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Contemporary Issues

What is Tribal Sovereignty?

The U.S. Supreme Court in a case called Worcester (pronounced “wooster”) v. Georgia, 315 U. S. (1832), handed down a landmark decision that established the sovereign status of Indian tribes. That decision continues to be followed to this day as the legal foundation for tribal sovereignty. In Worcester (and in later cases consistent with that case) the nature and parameters of tribal sovereignty have been described to include the following attributes:

  1. Indian tribes were sovereign before the coming of European powers.
  2. An Indian tribe before “discovery” by European powers, possessed all the powers that can be possessed by a state. After discovery, tribes retained sovereignty which continues to this day. However, the original tribal powers, as explained below, have been diminished.
  3. The sovereignty of Indian tribes is “inherent.” That is, it is not granted by the United States or a state of the United States; rather, it is “inborn.”
  4. Indian tribes are not “foreign nations” referred to in the U. S. Constitution but are “dependent domestic” nations, that is, that they are subordinate to the United States and dependent on the United States for protection.
  5. Tribal sovereignty has a territorial component—much like a state or country’s boundaries—called, in the law, a “reservation” or “Indian country.”
  6. A tribe’s sovereignty resides in the membership of the tribe; some or all of the sovereign’s power ordinarily is delegated to a tribal government by the adoption of a constitution describing how sovereign powers are to be exercised.
  7. Indian tribes are under the protection of the United States and states possess no authority over Indian affairs unless that authority was given to the state by an act of Congress.
  8. A tribe possesses “sovereign immunity,” i.e., it cannot be sued in a court of law without its consent or the consent of Congress.
  9. Because a tribe’s sovereignty was established before the United States was established, an Indian tribe’s governmental actions are not subject to restrictions on governmental action imposed by the Bill of Rights of the United States Constitution (the first ten amendments). Instead, a tribe’s governmental actions are subject to the Indian Civil Rights Act, an act of Congress, which is patterned after, but not identical to, the U.S. Bill of Rights.
  10. Because tribes are domestic dependent nations they have lost powers which are inconsistent with that dependent status. Sovereign powers of tribes have been lost because of the “dependent status” include: the power to make war; the power to make treaties with foreign nations; the powers to dispose of lands without the consent of the United States; and criminal jurisdiction over non Indians.

There has always been a tension among tribes, the United States, and the states with respect to the extent and effect of the powers of each of those sovereigns in Indian country. Most recent examples have been controversies over the scope of tribal sovereignty over areas of reservations taken for federal projects (e.g., taking area for the Garrison reservoir) and over tribal authority over activities of non-Indians where those activities take place on a reservation and have an effect on tribal sovereignty or the health and welfare of tribal members. The Three Affiliated Tribes, in recent years, has been a party to litigation involving these kinds of issues—i.e., the extent and effect of tribal sovereignty—in the federal courts and in the United States Supreme Court. (Hobbs, Straus, Dean, and Walker)

Most recently, tribal sovereignty has begun to face its greatest challenge. The U.S. Supreme Court, in numerous decisions, has begun to whittle away the rules of judicial interpretation followed by the courts that has long served as the mainstay of limiting intrusion in Indian sovereignty. The current practice by American jurisprudence disregards the long-established principle that treaties and laws have been read in favor of tribes. (Editorial, Indian Country Today, 2001, p. A4)

Former Tribal Chairman Tex Hall, a strong and vocal advocate of tribal sovereignty, has stated… “We need strong leadership to make sure our rights, our trust assets and our trust lands are always protected and to see that our sovereignty is protected and enhanced. Our Tribal membership demands this, and our Treaties demand this.” (Chairman Hall, MHA Times, November 23, 2001)

Governance

While all of the tribal nations in North Dakota, in the mid-to-late 1930s to 1950s, reorganized their traditional forms of governance in some fashion after the Indian Reorganization Act of 1934, it was only the Three Affiliated Tribes to formally adopt the Indian Reorganization Act’s governmental structure.

A critical issue as the Three Affiliated Tribes for the millennium is whether the governing document by which the tribal government is organized and functions is adequate to meet the needs of this era. The Three Affiliated Tribes is governed by a constitution devised by 1934 standards. The Tribes’ Constitution is centrally focused, with no checks and balances.

