Wednesday, January 11, 2017

The U.S. Needs to Ratify ILO Convention 169

Given the history of federal and state government relations with tribal nations, as well as current deprivations of autonomy, and the recent Dakota Access Pipeline protest, the ratification of ILO convention 169 would ensure that progress is made in the areas where it is still lacking. I've highlighted some areas of concern below.

Checkerboard zoning and inadequate tax revenue from land within reservations

Tribal governments are not permitted to regulate land use within their territory. This came out of the Supreme Court ruling in Brendale v. Confederated Tribes, which forbids tribes from exercising regulatory power over simple fee lands held by non-members.
(a) Any regulatory power the Tribe might have under its treaty with the United States cannot apply to lands held in fee by non-Indians. Montana, 450 U.S. at 450 U. S. 559. The Tribe no longer retains the "exclusive use and benefit" of such lands within the meaning of the treaty, since the Indian General Allotment Act allotted significant portions of the reservation, including the lands at issue, to individual members of the Tribe, and those lands subsequently passed, through sale or inheritance, to nonmembers such as petitioners. The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. Id. at 450 U. S. 560, n. 9, 450 U. S. 561. The fact that the Allotment Act was repudiated in 1934 by the Indian Reorganization Act is irrelevant, since the latter Act did not restore exclusive use of the lands in question to the Tribe.
Substantial economic development isn't possible without a uniform zoning code, and even if tribal governments did have regulatory power over simple fee land owned by non-members, there would still be a checkerboard pattern of trust land, allotted land, and simple fee land that would inhibit development.

As a consequence of not being permitted to apply their zoning ordinances to simple fee land owned by non-members, tribal governments are not permitted to levy taxes on non-member land owners ,within reservation territory, as a result of the later ruling in Atkinson Trading CO. v. Shirley.
In Montana v. United States, 450 U.S. 544 (1981), we held that, with limited exceptions, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian fee land within a reservation. The question with which we are presented is whether this general rule applies to tribal attempts to tax nonmember activity occurring on non-Indian fee land. We hold that it does and that neither of Montana’s exceptions obtains here.
The consensual relationship must stem from “commercial dealing, contracts, leases, or other arrangements,” Montana, 450 U.S., at 565, and a nonmember’s actual or potential receipt of tribal police, fire, and medical services does not create the requisite connection.
Lack of jurisdiction over crimes committed on reservations 

Tribal governments are not permitted jurisdiction over crimes committed by non-members, felonies and heinous crimes. The highest sentence they are allowed to impose on members, convicted in their courts, is one year in prison. This along with the grinding poverty has led to skyrocketing crime rates which further inhibits economic development.

Sixth Amendment Violations
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
During the DAPL protest, Amnesty International's human rights delegation found that half of the five hundred plus protesters arrested were not provided defense attorneys and their trials were delayed.
'According to reports, the public defender system in North Dakota is struggling to handle the case load stemming from the more than 500 arrests related to protests of the DAPL. The petition that was submitted to the Court notes that 79 attorneys have been assigned as public defenders for 265 cases, while an additional 264 people are listed without counsel. Furthermore, it is reported that private attorneys in the state either cannot or will not be able to fill the needs of those seeking representation. Other public defenders within the state of North Dakota may be limited from taking on more of these cases due to the conspiracy charges that were filed in several of these cases.' 
A lack of tribal consultation over developments that may negatively impact their well-being 

As I noted back in a post from early December of last year, the Army Corps did not consult the tribal council until well after construction on DAPL began.
The Tribal Historic Preservation Office contacted the Army Corps as early as February 2015, several months before construction began, and again in April of the same year, without receiving a response to any of the concerns they raised, their request for an environmental impact statement and and their request for tribal consultation.
Whether or not this was due to miscommunication on both sides is trivial; the principle of the matter is that they should have been consulted before construction was permitted on Corps land, even had they not sought consultation.

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