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Rights are sometimes absent in Indian country

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BOULDER, Colo. – The Constitution is often given short shrift in Indian country, where it’s unlikely there will be a jury of one’s peers, a federal courthouse within a reasonable driving distance, or a grand jury convened nearby.

And when federal lands are involved, Indian religious rights may fall prey to white America’s unacknowledged fear that key resources might somehow revert back to their original owners.

These and other issues in the world of Native law were explored at a symposium at the University of Colorado Law School where attendees included tribal court judges, federal and state justices, Native American Rights Fund attorneys, Native legal scholars, and others from across the nation.

“At what point does the system become separate but unequal?” asked Troy Eid, former U.S. Attorney for Colorado, who has worked on law enforcement and cross-deputizing in Indian country.

It is 440 miles from Ute Mountain Ute tribal lands in southwestern Colorado to the nearest federal courthouse; there often are few if any Natives in the jury pools where trials are held for crimes committed elsewhere; and over a long period of time no grand jury has been convened near Indian country, he said.

Despite high crime rates, reservations have less than 50 percent of the law enforcement services provided to comparable off-reservation rural areas, he said, also citing disparities in sentencing and in the willingness of federal attorneys to prosecute offenses in Indian country.

The Tribal Law and Order Act, currently before Congress, would require at least limited reporting of cases declined for prosecution by U.S. attorneys, Eid said, so there would be some accountability to offset historically low rates of cases prosecuted in Indian country.

Land-based religious cases can pose problems, said another speaker, Judge William Fletcher, of the 9th U.S. Circuit Court of Appeals, who wrote the dissenting opinion in the court’s en banc ruling that allowed a private ski resort on federal land to use reclaimed sewage effluent for snowmaking on Arizona’s San Francisco Peaks, sacred to at least 13 tribal nations.

Under the Religious Freedom Restoration Act, the government cannot “substantially burden” the practice of Native religion unless its interference meets a “compelling” state interest; while a ski area in the desert hardly seemed a compelling state interest, the court defined the concept of “substantially burdening” so narrowly that, despite unchallenged testimony to an earlier three-judge appellate panel, it decided the only effect was on tribes’ spiritual experience.

Fletcher noted that tribal holy men pointed not only to sewage effluent used for snow-making by the resort but also to effluent from mortuaries, and said it affected the mountain as a “source of purity,” not only sacred, but “at the apex of holiness since time immemorial.”

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With the full court split 8-3, the majority saw “a government interest as to how the case had to come out,” Fletcher said.

Where the unspoken message of the law concerns “the federal government’s prerogative of use on its own land,” the protection of Indian religious practices “only goes so far,” he said.

While the Supreme Court has been sympathetic to Native interests in such areas as purification lodges in prisons, for example, it has been unsympathetic when it involves “response to some deep underlying instinct” that has to do with the use of resources, including land and game, he said.

Something about assuming a right by Indian tribes to use the land can be “profoundly threatening to the dominant white culture” in that it revisits the original forcible taking of resources from the tribes, he said.

There is “deep skepticism by some judges” as to Natives’ truthfulness about their religious practices, even to the point of accusing Indians of saying that “everything is holy,” he said, and other symposium participants noted a tendency for the courts to privilege property rights over Native religious practices.

The theme of the symposium, which was held Jan. 29 – 30, was “The Next Great Generation of American Indian Law Judges,” and one justice suggested reframing Indian Child Welfare Act issues “consistent with the values they (judges) already have so it’s not an alien concept.”

Judge William A. Thorne Jr., of the Utah Court of Appeals and former president of the National Indian Justice Center, has taught about ICWA widely and said it can be helpful to “present ICWA not just for Indian kids, but as best practice for all kids.”

Of 800,000 children in foster care in 2010, fewer than two percent will finish college, 26,000 will “age out” of foster care, and 60 percent will be homeless, in jail, or dead within two years, but active – as opposed to “reasonable” – efforts on their behalf can significantly reduce the numbers.

While kinship placement has been in disfavor among some children’s advocates because of problems within the family, “most families have black sheep,” Thorne noted, and can provide guidance about how to avoid similar problems.

Other topics included governance in modern Indian country, state authority, jurisdiction over non-Indians, and treaty, statutory, and Constitutional interpretation in federal and tribal courts. The symposium was presented by the University of Colorado Law Review, Native American Law Student Association, and United Government of Graduate Students.