Tribal Courts

Traditionally, law, order, and justice in Indian societies were handled in a variety of ways and were often matched to the lifestyles and cultures of the tribes themselves. Many of these ways were lost, almost completely in some instances, during the process of decimation by diseases, physical displacement, subsequent generations of reservation life, and exposure to white society. (Brackel, 1978, p. 10)

In the late 1800s, the Bureau of Indian Affairs created the Courts of Indian Offenses. These gave way to increased delegation of authority to the tribes themselves under the creation of the Indian Reorganization Act. The tribal court systems, arising out of this system, were essentially white American creations. Because of the guardianship nature of the federal government over tribal nations, tribes emanating from early federal court cases, created a quasi-sovereign status of tribes that allowed the federal government to restrict the judicial powers of tribes. Two major pieces of legislation continued federal jurisdiction over tribes. The Major Crimes Act of 1885 specified that the seven major crimes, later expanded to 13, would fall within the jurisdiction of federal courts if committed by an Indian in Indian country. The 1968 Indian Civil Rights Act cemented the limits to be place upon, and the principles to be followed by tribes. The provisions of the Act provided that, (1) no tribe shall imprison a convicted offender in excess of six months or exact a fine of over $500, and (2) habeas corpus (a law that releases a party from unlawful restraint) is available to any Indian who wants to test (in federal courts) the legality of his detention by a tribe.

Since the creation of tribal courts, tribal governments have struggled with a variety of conceptual and developmental issues. The increase and impact of social problems on tribal societies compound the complexity of the problem. These relatively new tribal court systems have not had the luxury to rethink and reinvent themselves through the use of traditional forms of jurisprudence.

As the complexity and sheer numbers of problems that tribal courts are impacted, the Three Affiliated Tribes deals with the issue of whether its tribal courts have the capability to address the increasing rate and degree of offenses. Out-dated codes and ordinances that exist are not sufficient, in current form, to correct the rate and degree of criminal offenses.

Transportation

In 1986, representatives of the Three Affiliated Tribes and the Standing Rock Sioux Tribe formed a “Joint Tribal Advisory Committee” known as JTAC. This committee developed a report on the impact of the Garrison Dam on their respective reservations. The impact of the construction of the Garrison Dam created some long-term and systemic transportation barriers for the Three Affiliated Tribes. The following excerpt from the May 23, 1986 JTAC Final Report summarizes the continuing transportation concerns of the Three Affiliated Tribes:

Prior to the construction of the Garrison Dam and the subsequent flooding of the reservations bottomland, most of the Fort Berthold Reservation population resided in the bottomland with relatively close access to the existing road system. Most of the Fort Berthold population was relocated to home sites on their existing upland allotments, often located long distances from the new highway system. These allotments were forced upon the allotted by the Bureau of Indian Affairs 30 years earlier. Little thought was given to future transportation needs.

A study initiated by the Tribal Business Council’s transportation committee and the Bureau of Indian Affairs indicated that 269 off-highway/home site access roads need some degree of rebuilding or new construction. The current state of the off-highway home site access roads arises from cross country trails to semi-finished roadways. The lengths of these access roads range from one to three miles. Impacts caused by this lack of adequate off-highway and home site access roads include:

  1. Cost for the maintenance, repair, and replacement of school buses are subtracted from funds for direct education service.
  2. Buses cannot travel on the access roads in severe weather, resulting in increased absenteeism rates and/or additional expense for low-income families to transport children to school.
  3. Costs for the maintenance, repairs, and replacement of personal vehicles increase and are debilitating for low-income families.
  4. Seeking employment opportunities or maintaining continual employment is difficult, and
  5. Delivery of Tribal government and other agency related services (health, medical and emergency services) are affected, at times requiring 4-wheel drive vehicles.

The federal government did not finish the Garrison Dam relocation process. Today, the Three Affiliated Tribes deal with a transit system that is inadequate to meet the existing transportation needs of the reservation.

At the federal level, one of the most zealously guarded functions of the Bureau of Indian Affairs has been the tribal roads program. After several years of cutbacks, the staffing levels remain essentially the same.

The Indian Reservation Roads Program, or IRR, has been funded since 1991 under the Intermodal Surface Transportation Efficiency Act of 1991. (ISTEA, P.L. 102–240) This legislation, reauthorized in 1999, has many competing interests for distribution of highway funds for rural and urban states. Few, if any, of the particular transportation bills are charitable to the IRR program or to other tribal needs, such as bridges, maintenance, traffic safety programs, scenic highway programs, or other programs.

