Native American Press / Ojibwe News (Bemidji, Minnesota), 2001-09-07

              ..■'"'" •'   :"   ■   '  '
•—-      -        -       M 	
INDEX
News Around Indian Country 2
Commentary/Editorials/Voices 4
Smoke Signals of Upcoming Events 5
Classifieds 6-7
Through
Windows &
Walls by Peter
Kater, R. Carlos
Nakai
pg 7	
Review of Richard
E., Dorothy Rawlings
Nelson Collection of
American Indian Art
pg6
Open letter to Chief
Justice Blatz
pg4
Mass cultural dislocation
of Native child removal
continues in Minnesota
pgi
Commentary
Tribal leaders
wise to settle
Melby case
Grand Portage Band Purchases Marina to Settle Lawsuit:
Band pays $1.6M to avoid litigating
diminishmeiit issue
Voice
o
T   H   E
People
web page: www.press-on.net
By Jean Pagano
A recent court case, Melby v.
Grand Portage Band of
Chippewa (the Grand Portage.
Band), was recently settled outside of Federal Court in Minnesota. Whereas the issue at hand
was the jurisdiction ofthe Grand
Portage Band over the
Voyageur's Marina, one ofthe
more interesting aspects ofthe
case came from Senior Judge
Donald D. Alsop in which he
stated that "The Court finds the
circumstances compelling for reconsideration ofthe Court's Order to determine if the original
boundaries ofthe Grand Portage
Reservation were diminished
such that Plaintiffs' land is no
longer within the boundaries of
the present day Grand Portage
Reservation". (Order
of 8 Nov
2000, Civ.
No. 97-
2065).
The Plaintiffs, Carroll
Melby and
the Herbert
Iven Melby Revocable Trust
claimed that the Grand Portage
Band's jurisdiction did not apply
to their land. The Court ruled on
13 August 1998 that the land did
in fact lie within the boundaries
ofthe Grand Portage Reservation. In a 25 October 2000 letter
to Judge Alsop, Plaintiffs' attorney Randy V. Thompson argued
that the Eighth Circuit's decision
in Yankton Sioux v. Gaffey (188
F.3d 1010(8,h Cir. 1999) effectively raised the issue ofthe diminishment oftribal lands under
the Nelson Act in the 1889. The
Eighth Circuit in the Gaffey decision held that the Yankton Sioux
Reservation had been diminished
by loss of lands originally allot
ted to tribal members but which
was passed out oflndian hands.
Mr. Thompson further states that
the allotments under the Nelson
Act, the General Allotment Act,
and the Burke Act were precisely
consistent with reservation dis-
establish-ment. Furthermore, the
Nelson Act ceded aJLinterest in
the Grand Portage Reservation,
and as the Supreme Court said in
South Dakota v. Yankton Sioux.
Congress clearly intended to disestablish or diminish the Grand
Portage Resen'ation. Although a
tribal member, Joseph
Montferrand, had received the
land as an allotment, the tribe's
interest ended when he sold the
land to the plaintiffs' non-Indian
predecessors.
The land in question in Melby
The issue at hand when the Melbv
v.The Grand Portage Band was
one ofthe ability ofthe Grand
Portage Band to levy taxes
against the Voyageur Marina.
v. The Grand Portage Band was
land acquired under the allotment
of lands at Grand Portage. Therefore, when non-Indians acquire
allotted lands, the tribe no longer
has control over these lands. The
Court held in the Gaffey decision
that "the parties did not intend for
the tribe to retain control over allotted lands which passed out of
trust status and into non Indian
hands" 188 F.3d at 1030.
The issue at hand when the
Melby v. The Grand Portage
Band was one ofthe ability ofthe
Grand Portage Band to levy taxes
against the Voyageur Marina. In
the final analysis, the issue was
no longer one of tax levies, but a
deeper issue of diminishment of
tribal lands and also oftribal authority. This very issue of diminishment was more than Grand
Portage Band wanted to have
aired in front ofthe District
Court. It may very well be the
case that others may have been
levied taxes by the Grand Portage
Band on lands that are no longer
within the tribal boundaries. The
issue of collection of tax levies
pales in comparison to the notion
of diminishment Diminishment
is a rather unattractive topic in
these days oftribal sovereignty
and tribal empowerment, yet the
fact remains: the damage done by
allotment and the Nelson Act, the
General Allotment Act, and the
Burke Act are all issues which
may, which most likely will come
back to haunt not only the Grand
Portage Band but other Bands
and Tribes as well.
A settlement in the case of
Melby v. The Grand Portage
Band was arrived at on 6 March
2001. Both the Plaintiffs, represented by Randy V. Thompson,
and the Defendants, represented
by Vanja S. Hogen, were able to
come to agreement and affect
settlement ofthe case. The settlement included the sale ofthe
Voyageurs Marina Property to
the Grand Portage Band of
Chippewa for $1,581,680 (including "Goodwill and as consideration for the Settlement").
