Corporation Defends Sexual Assault, attacks Tribal Authority

On December 7th, the Supreme Court will hear oral arguments and rule whether or not tribal courts have the authority to take legal action against corporations operating on reservations. The case stems from a 2003 civil suit, charging a corporate employee with sexual assault against an Indian child.

The Mississippi band of Choctaw Indians brought this case against the Dollar General Corporation after a store manager at the Choctaw reservation Dollar General, Dale Townshend, molested a thirteen-year-old Indian boy who was interning at the store as part of a Youth Opportunity Program

Congress has already installed legislation that prevents Indian tribal courts from bringing criminal charges against non-Indians accused of crimes on tribal land, and the attorney general of Mississippi declined to file any actions against Townshend or Dollar General in state court. Thus the parents were left with to pursue their case in tribal civil court as a last resort.

Dollar General Corporation, valued at $20 billion, is denying any responsibility for the conduct of their employees on tribal lands. They have lost in tribal court, federal court and the court of appeals, but their attorneys continue to argue that the tribe does not have the authority to police the behavior of non-tribal members, even if those individuals violate the human rights of tribe members.

This is an alarming assault on tribal sovereignty. If the arguments made by Dollar General’s corporate attorneys are followed to their logical conclusion, tribal authorities would have zero recourse to address criminal actions of non-Indians on their land, enabling them to commit crimes with impunity.

The extent of the powers that a tribal government can exercise over non members has been a topic of contention for decades. In Montana v. the United States (1981), the Supreme Court ruled that a, “…tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members.”

Furthermore, the case asserted that a tribe can, “exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the Tribe.”

This clause directly asserts the authority of tribal government to take action when an outside entity engaged in commerce on tribal lands commits a violent crime against a tribe member.

However, in Nevada v Hicks (2001), the Court recognized it has never held that a tribal court had jurisdiction over a “nonmember defendant” in any context.

The result of these conflicting rulings is a strange contradiction over whether or not tribes can actually enforce laws against non tribal members if they commit crimes on on tribal land. This legal purgatory is dangerous, not just for tribal sovereignty, but for the thousands of people who live on Indian reservations.

Dollar General operates under the belief that the safety of Indians on their own lands is secondary to the profits of corporations operating there. This heinous position undermines the authority of Tribal governments nationwide to protect their people from violence and exploitation.

It is imperative that the Supreme Court reject these faulty and unjust arguments brought by Dollar General’s attorneys, and uphold the rulings of lower courts that have elevated the importance of public safety over the corporate bottom line. Let us hope they have the wisdom to rule justly on this case.

 

South Dakota Judge Displays Pattern of Racism

On November 4th, South Dakota’s Supreme Court struck down a standing order that barred all Oglala Lakota County residents from serving on juries. The court found that the 2009 standing order issued by Seventh District Court Judge Jeff Davis unnecessarily violated the civic rights of residents in that county.

“The circuit court’s ruling, effectively prohibiting the entire population of a South Dakota county from participating in their civic right to be a juror, is a structural defect we cannot allow,” declared Chief Justice David Gilbertson in the court’s unanimous ruling.

Oglala Lakota County has roughly 14,000 residents, approximately 96% of whom are Native American. For the past six years, none of them have been allowed to exercise their right to serve on a jury of their peers.

Justice Gilbertson went on to rule that Davis’ standing order to exclude the residents of a county from service far exceeded his authority as a circuit court Judge. Davis also failed to file this motion for approval with the South Dakota Supreme Court, as he was mandated to do.

The actions of Judge Davis are deplorable and fully consistent with his history of arbitrary and racially discriminatory judicial conduct.

In March of 2015, a federal court ruled against Judge Davis in the lawsuit Oglala Sioux Tribe v. Van Hunnik, brought by the ACLU that accused Davis, Pennington County Prosecutor Mark Vargo, State Director of the Department of Social Services (DSS) Lynne Valenti, and Pennington County DSS employee Luann Van Hunnik, of systematically violating the Indian Child Welfare Act of 1978, and due process clause of the 14th amendment of the Untied States Constitution.

Chief Judge Jeffrey L. Viken’s ruling found that, “An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies, and that an alarmingly high percentage of these children are placed in non-Indian foster and adoptive homes and institutions.”

Davis often arranged custody hearings within 48 hours of removing a child from their family, before the parents could arrange adequate legal support. Typically, Davis would consider a case for less than five minutes, before ruling against the parents. Children removed were often kept in foster care for weeks and months before being reunited with their families.

Viken declared that, “Indian children, parents and tribes deserve better”, and ordered the state to: Provide parents with adequate notice prior to emergency removal hearings, allow parents to testify at those hearings and present evidence, appoint attorneys to assist parents in these removal proceedings, allow parents to cross-examine the state’s witnesses in the hearings, and require state courts to base their decisions on evidence presented during these hearings.

The ruling also found the conduct of Davis to be particularly damaging, because his colleagues often followed the policies he set on removing Indian children from their homes.