Designation of assistance for tribal transportation is hindered by the lack of specificity for Indian tribes in various reauthorization bills. Tribal Nations struggle with addressing adequacy in transportation let alone having the ability to provide for future and aesthetic transportation needs, and this remains a continual concern for the Three Affiliated Tribes.

In 2001, through cooperative efforts of the Mandan, Hidatsa, and Arikara Nations and the North Dakota Congressional delegation, funds were secured from Congress to construct a new bridge across the Missouri River. This new structure is designed to meet many of the transportation needs of the northwest region of North Dakota. The Three Affiliated Tribes entered into an agreement with the North Dakota Department of Transportation for the replacement of the historic Four Bears Bridge and the design and construction of a new structure. The new Four Bears bridge near New Town was completed in 2005. The passing of the old Four Bears Bridge serves as a poignant reminder of a turbulent time in the history of the Three Tribes that is closely tied to the minds and hearts of the Mandan, Hidatsa, and Arikara people.

Jurisdiction

Tribes are faced with issues challenging their jurisdictional rights to enforce statutory and regulatory environmental requirements. In particular, the Three Affiliated Tribes is considered land-rich—in that it has a large land base with abundant natural resources, and the responsibility for the maintenance of the environment within the reservation. Part of the concern is generated by the placement of a federally created dam and a power generating facility, as well as access to lands under control of the Corps of Engineers. The other part stems from the jurisdictional issues over the land taken in the 1910 Homestead Act, which has been determined to be lands reserved as a part of the original boundaries of the reservation created by the Fort Laramie Treaty of 1851.

The control of environmental issues has been, and continues to be, a source of contention for the Three Affiliated Tribes. These areas include, but are not limited to, water use and disposal, water distribution systems, access to and use of shoreline and water, preferential rights to power for domestic and municipal purposes, farm and range management, oil and gas development, coal and other mineral development, pesticide control, road maintenance, and infrastructure including bridge repair and replacement.

Many of the jurisdictional issues regarding the environment have been either litigated or negotiated or collaborated with the state and federal government. The continued conflict arises as to whether or not full faith and credit is afforded to tribes to retain jurisdiction over their own lands.

Water Use

Fort Berthold Reservation Water Tower

Water is a precious resource to the Fort Berthold Reservation and all of western North Dakota. (Photo by Neil Howe)

The Supreme Court, through various decisions, has determined through “aboriginal title” to land and water certain reserved “Winters doctrine” water rights for both present and future uses to water. Those tribes, whose lands are situated on and bounded by various lakes, rivers, or major aquifers, have “reserved water rights.” Several tribal nations in more arid states such as Montana, Wyoming, and more in the Southwest have commenced litigation to “quantify” their water rights. Several North Dakota tribes, including the Three Affiliated Tribes, have been involved in litigation over and/or Missouri River, Devils Lake, and major aquifers in the state.

The issue is whether tribes will, in order to retain their inherent water rights, be forced to pursue litigation or undertake negotiations on the water rights issue. Experience with the federal government has shown that very often tribes have not been active participants in all facets in the decisions that determine the use of their natural resources.

Historical experience, and the constant political urging by tribal nations, has impacted, in some measure, upon the federal government, to set national policy for recognition of tribal sovereignty. More recently efforts, through the cooperation between the state of North Dakota and tribal nations’ issues, are being negotiated through agreement.

With water as a precious resource, tribes have urged cooperation with the state to maximize funding for badly needed water projects. Projected funding for the Three Tribes under the Dakota Water Resources Act (DWRA) represents one-third of the total amount authorized under this proposed legislation. Appropriations for the Act started in 2002.

Social Issues

Employment

In August of 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193). This legislation ended the Aid for Families with Dependent Children (AFDC) and replaced it with a five-year maximum benefit program known as Temporary Assistance for Needy Families (TANF).

For Indian Tribes, the new law allows each tribe to establish its own TANF program, subject to the approval of the Secretary of Health and Human Services, but only funded the program with the 70 percent federal share of the AFDC case load in the Tribe’s selected service area for 1994. States are not obligated to provide the remaining 30 percent share that states required to contribute under the AFDC years.

