"In 1492, Columbus sailed the ocean blue," the maxim goes.
It's something recited at one time or another by almost every child in America's public school system.But ask fourth-grader Johnny what Columbus was famous for and he'll likely respond: "He discovered America."
The predictable response ignores a fundamental reality: Columbus actually discovered that American Indians - millions of them - were already living comfortably in North and South America, many in civilizations rivaling anything in Europe at the time. The response also epitomizes five centuries of what is popularly called Eurocentrism - the passive and forced replacement of native culture, languages and religions with the languages, religions and historical perspective of European conquerors.
"We are all Americans, but we are not you," reminds Clifford Duncan, a spiritual and political leader of the Uintah-Ouray Utes in eastern Utah. Duncan refers to the fact that his ancestors did not come over on the Mayflower. Nor were they Mormon pioneers braving hardship to build a kingdom in the desert.
He refers instead to the fact that American Indian culture, regardless of tribal affiliation, is rooted deeply in tradition - "rituals and ceremonies that extend from our origins hundreds and hundreds of years ago."
Duncan is among a growing number of American Indians who are trying to reclaim tribal rights and, more importantly, a tribal heritage that has been nearly eradicated by successive generations of less-than-sympathetic white governments and mis-sion-aries.
For much of the past two decades, the Uintah-Ouray Utes and others have taken to the federal courts to assert the sovereign rights of all American Indians.
What is `Indian sovereignty'?
"Sovereignty applies to almost anything," Duncan says. "It's a way of life. We are talking about the environment, the land, the wildlife." It also deals with issues as diverse as the adoption of Indian children, the taxation of businesses operating on tribal lands, gambling on reservations and the authorization of nuclear waste dumps on Indian lands.
American Indians are challenging state and federal governments on issues as fundamental as freedom to practice their own religions, to determine their own economic destiny, and to maintain their unique legal status as American Indians in a white-man's world that has typically held little esteem for traditional Indian ways.
Later this year, the U.S. Supreme Court will hear arguments in a Utah case in which Utes have challenged the state's arrest and conviction of a Ute prosecuted by Duchesne County officials for a crime that occurred within historical boundaries of the Ute nation - but boundaries not unilaterally accepted by the state. The landmark case sets the political stage for a cornucopia of tribal sovereignty issues with national implications.
Awareness or opposition?
More than ever, Indian sovereignty has become a trendy political issue among whites. Often referred to as the "Dances With Wolves syndrome," the exploitation of the American Indian by EuroAmericans has been chronicled in scores of revisionist New World histories and popular movies.
"I sense a growing awareness (by whites)," says Marilyn Ellingson, an activist working on behalf of Utah Navajos. "There is more sensitivity to ethnic issues across the board, and recognition of Indian sovereignty is part of all that."
As Ellingson succinctly puts it, "Their (Indians) time has finally come." But are rank-and-file Utahns willing to acknowledge therights of American Indians to determine their own political, economic and cultural future?
Not according to a poll conducted by Dan Jones and Associates for the Deseret News and KSL Television. (See chart on A14)
In a nutshell, Utahns are adamantly opposed to two of the three highest-profile sovereignty issues facing other states. Consider:
- Many Indian tribes in neighboring Idaho, Colorado and Arizona have instituted various forms of gambling as a means to raise revenues for basic tribal services.
Utahns oppose any gambling on reservations. (Of note, Utahns generally oppose any gambling, as evidenced by the defeat last November - by a 60-40 margin - of a pari-mutuel gambling initiative.)
- The Skull Valley Band of Goshute Indians is flirting with the idea of whether or not to locate a federal high-level radioactive waste dump on tribal lands near Tooele, a move vehemently opposed by state officials.
Utahns oppose the idea.
- Some Indian religious ceremonies call for the use of the hallucinogenic drug peyote.
Utahns are split on this issue.
The poll, conducted March 30-31, has an error margin of plus or minus 4 percent.