The recent ruling against Davis and that of Oglala Sioux Tribe v Van Hunnik are not isolated incidents of one disgruntled judge, but are representative of the system of discrimination and exclusion faced by the Lakota people in South Dakota. Both of these cases go beyond Davis, and accuse other judges, prosecutors and state DSS employees of racial bias and misconduct. They come at the same time as a federal lawsuit launched by the Department of Justice, which accuses South Dakota DSS of screening prospective employees by race.

Judge Viken is correct when he declares that American Indians in South Dakota deserve better than the systemic injustices that are currently perpetrated against them, at all levels of South Dakota state government and administration.

Feds Sue South Dakota For Racism

Yesterday the United States Justice Department filed a lawsuit against the South Dakota Department of Social Services for their practice of racially screening prospective employees, validating an argument that the Lakota People’s Law Project has been making for the past decade — the DSS is a racially prejudiced institution that actively and systematically discriminates against Native Americans.

The case centers on Cedric Goodman, a 2010 applicant for an employment specialist position with the DSS at the Pine Ridge office. Goodman has a bachelor’s degree, and had begun working towards a master’s degree at the time of his interview. He also had worked for five years as a social worker, with three and a half in a supervisory position, and already had four years of experience work in this field as an employment specialist for a state run agency. He met all of the preferred qualifications set forth by the DSS.

Goodman watched as the employment opportunity he had applied for vanished from the DSS website, and was stunned to see the position re-opened and filled the next day by a white candidate who had recently graduated college, and had quite limited experience, mostly in retail and office environments. The DOJ official complaint alleges that she was hired despite having, “no work experience that met the employer’s preferred qualifications.” This disparity clearly demonstrates that the DSS chose not to hire Goodman because of their prejudices, not problems with his education, experience or professionalism.

“When employers discriminate against qualified job applicants because of what they look like or where they come from, they violate both the values that shape our nation and the laws that govern it,” said Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division, who filed the case against the South Dakota DSS.

The Lakota People’s Law Project is excited that the federal government has chosen to seek justice for victims of discrimination in South Dakota, but we are not surprised by the allegations. We began investigating the practices of the DSS in 2005, after a group of Lakota grandmothers claimed the agency was seizing Indian children from their families and placing them in non-Native settings in direct violation of the Indian Child Welfare Act of 1978.

In subsequent years of investigation, LPLP confirmed these accusations, and proved that the DSS was in fact wrongfully removing hundreds of Indian children from their homes on an annual basis, and approximately 90 percent of these children were placed in non-tribal foster care or adoptive settings. We found that while Native American children constitute 13.5 percent of the child population in South Dakota, they comprise 54 percent of the youth foster care population.

This forcible diaspora if Native children is not merely due to the the blatant discriminatory animus present in South Dakota’s state institutions, but is a result of the profitable nature of child removal. A 2011 report by National Public Radio asserted that the South Dakota Department of Social Services received about $65 million per year in federal money for Lakota foster care due to the categorization of all Native American children as special needs.

“The state of South Dakota operates under a perverse financial incentive, as they figured out they could prey on the politically and economically marginalized people relegated to reservations and enrich their state coffers in the process,” said Bryan Brewer, former president of the Pine Ridge Reservation. “This is not only a large affront to our people, who have been mistreated and brutalized by an indifferent system for centuries, but it is an outright betrayal of the public trust and a despicable display of venality and corruption by South Dakota’s highest officials.”

The decision of South Dakota DSS officials to systematically violate the rights of Native families to receive increased federal funding is consistent with their actions to discriminate against prospective Native employees. Now they are finally facing justice.

This latest lawsuit is the second of two major civil rights-related lawsuits to be brought against South Dakota, and involving the DSS, in 2015. The first was filed by the American Civil Liberties Union in federal court and was ruled in favor of the plaintiff in March.

The court ruled that South Dakota Judge Jeff Davis and his associates, many of whom worked with the DSS, violated the rights of multiple Indian families by willfully and systematically ignoring the dictates of Indian Child Welfare Act. Furthermore, it rules the entire court system, including lawyers and other officials, routinely violated the 14th amendment of the Constitution.

These two lawsuits claiming invidious discriminatory animus toward Native Americans by South Dakota comes amid other incidents, including a white man escaping prosecution after he dumped beer on and hurled racial epithets at young Lakota children at a hockey game in Rapid City. It comes amid questionable killings of Indians by police and revelations that Native Americans comprise disproportionate jail populations in South Dakota and throughout the nation’s prison system.

“The Lakota People’s Law Project has exhorted the DOJ to investigate and sue the state of South Dakota for rampant and widespread racial discrimination against Indians for several years, so this undoubtedly represents a major victory for our cause,” said Lakota People’s Law Project Attorney Chase Iron Eyes. “How long will America ignore what is happening in South Dakota? How long will the United States tolerate the most egregious case of racism as it festers in the heart of the country? While these lawsuits are heartening and certainly help the cause, they are poor proxies in confronting comprehensive and widespread discrimination against Indians. We need firmer moral pressure on the oppressors who run this state before we can begin to reconcile and arrive at real substantive solutions.”