The concern is whether application of Welfare Reform Legislation will ease social concerns of the Three Affiliated Tribes or simply add to the impoverished conditions existing on the reservation. The Act intends to place welfare recipients on jobs within a five-year period of the decree. The concern, however, is that no immediate focus has been given to the creation of jobs in which the welfare recipients may be placed in order to support his/her family. Secondly, limited resources hinder tribes wishing to design and operate their own TANF programs, and provides little or no technical and fiscal support for the operation their programs. Current legislation and policy also puts tribal nations in direct conflict with the states for resources and case load management.

The impact of the welfare reform law on Indian tribes is as yet unknown. It should be noted that in 2001 Indian persons comprised approximately 53 percent of the welfare case load in North Dakota. The need for collaboration is critical in the areas of job creation, job training, and coordination of social services. Of utmost concern is what happens after five years in a rural area where economic development is nearly non-existent?

Health Care

Prior to construction of the Garrison Dam, a U.S. Public Health Service Hospital was located at Elbowoods in the center of the reservation. In a one-year period between June 1, 1947 and May 31, 1948, 460 patients were admitted to the hospital and 3,921 were treated as outpatients. The hospital, like the rest of Elbowoods, was flooded after Garrison Dam was completed.

In the following years, the Corps of Engineers promised to construct a new hospital, but the Bureau of Indian Affairs recommended hospital care in cities and towns adjacent to the Three Tribes reservation. The recommendation was based on an analysis of road facilities and vehicle ownership of Tribal members, believing that traveling would be easier on the tribal population.

In 1979 a study was conducted to investigate the feasibility of a hospital, extended and ambulatory care services for the reservation. It was determined at that time to be a credible and feasible venture.

Currently the Indian Health Service operates an ambulatory health center facility on the Fort Berthold Reservation. The main health center, Minne-Tohe, is located at Four Bears. Three field satellite clinics are operated at White Shield, Mandaree, and Twin Buttes.

Due to the geographical makeup of the reservation, Lake Sakakawea physically separates all four facilities from each other. The Minne-Tohe facility is staffed with two physicians, a nurse practitioner, support staff, and a community health nurse. Each of the satellite clinics has the services of a medical assistant.

Since that time, emergent health issues, (Indian Health Service data shows that Fort Berthold had the second highest infant mortality rate in the Aberdeen Area in 1981 and 1982) access to more immediate critical health care, has again brought to the forefront the need for building a reservation-based hospital. (JTAC Report, p. 20)

In 2008, design plans were announced for a new $20 million health-care facility for the Three Affiliated Tribes on the Fort Berthold Reservation. The new health facility will be built on 120-acres that the tribe owns, north of Fort Berthold Community College in New Town. The new health-care facility will replace the existing Minne-Tohe Health Center west of New Town. The Minne-Tohe, which means “Blue Water,” is the main medical facility for the Three Affiliated Tribes on Fort Berthold. It was built in the 1960s as an out-patient clinic, operating five days a week.

The name of the new facility, Elbowoods Memorial Health Facility, is from the community of Elbowoods, which had a hospital with the same name. Elbowoods, which was flooded when Garrison Dam was built, was the headquarters for all of the Indian agency’s programs. The hospital closed but a clinic operated there until it was moved to New Town in the 1950s. The clinic operated in New Town in a small building, then moved to the Bureau of Indian Affairs Administration Building before the Minne-Tohe building was built.

The entire health-care facility will be 43,000-square-feet, which is six times larger than the present Minne-Tohe Health Center. Some programs that do not exist now in the Minne-Tohe center will be provided in the new facility, including eye care and audiology. (Minot Daily News, November 11, 2008)

Education

Prior to the construction of the Garrison Dam, the student population of the Fort Berthold Reservation numbered 861 and was divided among seven day-schools and one high school with facilities located at Elbowoods. Some tribal children were educated off reservation in Bureau of Indian Affairs boarding schools or church-administered educational facilities.

The taking act altered the shape of Indian education on Fort Berthold. Children could no longer be educated in Bureau of Indian Affairs operated schools or in a reservation-wide high school. This forced dispersion of the school population and saw the development of three new elementary and high school facilities being built at White Shield, Mandaree, and Twin Buttes. Cooperative agreements were signed by the Bureau of Indian Affairs with these three public school districts to enable Indian students to be served by those facilities. During the 2008-2009 school year, these facilities served 352 Three Affiliated Tribes children. In the 2008–2009 school year, Three Tribes’ children comprised approximately 91 percent of the 718 children enrolled in the New Town Public School system.