A sovereign conflict
Over the past two decades, Indian sovereignty has become the impassioned battle cry of Native Americans from Florida to Alaska. Not that sovereignty is necessarily a new cry.
The U.S. government has been signing treaties with various Indian nations since the 18th century, and the U.S. Supreme Court ruled as early as the 1830s that Indians had sovereign rights.
But not until the Indian Civil Rights Act of 1968 did the government policy shift from one of federal domination to Native American self-determination. "The Indian peoples had sovereign powers before, but a lot of them did not exercise those rights adequately or aggressively," explains Alex Skibine, an Osage Indian and professor of law at the University of Utah.
"Since then, tribes have become more diligent and aggressive in asserting the powers they have always had. And that has created some conflicts with surrounding communities."
The conflict has spread to state governments and federal bureaucracies who all claim some authority or jurisdiction over Indian lands. Last year in Arizona, armed federal agents squared off against Apache Indians who claimed the sovereign right to allow gambling on their reservations.
In Nevada, sovereignty was a focal point of a nasty confrontation last March between Western Shoshone Indians in Nevada and the Bureau of Land Management over the management of wild horses claimed by the Shoshone.
While some disputes have been shrouded in violence, most of the warring these days is done with legal briefs, high-powered attorneys and carefully orchestrated media events. "It's been an evolutionary process," says Mike Quealy, who has spent much of his career with the Utah attorney general's office representing the state in Indian sovereignty matters.
"There are a lot of (sovereignty) issues coming up now, and tribes are getting more and more sophisticated in how they pursue those rights."
And as tribes become more and more aggressive, some have become more and more intransigent. "A lot of tribes are asserting sovereignty, but sometimes that nebulous concept gets in the way of finding practical solutions to real problems," Quealy says. "And that creates a contentious atmosphere, especially when the state tries to assert its own sovereignty."
Utah courts have been particularly slow to acknowledge Indian sovereignty, Indian officials complain. Two Utah Supreme Court decisions have contradicted federal court rulings acknowledging greater Ute tribal sovereignty, and recently Utah Navajos sued the state over mismanagement of trust moneys earmarked for the Utah portion of the Navajo Reservation.
Utah Navajos are still asking why the state presumptuously determined the best ways to spend millions of Navajo dollars, yet thousands of Utah Navajos still languish in poverty. An audit by the legislative auditor general determined millions of Navajo Trust Fund dollars were squandered, many by whites assigned by the state to manage the trust.
"Why were those decisions not made by the Navajo people?" questioned Andrew Tso, a member of the Navajo tribal legislature and a resident of Aneth, San Juan County. The answer, he and others believe, is overt racism:
"The state, the federal government - everyone else thinks they know what's best for Indian people. But no one believes the Navajo are capable of making those decisions."
Sovereignty presents a hornet's nest of legal problems. Courts have ruled that Indian reservations are sovereign nations, subject to their own laws and government. But they are sovereign nations within sovereign states that are themselves within the boundaries of a sovereign federal government, each with different laws and governments.
So whose sovereignty reigns supreme? Depends on who you ask. American Indian activists argue that Indians should be allowed to determine all activities on their own tribal lands. But courts have repeatedly ruled that tribal lands are also subject to federal law. And to some state laws, as well.
The result: a complicated web of legal rulings that baffles even the most seasoned Indian law attorneys. "Confusing. There's no other word to describe it," says Duchesne County Attorney Herb Gillespie.
Far more than marijuana
On the surface, it was a routine drug bust. Duchesne County deputies arrested Robert Hagen and charged him with selling marijuana from his home in Myton. Hagen pleaded guilty and was sentenced to prison. Case closed.
But the case wasn't closed. And it has become anything but routine.
Hagen, a Ute Indian, appealed his conviction on the grounds that Myton actually lies within the boundaries of the original 1861 Ute reservation, and that the state had no jurisdiction to arrest or prosecute an Indian on tribal lands. The Utah Supreme Court upheld Hagen's conviction, maintaining that Congress reduced the original reservation in 1902 and 1905 by 3 million acres, excluding towns like Myton, Duchesne and Altamont from the reservation.
