Return of sacred Black Hills: 'It's a question of when' and 'no surrender of sovereignty'

Mark Trahant

Indian Country Today's newscast for July 20 Conversations with Nick Tilsen and Mary Kathryn Nagle

Mark Trahant

Indian Country Today

The newscast looks at students returning to school during a pandemic and the need to reauthorize the Special Diabetes Program for Indians. The program's guests are Nick Tilsen, president and CEO of the NDN Collective, and attorney Mary Kathryn Nagle.

Some of the comments from Nick Tilsen:
"Incarceration rates of Indigenous people in South Dakota are 10 times the incarceration rates of white folks in South Dakota. In fact, there's more people being incarcerated and Indigenous people being incarcerated per capita, compared to white people in South Dakota than any other place in America. And then you have that over layered on top of this historic struggle over land and sovereignty, this reality that we have fought for the treaties of 1851 and 1868 to be upheld over time and have taken those treaties all the way to the Supreme Court and the Supreme Court ruled in our favor yet we don't see land being returned to Indigenous people. 

Layer that back on top of, you know, the fact that they take a sacred place like Mount Rushmore, you know, like the sacred ... that's the center of so much of our culture and our ceremony and to have a member of the Klu Klux Klan carve Mount Rushmore in these faces of these colonizers who committed genocide and acts of aggression and violence towards Indigenous people."

"These are the things that we deal with on a daily here. And this is why so much of what's happening in this country in a conversation about dismantling white supremacy and working towards racial equity and racial justice in this country is fundamentally important because it is directly tied to the issues and the struggles that we face today that are directly impacting the lives of so many of our people."

"The concerning thing about it is they're not just doing that based on the fact that Indigenous people are organizing and protesting, they're doing it across several movements. If you look at the rise of anti-protest bills and critical infrastructure bills to protect critical infrastructure, like roads, like pipeline easements, like ways for people to be able to express protest and civil disobedience - they directly targeted the Indigenous people's movement and the movement for Black lives because of the organizing that was taking place there and because the power of the people was being organized."

"We're heading more and more to a militarized zone. The fact that we protested on our own land a few weeks ago, in a sacred space and the fact that the National Guard, the highway patrol, the County sheriff and law enforcements were deployed there, you know, within minutes is an attest to this direction that the government is going in, in its relationship to Indigenous people and for Black lives and into the people's power movements that are being built in this country."

"I think that the time of us, especially the public lands in the Black Hills returning to Lakota and Indigenous control. It's no longer a question of if it's a question of when. Part of us you know, here at the NDN Collective and in this land back movement that we're continuing to build, the work that we're doing around building a land back movement here in the 21st century is this concept and idea that it's actually not just simply about physical returning of land back to Indigenous people but is de-colonial work about actually deconstructing the system of white supremacy and the systematic racism that keep perpetual violence and injustice happening in our community."

A few comments from Mary Kathryn Nagle:

MK Nagle

"So in McGirt, the Muskogee Creek Nation, and really all tribal nations, won a historic victory in that the Supreme Court, despite Oklahoma's arguments that the court should judicially disestablish the Creek Nation's reservation, the Supreme Court applied the law as written as it has for the last hundreds of years and said there was a reservation created by a treaty. Congress has never disestablished it. The reservation still exists. And this has been an incredible victory of course, for Creek Nation and Creek Nation citizens but I think also for all of us who feel like finally, we're watching, we're witnessing a United States Supreme Court that is applying the law as it applies to tribal nations."
"There was an agreement announced. I think for a lot of us who are citizens of one of the five tribes, which is the Seminole Nation, the Muskogee Creek Nation, Cherokee Nation, Chickasaw Nation and Choctaw Nation in Oklahoma, this, agreement in principle as the Attorney General Mike Hunter calls it, was quite a surprise. We had not heard of this nor had we read it before it was released Thursday morning. And so I think a lot of us from the five tribes in Oklahoma are still responding and reeling in the aftermath of this being released."

"To talk about a couple of the implications, we won this huge victory in the Supreme court, right? The last thing we want to see any of our tribal leaders do is acquiesce or to some sort of voluntary surrender of our sovereignty. And some of the specific points in that two page PDF are concerning. For instance, in that document, Attorney General Mike Hunter states that he and the five tribes will tell Congress, codify the Montana civil statute. "

"Now, what does that mean? The Supreme Court in 1981 in a case called Montana vs United States limited tribal civil jurisdiction to cases where in practical effect, for a tribe to exercise civil jurisdiction over a non-Indian the tribe has to show that that non-Indian consented to the tribal jurisdiction through a contract or some other consensual relationship."

"This has proven to be somewhat disastrous for tribal courts, for instance, trying to issue tribal protective orders, even though in 2013, Congress passed the Violence Against Women Act and made very clear in that act that tribal courts have the authority, civil jurisdiction, to issue protective orders over non-Indian abusers regardless of the lack of any contract signed with the tribe, non-Indian abusers - I can tell you this as an advocate who tries to enforce tribal court protective orders in state courts all the time - state court judges get very confused. And when we have non-Indian abusers say, 'Well, the Supreme Court said that I have to have a contract with the tribe or a consensual relationship before they can exercise jurisdiction over me. I don't consent to this, this tribal court protective order is invalid.' That's what we're up against as advocates for Native women every day."

"What we need is not legislation from Congress but we need collaboration - intergovernmental agreements. The jurisdiction is there, the authority of the tribal governments there, not fully, some of it's been taken away by the Supreme Court, but the state does have authority in some instances and so does the US attorney's office, right? What we need are these three governments to come down, sit down and talk, how do we collaborate? How do we enter into cross deputization agreements? How do we collaborate on investigations? It's not always obvious immediately who has jurisdiction, right? It can depend on the identity of the victim, the identity of the perpetrator, whether the crime was ultimately committed on reservation off-reservation. And these are issues. Let's be clear that affect Native communities in Montana on the border towns of reservations in Alaska, in Oklahoma, in South Dakota, this is not unique to Oklahoma."

"We've watched tribal leaders at tribes like Gila River enter into these sorts of intergovernmental agreements with the federal government and the state government and local county municipalities to ensure that anytime a crime is committed any question about jurisdiction does not impede an arrest, detainment of a suspect and an investigation. And that's what we need here. And I know that Creek Nation is actively engaged, they already have lots of intergovernmental agreements on the books and I'm hoping the other five tribes, many of them have engaged in those in the past and that they will continue to do so, because I think that's the real key to ensuring public safety on the five tribes reservations in Oklahoma."

Mark Trahant anchor's Indian Country Today this week. Also on the broadcast is Washington editor Jourdan Bennett-Begaye.

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