The total Three Affiliated Tribes school children enrolled in the 2008-2009 school year is approximately 1,245.

Three Affiliated Tribes children enrolled in the following counties:

  • McKenzie County—220
  • McLean County—159
  • Mercer County—31
  • Mountrail County—835

Currently, the three facilities built at Mandaree, Twin Buttes, and White Shield are old facilities. Across the state of North Dakota, counties containing Indian populations were the only counties to show gains in population. The issue of utmost concern to the Three Affiliated Tribes is whether or not the existing facilities will be able to house student enrollment and meet the student needs, as more funding is required for newer, larger school facilities.

Economic Development

Oil and Gas

As tribes across the country accumulate capital because of Indian gaming, non-gaming economic development is receiving more attention. Resource-rich tribes, those that have substantial minerals resources and have chosen to explore and develop their mineral resources, have had approximately 20 years of experience. For example, tribes in the Anadarko Basin in Oklahoma have had considerable more experience with oil and gas exploration, than do the Tribal Nations in North Dakota. Similarly, tribes in Montana, Wyoming, and New Mexico have dealt with coal and other precious metal mining industries.

Oil Rig

The MHA Nation has within it a large amount of untapped energy resources. This oil rig in Mountrail County illustrates the importance of this resource to the area. (Photo by Neil Howe)

In North Dakota, while there have been several ventures in oil and gas exploration on Indian lands, more recently, tribes have pursued mineral-resource development as a form of economic development.

Most recently, the Three Affiliated Tribes examined various opportunities for a joint venture with an oil and gas company. While faced with numerous jurisdictional issues, the Three Tribes is concerned with such questions of whether or not only one company should lease tribal land and Indian land for extended periods of time, and whether this could affect resources that are available. As tribes struggle with mineral exploration, the need for environmental protection prompts the need for the implementation of stringent regulations.

The Three Affiliated Tribes have almost 600,000 acres of land in the Fort Berthold Reservation in North Dakota open for oil and gas exploration. The reservation lies close to the Nesson Anticline, a large oil producing structure in the southern Williston Basin. The oil recovered from the Fort Berthold region will be a significant benefit to the Three Affiliated Tribes. It is possible that millions of barrels of oil lie beneath reservation lands.

Energy Development

The most recent emphasis on the need to develop new sources of energy resources has provided tribal nations the opportunity to consider the development of untapped natural energy resources.

The MHA Nation has within it a large amount of untapped energy resources, including coal and oil. Under consideration is the potential of exploration of oil and gas deposits on the reservation. The desire to create sustainable resources for the Tribes’ membership is a priority for the Mandan, Hidatsa, and Arikara.

Gaming

Economic development, derived from gaming, has provided North Dakota tribes with the opportunity to better support the tribal government infrastructure and to create a stable reservation economy. For the Three Affiliated Tribes, the Four Bears Casino at New Town, Twin Buttes Homes at Twin Buttes, and Mandaree Electronics at Mandaree have boosted employment in the local reservation communities. In addition, federal agencies and schools offer employment on the reservation.

With an increasing stability of the local economy, tribes are exploring a number of other mechanisms to create capital for various projects. After decades of predatory lending practices, the tribe has begun to create its own capital generation and lending programs. As greater opportunities arise, the issue of concern for the Three Affiliated Tribes is whether these will offer sufficient job opportunities or new markets that can be tapped and provide for sustainability of the tribal communities.

Tribal casinos have been looked to as the solution for the economic problems of tribal reservations. While casinos have offered some limited success, they have not eliminated poverty and associated problems on the reservation. In his address on the State of Tribal Nations to the 1997 North Dakota Legislative Assembly, Tribal Chairperson Russell Mason said:

“Despite the modest gains we have made with our casino revenues, we know that our resources cannot begin to meet the fundamental needs of our reservations for health care, law enforcement, drug and alcohol abuse prevention programs, rural water systems, housing, full employment, roads, and a host of other long pent up needs. These are needs that were built up over a long period of time, and a lot of effort from the federal government, the state, our local communities, and our tribal governments are going to be needed to meet these needs.”