However, the U.S. 10th Circuit Court of Appeals in Denver sided with Hagen, in effect giving the Uintah-Ouray Utes jurisdiction over roughly 4 million acres within the original boundaries - virtually all of Duchesne County.
The U.S. Supreme Court will hear an appeal of the case this fall in what could determine just what jurisdiction states have on Indian reservations. "The case has tremendous implications," Qualey said, "especially for the non-Indian people living there."
The Hagen case has become the embodiment of the entire Indian sovereignty issue in Utah. What authority does the state have over Indian affairs? Are reservation Indians at all subject to state laws? If not, are whites living within the exterior boundaries of reservations subject to Indian laws?
"There is concern about any authority exercised by a government in which the people have no voice," Gillespie says. "Nearly all of Duchesne County is within the (1861) reservation boundary, but the non-Indians who live here would have no say in election of the tribal government. Simply, it's government without rep-re-sen-ta-tion."
In fact, Indians represent less than 10 percent of the county's population. If the 10th Circuit Court ruling is upheld by the Supreme Court, state and tribal officials agree the tribe would likely have the authority to dictate most public policy from the issuance of business licenses to levying taxes.
Last year, tribal leaders tested those waters by proposing a ban on all alcohol sales within the restored boundaries of the reservation. The closure would have closed all taverns, prevented convenience stores from selling beer and even shut down the State Liquor Store.
Duchesne County immediately cried foul, while tribal leaders just grinned at the effectiveness of their bluff.
A cold-shoulder coexistence?
Historically, the relationship between the state and Utah's various tribal governments has been one of cautious coexistence, if not outright indifference. On occasion, disputes over Indian sovereignty have ended up in state and federal courts. More often than not, Utah Indian tribes ignore state mandates.
For example, bingo gambling is illegal in Utah. But most weeks, the Bottle Hollow Inn on the Uintah-Ouray Reservation has bingo games with a range of cash prizes. The participants? Mostly Utes, but a surprising number of whites.
Also, businesses operating on reservations only have to collect sales and gasoline taxes if they sell products to non-tribal members. But that is rarely, if ever, done. On the White Mesa Ute Reservation south of Blanding, gasoline can be purchased at the only general store there for about 20 cents a gallon cheaper than in Blanding - a reflection of the fact no state gasoline taxes are being collected. The customers? Residents of Blanding and Bluff, as well as a steady stream of tourists.
State officials say it's not worth the political fallout to pursue individual cases like bingo and gasoline sales. Instead, the state has focused most of its energies on issues like taxing oil companies who operate on reservation lands (the state succeeded) and managing wildlife on reservation lands according to state regulations (the state failed).
"I think state officials are sticking their heads in the sand," Duncan said. "They take actions without first counseling with the tribes to see how that will affect relationships."
Cooperation, not confrontation
Utah's record of cooperating with Indian tribes is by and large abysmal, tribal leaders agree. But Duncan has high praise for new Gov. Mike Leavitt, who recently met with Ute tribal leaders to pledge cooperation - not confrontation.
"I acknowledge their status as a sovereign nation," Leavitt said. "We must have a relationship of trust. Trust is not granted because someone has status as the head of a state or nation. It's granted because people learn to work together to earn each other's trust."
"Cooperation" has become the buzzword throughout the United States as state governments are coming to realize that it is less expensive to negotiate than it is to litigate. "It doesn't matter what the issue is," says Wisconsin state senator Bob Jauch, whose district has been racked by ugly disputes between Chippewa spear fishermen and non-Indian sport fishermen. "Everyone comes back to the basic need for the parties to sit down and try to work out their mutual needs and concerns; to find a system, through dialogue, to jointly and cooperatively reach some common ground."
That attitude was the premise behind a cooperative agreement signed last year between the Navajo Nation and the states of Utah, New Mexico and Arizona. In essence, the agreement says face-to-face negotiations will occur before any lawsuits are filed. The agreement helped facilitate an early settlement of a lawsuit filed by Utah against the Navajo Nation over the collection of oil royalties in the Aneth area.