Proposed Bill Assaults Tribal Sovereignty

Republican Representatives are attempting to undermine tribal sovereignty yet again, this time attempting to pass legislation that would render it more difficult for tribes to obtain recognized federal status.

On October 20th, Republican Representative Rob Bishop introduced H.R.3764 or the “Tribal Recognition Act of 2015”. This bill is intended to remove the Bureau of Indian Affairs authority to recognize American Indian tribes, and give those rights exclusively Congress instead

The Lakota People’s Law Project questions the motives for Bishop’s desire to strip the BIA’s power, asserting that terminating this power could undermine tribal sovereignty, attempt to blot out their individual cultures through assimilation and seize natural resources for the purpose of commercial development.

Bishop sits as chairman of the House Natural Resources Committee, which was recently criticized by the BIA’s assistant secretary Kevin Washburn. Washburn declared that the committee’s statements and questioning, “harkened back to the termination era” lasting from the 1940’s to the late 1960’s, where it was official federal policy to eliminate collective tribes by attempting to assimilate American Indians as individuals.

If H.R 3764 is passed, petitions to recognize tribes will be reviewed exclusively by Bishop, and the Speaker of the House.

Washburn’s criticisms are not without substance. Representative Don Young of the Natural Resources Committee released documents citing the General Allotment act of 1887 as “humane”, completely ignoring the reality of this covetous legislation, which sought to end collective tribal landholding, and more than halved the land controlled by the many tribes.

This new assault on tribal sovereignty is an echo of earlier legislation meant to disenfranchise American Indians and remove tribal authority.

Bishop’s attempt to take away power from the BIA is found near the bottom of H.R.3764 where it states

 SEC. 11. CLARIFICATION OF FEDERAL RECOGNITION AUTHORITY.

(a) Act Of Congress Required.—An Indian group may receive Federal acknowledgment (or re-acknowledgment) as an Indian tribe only by an Act of Congress. The Secretary may not grant Federal acknowledgment (or re-acknowledgment) to any Indian group.  “

This later portion of the bill also explicitly states that “The Secretary” of the BIA may not  recognize tribes. This degrades the process of petitioning for Federal recognition to a point where the decisions regarding recognition are subject to more arbitrary criteria.

First, if congress has the only say in tribal recognition, then its decisions cannot be subject to litigation. Unlike the BIA whose decision in recognizing a tribe must be a “yes” or “no”, Congressional decisions can hang, and remain ambiguous. Until a clear decision is made, which is not required by H.R 3764, tribes cannot file a lawsuit to appeal any decisions.

Second, passing H.R 3764 as it is currently written could terminate the status of any tribe that has been recognized outside of a congressional decision. Washburn criticized this hidden problem with the bill during his testimony at the Natural Resources committee’s hearing on the bill on October 28th.

He said that “[H.R 3764] could terminate the status of 229 tribes currently recognized in Alaska”. Citing a hearing in the Natural Resources committee on Sep 26th, where members of the committee disputed the legitimacy of tribes existing in Alaska.

Finally, H.R 3764 would make tribal recognition into a politically motivated task that could harm tribal sovereignty,instead of the objective and nonpartisan process the BIA currently uses. Petitioning for tribal recognition with the BIA requires the bureau to review documents of lineage, and to amass other forms of evidence to establish the legitimacy of a tribe and its members.

Congressional recognition can be started or stopped at the whim of a committee member, and be lobbied with stipulations that seriously harm tribal sovereignty. Any law that recognizes a tribe or tribal lands can be riddled with stipulations that restrict land usage or taxes that water down the potential sovereignty of tribes.

Even with clear opposition from the United South and Eastern Tribes and the Ute Tribe of Utah, the bill is being supported by Republican representatives. Representative Don Young dismissed the complaints of the tribes and claimed they were influenced by “lobbyists”, ignoring the completely legitimate concerns of American Indian tribal leaders.

Congress, along with presidential executive orders and federal administration acts have always been able to federally recognized tribes. However, the “Tribal recognition act of 2015” would make it so that all recognitions must explicitly be approved by Congress. This would severely slow down the process of petitioning for federal recognition of tribes by reversing the legitimacy of some tribes and requiring they be reaffirmed by Congress.

Given the inefficient speeds that lawmakers operate with at the federal level, this could take decades. The normally arduous process of recognition will only become more difficult, and conservative members of congress may work to actively impede federal recognition for tribes.

Representatives Rob Bishop and Don Young seem to not care about the best interests of the tribes. They propose legislation that will only hinder tribal affairs, and give their clearly anti-Native agenda power over any new tribal applications.

Instead, American Indian tribes should be consulted to find a solution to making tribal recognition more efficient and equitable, without congressmen pretending to do so for political gains. H.R 3764 is masked as a step forward, but in reality reverts the issue of tribal sovereignty to a 19th century mindset.