The particular point is rather important because it returns the
property to the Grand Portage
Band but not back into Trust Status. The other important point is
that the agreement ignores and /
or delays the arguments concerning diminishment oftribal lands.
Yet, the argument of diminishment, like the Nelson Act, seems
to always be looming just at
amis' length.
Native  *~
American
Press
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Founded in 1988
Volume 13 Issue 41
September 7, 2001
BIA official
finds new
compacts
'more
equitable9
Associated Press
SANTA FE - The head ofthe
Bureau oflndian Affairs thinks
New Mexico's new state-tribal
gambling compacts are better than
the old deals because they would let
the tribes keep more ofthe take.
Neal McCaleb, assistant secretary of interior for Indian affairs,
said he and the Bush administration
are enthusiastic about Indian economic development.
McCaleb, a member ofthe
Chickasaw Nation of Oklahoma
said he views Indian gaming as a
way to help lift tribes out of poverty.
"Clearly Indian gaming has been
a stimulus for economic development," he said. "It's brought outside
capital investment to the reservations, it's brought jobs and in many
cases, real prosperity."
The new gambling compacts
would reduce from 16 percent to 8
percent the amount of slot machine
proceeds the tribes must pay the
state.
"Clearly, that's a lot more equitable for the tribes," McCaleb said.
McCaleb warned that litigation
between the state and the
Mescalero Apache tribe and
Pojoaque Pueblo - neither of which
agreed to the new compacts - could
BIA to page 7
Sioux tribe ask full appeals court
to hear Devils Lake dispute
Photo credit: Laurie Barrett
The Leech Lake Labor Day Pow-wow drew a large number of dancers, and crowds from
throughout the upper midwest. The host and co-host drums for the event were Leech Lake
Intertribal of Cass Lake and Midnite Express of St. Paul. Leroy Strong of Minneapolis
emceed the event, and Don Staples and Jerry Morgan, both of Cass Lake, kept things
moving as arena directors.
T
By Blake Nicholso
Associated Press
BISMARCK, N.D. - The Spirit
Lake Sioux Tribe will ask the full
8th U.S. Circuit Court of Appeals
to hear a case involving ownership of Devils Lake, while attempting to resolve the dispute
through negotiations with the state
and federal governments.
The chance ofall nine circuit
judges hearing the case is smalL
said clerk Michael Gans, in St.
Louis.
"We get almost 500 (requests) a
year. The court rehears anywhere
between six and 15 cases, so obviously the vast majority of them
are denied," he said.
hi August, a three-judge panel
in Fargo ruled against the tribe in
the complex case, affirming a federal judge's decision last year that
the tribe waited too long to sue for
its rights to the lake.
However, Judges Myron Bright,
Kermit Bye and Frank Magill left
open the question of who actually
owns the lake. Bright also disagreed with the other judges on
the question of whether the tribe's
lawsuit fell within the filing deadline set by federal law.
Andrew Small, a Minneapolis
attorney for the tribe, said Friday
that he will petition the full 8th
Circuit to hear the case.
If the full court rejects the request or hears the case and affirms
the panel's ruling, only the government could take the ownership
question back into court.
Small said he also will be contacting state officials and the U.S.
Department of Justice to see if the
dispute can be resolved through
negotiation.
"Nobody likes litigation, and
leaving it in someone else's
hands," he said.
North Dakota Attorney General
Wayne Stenehjem has said he
would be open to negotiations
with the tribe.
The Spirit Lake Nation sued the
state and federal governments in
1986 to secure the rights to the
lake, saying an 1867 treaty gave
the tribe ownership. The lawsuit
has lingered in the courts since
then.
The main question surrounding
tlie filing deadline is when the tribe
learned that the government was
laying claim to the lake. The tribe
argues that happened in 1981,
when the government backed away
from a 1976 Bureau of Indians Affair memo stating the lake was being held in trust for the tribe.
The government says the tribe
should have known the government was laying claim to the lake
in 1971, when the state gave the
federal government a portion of
the lake for the Garrison Diversion project. The project was intended to bring Missouri River
water to eastern North Dakota.
The 8th Circuit Court of Appeals reviews the decisions of federal trial courts in North Dakota,
South Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.
New Oglala Sioux tribal law requires sex
offenders to register with police
Associated Press
RAPID CITY, S.D. - Starting in
October, sex offenders on the
Pine Ridge Indian Reservation
must register with tribal police
within 10 days of coming to the
resen'ation.
The Oglala Sioux Tribe Council unanimously passed the law
last November.
Although similar laws exist
within state and federal jurisdictions, the tribe is the first in the
state, and one of only four in the
nation, to pass such a law.
The laws are often called
"Megan's Law" after 7-year-old
Megan Kanka, who was assaulted
and killed in 1994 by a convicted
pedophile who lived in her New-
Jersey neighborhood.
In the case of Pine Ridge, it was
a 3-year-old boy who sparked the
law.
Pauletta Red Willow of
Wounded Knee said the push for
a Megan's Law began when the
child turned up missing for a few
hours.