Utah Utes are hoping that same attitude will characterize Leavitt's approach to the Uintah-Ouray Ute Reservation. Duncan compares it all to an unusual football game:
"We are all on the same playing field, all part of a team. Before the game, someone turns off the lights, but the game goes on. When the lights go on, the players are scattered all over the field - all because no one knew what others were doing. It's the same thing (with state-Indian relationships). It's better to play with the lights on."
*****
(Poll)
Deseret News poll
Some Utah Indian tribes are proposing several activities to raise money on their reservation. Do you favor or oppose the following kinds of activities on Indian reservations.
Gambling
Horse Lotteries Casinos
Racing
Strongly favor 22% 26% 8%
Somewhat favor 18% 18% 13%
Somewhat oppose 11% 9% 11%
Strongly oppose 43% 44% 54%
Don't know 7% 4% 5%
Do you favor or oppose the Goshute Indian tribe building a high-level nuclear waste repository on their reservation in Utah's west desert?
Strongly favor 7%
Somewhat favor 16%
Somewhat oppose 13%
Strongly oppose 52%
Don't know 11%
The hallucinogenic drug peyote has been used by Native Americans for centuries in religious ceremonies. Courts have recently ruled that such use is illegal in most cases. In your opinion, should Native Americans be allowed to legally used peyote in religious ceremonies?
Definitely should 27%
Probably should 19%
Probably should not 17%
Definitely should not 26%
Don't know 11%
Number polled: 600. Error margin: +- percent.
Conducted March 9-10, 1993. Dan Jones and Associates
Sovereignty confusion
Untangling the web surrounding Indian sovereignty is next to impossible, experts agree. In fact, there's only one hard-and-fast rule in trying to decipher it: Few, if any, rules apply.
A sampling of some of the confusion:
Criminal Justice
A crime is committed on a reservation:
1) If the perpetrator is a member of that tribe and the crime is a felony, he is prosecuted in federal court.
2) If the perpetrator is white or not a full-blooded Indian, he is prosecuted in federal court, unless the crime occurred on Indians lands currently in dispute, in which case the state of Utah may prosecute.
3) If the perpetrator is a member of that tribe and the crime is a misdemeanor, the case is tried in Indian tribal court.
4) If the perpetrator is a white and the crime is a misdemeanor, the case is pursued in federal court.
5) If the perpetrator is less than a full-blooded member of the tribe, the case may be referred to federal prosecutors or it may be handled by tribal courts.
Gambling
Federal law allows an Indian tribe to institute gambling within their reservation if:
1) The games of chance are traditional tribal games with prizes of minimal value. These are regulated by the tribe.
2) If the state in which the reservation exists allows bingo, lotto, card games and/or punch tabs, Indian tribes may institute the same games within the reservation and under tribal regulation. There is dispute on the question: If a state allows bingo, can an Indian tribe also institute lotto, card games and punch tabs?
3) If a state allows horse racing, lottery and casino-style gambling, the tribe may also institute identical games of chance. There is no agreement as to whether this kind of gaming should be regulated by a state gaming board or by the tribe. There is also dispute on the question: If a state allows horse racing, for example, does that entitle the Indian tribe to also institute casino-style gambling and lotteries on the reservation?
Taxes
As a sovereign nation, Indian tribes have the authority to impose their own taxes. And tribal residents and tribal-owned businesses are exempt from most state taxes. For example:
1) A pack of cigarettes purchased from a store in Heber City carries a hefty state tax. That same pack purchased at Bottle Hollow on the Ute reservation does not carry the tax. Unless your a non-tribal member purchasing the cigarettes on the reservation, in which case the tribe is supposed to collect the tax and send it to the state. Same holds true for gasoline taxes.
2) State property taxes are collected from non-Indian farmers in the Uintah Basin while Indian neighbors living on adjacent tribal lands do not pay state property tax. Unless the Indian neighbors own the land outright, in which case they do pay state property taxes. And non-Indian businesses operating on Indian land must also pay state property taxes.
