra legal fee to trust land transfers.
And, in spite of growing evidence, state officials never question the basis of BIAÕs decisions. For example, appeals to Governor Pawlenty were sidestepped. When the transfer of Scott County and ShakopeeÕs lands was about to occur, he would not question the decision, saying it was a Òlocal issue.Ó
Now a recent article states that the Bush Administration is pulling a plan it had been working on for fee to trust land transfers. No need even to pretend. The article indicated that the plan may be shelved for the rest of this administration!
Support for City CouncilÕs leadership
Fortunately, the City Council of Shakopee voted to appeal the BIA ruling.
CERA is helping. They recently gave ShakopeeÕs Administrator and City Council their 1999 research, and documents from Marlene Dawson, a former Washington State County Commissioner who has studied the fee to trust issue for many years.
It is extremely important for all Minnesotans to recognize the significance of ShakopeeÕs decision to appeal. This courageous act may be the clarion call for getting the Federal government to address the special-interest driven fee to trust program. Civil and property rights of all of Minnesotan are at risk. Otherwise it will be business as usual.
WhatÕs wrong with this picture?
Federal tax dollars, some $800 million per year for basic programs, are paid to tribes under the BIAÕs of tribal-priority-allocation. TPA funds are being used by a consortium of tribes to hire and pay the salaries of BIA staff to speed up the processing of fee to trust applications. For their largesse—with taxpayer dollars—consortium members get federal employees whose sole purpose is working on their fee to trust applications.
Casino tribes, frustrated with the time it was taking the BIA to approve putting land into Òfederal trust status,Ó came up with a Memo of Understanding between their Consortium and the BIAÕs Pacific Region Office. In it, the BIA Òre-programsÓ TPA funds back to the BIA for the new hires.
An Office of the Inspector General Report of Investigation found that the Òappearance of a conflict of interestÉto be, in fact, real.Ó
Can these tribes afford it? An Office of Management and Budget report showed federal funding for key Native American programs climbing from $5.3 to $9.4 billion, a 77% increase from 1993 to 2001.
Funding is often based on historical practices rather than need. A tribe with a profitable casino often gets more money per capita than a tribe without one. In one example, 41,000 South Dakota Oglala Sioux, 88% unemployed, were set to receive $168 per person. But CaliforniaÕs casino-rich Wintun Band collects an average of $4,457 for each of its 44 members.
Taxpayer dollars to put land into un-taxable trust?
Material from Time in Partnership with CNN, Inspector General Report, and trustandconsequences.com
Trojan Horse in the land of 10,000 lakes
The Clean Water Restoration Act (H.R. 2421,) authored by Rep. James Oberstar, did not find support at PERMÕs recent Board meeting. PERM is opposed to the potentially unlimited jurisdiction the bill appears to give federal government over the state. In a Òland of 10,000 lakes,Ó loss of state sovereignty could be substantial.
Concern comes from Minnesotans grown weary of the erosion of state sovereignty under federal regulations. With this bill, the ÒrestorationÓ could become a washout. Most of the state would be turned over to a sovereign nation of Òcritical habitat.Ó
Actually, state sovereignty in the matter was lost 35 years ago with passage of the Clean Water Act (CWA) in 1972. Until then, primary responsibility for water pollution control was vested with the states. Before the CWA, Federal authority for regulating discharges was restricted to interstate and coastal waters. The amended CWA put everything under federal control. Federal jurisdiction under CWA can restrict citizensÕ use of land, water, or air that might have been governed by a state
The real Trojan Horse in all this is how Òtribal sovereigntyÓ can further remove state lands under federal jurisdiction from citizen use. This happens when the federal government enters into arrangements in which federal authority is delegated to Native American tribes. Such delegation is based on the autonomy given to tribes to govern their reservation communities, independent of most state or local government authority.
The crunch comes when authority delegated to tribes includes territory beyond reservations, such as ceded or ancestral land held in trust by the federal government for future ownership by the tribe—and on which non-tribal citizens often reside or work. This removes non-tribal citizens from the legal protections enjoyed by all other U.S. citizens.
There even have been attempts by tribes to acquire land, neither ancestral nor ceded, for transfer into trust. This would further expand tribal authority beyond boundaries set for tribal governance.
If truly restored, the definition of clean water would look like its original version in the Federal Water Pollution Control Act of 1948. Such restoration would also address a common malady of most federal agencies known as Òmission creep.Ó
This problem at the Environmental Protection Agency may be aggravated by the consolidation of power possible in applying the CWA. Both tendencies led to two Supreme Court rulings, SWANCC in 2001 and Rapanos in 2006, which inhibited expansion of federal jurisdiction under the CWA.
A White House policy directive in 2003 strengthened the SWANCC ruling by limiting the definition of water in use by the EPA and Army Corps of Engineers.
An Executive Order keeping agency Òguidance documentsÓ from imposing any new legal obligations without prior review by the White House came out in 2007. It countered a workaround in which agencies can expand their discretion in rulemaking by issuing guidance documents, which explain how the agency will enforce federal laws. While not law, they can be coercive and impose costs. Many come with little or no public input.
This jockeying helps explain the Clean Water Restoration Act, first seen in 2005. The updated bill is simply another attempt to return to the EPAÕs direction prior to the Supreme Court rulings.
Answers to critics of Rep. OberstarÕs proposal have not been forthcoming, only the slogans used for less engaged citizens. Hearing that Òthere is no debate,Ó a trade-marked phrase borrowed whole from the climatic debate, is more troubling.
PERM members know how apathy of the public and elected leadership erodes state sovereignty and civil rights. PERM calls on its members and the public to stand up for restoration—of state sovereignty and civil rights of its citizens.
For more information on the Clean Water Restoration Act, contact
Don Parmeter, American Property Coalition
651-224-6219 donp@americanpropertycoalition.org
PERM part of a growing coalition
PERMÕs Board recently approved direct support for a Montana group. The action is another step in joining a growing coalition of organizations regionally and nationally.
The group, Montana Civil Rights Alliance, is challenging the stateÕs failure to ensure integrity of the voting process. They are also struggling with the contradiction of special rights voters electing people who will have no authority over these voters—beyond an obvious appreciation for their electoral support.
That conflict over voting is similar to one in our state. It makes the collaboration a valuable resource for addressing the issue here. In both cases, any affect on elections to federal office makes it a serious issue for every American voter.
Other state property and natural resource use issues impact or reflect similar conditions nationally. In these cases, PERMÕs ongoing collaboration with CitizensÕ Equal Rights Alliance and CitizensÕ Equal Rights Foundation also add to PERMÕs effectiveness.
Here in Minnesota PERM is strengthening its ability to achieve results by working more closely with the Mille Lacs Equal Rights Foundation. A joint fundraising project, the Fall Auction, successfully raised over $3,000 for each organization.
The Blainbrook event continues in this vein, with invitations to groups such as Mille Lacs Equal Rights Foundation, White Earth Equal Rights Foundation, and the American Property Coalition. Invitations are also being made to Legislative leadership and individuals concerned about the recent Shakopee fee to trust land transfer.