Red Willow, a children's advocate who was helping the mother
search for the child, called tlie
Oglala Sioux Public Safety Department.
"Does the mother know she has
a convicted child molester living
two doors down from her?" an officer asked her.
Red Willow said the mother
had no way of knowing.
When the child was found, he
had been molested, but not by
that neighbor, she said. The per
petrator, who was wearing a Halloween mast, was never arrested.
"They say you steal a child's
spirit when you do something like
this," Red Willow said.
Although a Megan's Law might
not have helped that child, Red
Willow was motivated by the case
to do more to protect children.
She said she knows many children who have been molested by
relatives, acquaintances and
strangers.
"That's what keeps you motivated," she said.
State and federal laws have required sex offenders to register
with local law enforcement, but
on Indian reservations, those laws
do not apply.
"When they come to the reservation, they lose track of them,"
Red Willow said. "Basically, we
were a haven for sex offenders."
The new ordinance requires any
resident convicted ofa sex crime
against children to register with
tribal police. They will be required to give their name, address,
photograph, crime committed and
other information. The law applies
to tribal and non-tribal members.
South Dakota state law requires
anyone 15 or older convicted of
any sex crime to register.
Felony sex crimes on the reservation are prosecuted in federal
court in Rapid City, and no one is
sure how long the tribe's registry
could be.
Denise Gibbons ofthe tribe's
public-safety office said offender
information will be sent to the Di
vision of Criminal Investigation
in Pierre. It will eventually be entered into a database tliat will be
available to tribal police.
Public Safety Business Manager Wendell Yellow Bull said his
office also will work with Rapid
City police since many people
move between the city and the
reservation.
"I do believe in it," Yellow Bull
said. "I think the intention ofthe
law was to bring awareness and
address the issue, so 1 think it's
going to be an excellent opportunity for all entities to come together and bring out that information."
He said some offenders have already heard ofthe new law and
have come to the police station to
register.
Lists also will be sent monthly
to reservation schools and will be
available to the public, he said.
Although some feel sex offenders have served tlieir time and
shouldn't have to register, Red
Willow said statistics show
pedophiles are more likely to be
repeat offenders than other types
of criminals.
"Adults try so hard to protect
our perpetrators," she said. "It's
time to protect our kids."
Others warn that the law may
not change anything.
Tom Collins, field-program
specialist for the state Department
of Social Services in Rapid City,
OGLALA to page 5
'Mass cultural dislocation'of Native child removal continues in Minnesota
By JeffArmstrong
Native children in Minnesota
are subjected to out-of-home
placement at a rate many times
the national average for their
race, according to a comparison
of state human services records
and a recent mental health study
by the U.S. Surgeon General.
Mental Health: Culture, Race
and Ethnicity, a supplement to
the Surgeon General's annual
report, observes that the removal of children from their
families has long-term adverse
consequences, particularly
among cultural and racial minorities.
"Studies have consistently in
dicated that children who are removed from their homes are at
increased risk for mental health
problems," the report states, "as
well as for serious subsequent
adult problems such as
homelessness."
The federal report treats the
disproportionate placement of
indigenous children as a pre-
1978 Indian Child Welfare Act
phenomenon continuing to affect
the now-adult subjects of what it
terms "mass cultural dislocation." Citing a 1998 survey by
the U.S. Department of Health
and Human Services, the report
states that Native American children currently make up 1% of
those in foster care, just slightly
above the .9% U.S. Native
population rate.
In Minnesota, however, Native
children made up more than
11% of those in out-of-home
placement in every year from
1994-98, according to the state
Department ofHuman Services,
although the indigenous population in the state is estimated at a
mere 1.1%. While the indigenous population is younger
than the state average, the 1998
removal rate of 11.1 % is still
more than six times that ofthe
1998 estimated Native youth
population of 1.8%.
The real numbers are even
more stark. In 1994, 2,176 Native children were placed in foster care out of a 1990 census estimate of 20,491 indigenous
children in Minnesota. If the
census figures are accurate,
more than 10% ofNative youths
are removed from their homes
annually in the state, a higher
rate than any state examples
cited in the Surgeon General's
report as gross disparities
prompting congressional enactment of ICWA.
Although many tribal officials
in the state have long cited such
disparities in support of efforts
to create tribal courts with
ICWAjurisdiction, the expan
sion of
tribal courts
in tlie later
years of tlie
1990s
seems to
have had no
impact on
the problem. Between 1994
and 1998,
the Native
child placement rate
ranged only from 11.0-11.4%.
Similarly, citing Indian Health
Services statistics, the federal report states that the infant mortal-
If the census figures are accurate,
more than 10% of Native youths
are removed from their homes
annually in the state, a higher rate
than any state examples cited in
the Surgeon General's report as
gross disparities prompting
congressional enactment of ICWA,
ity rate for Natives nationally
declined from 22 per thousand
to 9 per thousand from 1972 to
CHILD to page 5