3) Tribal members do not pay sales tax on purchases made at reservation businesses, and with proper identification are exempt from sales taxes off the reservation. In most cases.
Environment
Generally speaking, Indian tribal lands are subject to federal environmental regulations. However, what happens when tribal environmental values are different than the state or federal government?
1) The Skull Valley Band of Goshute Indians is exploring the possibility of locating a high-level nuclear waste dump on tribal lands in Tooele County. That position places the tribe in direct conflict with the state, which has reiterated there will no more hazardous waste dumps will be built in Utah. The decision will be made by federal authorities.
2) The Uintah-Ouray Utes of eastern Utah have been drafting their own ordinance to protect archaeological resources on tribal lands. That effort, however, has met with resistance from the Bureau of Land Management and Bureau of Indian Affairs, which says current federal regulations are adequate.
3) Compliance with environmental laws on tribal lands are the domain of the Bureau of Indian Affairs, though many responsibilities related to oil and gas development are delegated to the Bureau of Land Management. Tribal efforts to exert more control over environmental policy has met with resistance from federal authorities, who say they can enforce nothing more or less than existing federal law.
Religion
The oldest church in North America is probably the Native American Church, which reinforces traditional tribal beliefs through religious ceremonies. Those beliefs often place the tribe in conflict with white-man's law.
1) One such ceremony involves the use of peyote, a hallucinogenic drug that federal courts have ruled is illegal even for religious purposes. Some states aggressively prohibit Indians from using peyote in religious ceremonies, while others, including Utah, simply look the other way. No Indian has been prosecuted in Utah for ceremonial use of peyote on tribal lands.
2) Indians sentenced to state prisons have some, but not all, freedoms to practice their native religions or to wear their hair long in the traditional Indian way. Utah officials allow sweat lodges on prison property, but do not allow Indians to wear their hair long, citing security concerns.
3) Federal wildlife protection laws prohibits the use of eagle feathers in religious ceremonies, even if the eagles died of natural or accidental causes. Eagle feathers are particularly sacred items to most Native Americans.
Oil and Gas
Perhaps the most confusing of all is the tribal relationship with federal and state agencies who regulate oil and gas development.
1) The Bureau of Indian Affairs, in conjunction with the tribe, will sell leases to develop oil and gas on the reservation.
2) The individual tribe then issues the permits under tribal law to drill for oil and gas. But the Bureau of Land Management must first review the applications for compliance with federal laws.
3) The BLM then coordinates with the BIA to make sure the companies are properly bonded. The BLM then authorizes the permit to drill application.
4) Once production begins, mineral royalties are collected by the Mineral Management Service (yet another agency in the Department of Interior) who then returns the funds to the tribe by way of the BIA.
5) Oil companies must pay severance taxes to both the tribe and the state of Utah.
SOCIAL SERVICES
Cases of child abuse, adoption of Indian children and juvenile justice present a sticky problem for state officials who walk a fine line between fulfilling state mandates and complying with federal law, says Terry Twitchell, spokeswoman for the Department of Social Services.
1. Utah is the only state in the nation that contracts with an Indian tribe (Utes) whereby all Indian children accused of crimes are adjudicated in the state juvenile justice system rather than an Indian court.
2. Adoption of Indian children, once a common practice in Utah, is now difficult, if not impossible. A potential adoptee must first be offered to all members of his family, then all members of the individual's tribe, then to members of all other tribes before the child can be legally adopted by a non-Indian family. However, it is acceptable that Indian children be raised by non-Indian foster parents from birth through age 18 as long as the child is not legally adopted into that family.
3. Child protective custody was once the domain of the Ute Indian tribe, but lack of adequate facilities, training, record keeping and formal policy prompted the Bureau of Indian Affairs to order those responsibilities returned to the state. All protective custody cases, however, are adjudicated through tribal courts by judges with no formal legal training.