Tribal legal minds, leaders explore plan to address threats to culture
JENKS, Oklahoma. — Muscogee (Creek) Nation District Court Judge Greg Bigler asked Greenleaf Ceremonial Ground Mekko Bill Proctor how long he expects his ground to last.
“In the last 30 years maybe, there were a lot of elders that could really speak the language,” Proctor said. “They knew all the old ways but now, they’re all gone so I don’t see it to be a long time. I think eventually, it will just die.”
The court held an informal discussion June 21 for tribal leaders and legal minds to plan the next era in Indian law.
Native American attorney and advocate Walter Echo-Hawk (Pawnee) proposed that Indian Country had gone as far as it could with the existing federal legal structure.
Echo-Hawk said progress had been made with the self-determination era under President Richard Nixon but a conflict exists with the ‘plenary power’ the government still holds over tribes.
“Because you can’t be a self-determining sovereign Nation on the one hand and being subject to the power of the government on the other, the two conditions are mutually inconsistent,” he said.
Bigler summarized plenary power as Congress’ ability to do whatever it wants regarding Native Americans.
“Congress has the absolute right to terminate a treaty, not comply with a treaty and in fact to terminate tribes so that you are no longer federally recognized and cease to exist as a people,” he said.
Echo-Hawk said the Supreme Court decisions that established this make it impossible to argue a case based on morality.
“The court expressly looks away from these principals and instead drew upon these features of the laws of colonialism that were in effect in the 1800s…You can’t find any court decisions that have a judicial discussion about human rights for Native Americans,” he said.
The strategy to address this proposed by Bigler, Echo-Hawk and other legal minds at the meeting was to get language from U.N. Declaration on the Rights of Indigenous Peoples recognized in the federal system.
“It’s a very comprehensive legal framework that addresses all of our Native American aspirations,” Echo-Hawk said.
The document was born out of a process started by Native American advocate and Muscogee (Creek) citizen Phillip Deere when he spoke at a 1977 U.N. meeting in Geneva, Switzerland and addresses issues such as:
The rights to self-government, land, traditions, spirituality, language, economic and social assistance development, protection of the environment, youth, elders and the disabled as well as to be consulted on any laws affecting their Nations.
Heather Whiteman Runs Him, a staff attorney at the Native American Rights Fund and representative at the U.N., said plenary power is troubling under the current political climate.
“There’s a lot of room for tremendous damage to be done and just this spring, coming under this Trump Administration where he’s repeated threats to do really drastic things to the federal system, such as BIA, Department of Interior, just the Antiquities Act and our national monuments that are protecting some of our sacred sites,” she said.
Several attendees made comments about specific problems their Nations have had regarding areas addressed in UNDRIP.
Sac and Fox Nation Principal Chief Kay Rhodes said the right to have tribal courts is not enough if their laws are not observed.
“We cannot continue to depend on the federal government,” she said. “We need to be able to identify ourselves as sovereign Nations.”
Bigler expanded on an account by Holuby Ceremonial Ground Mekko Chebon Kernell of when ground members were gathering materials for their ceremonies and were met with gunfire.
“We were on the easements on Highway 66 towards Bristow down in that willow, which is public access and guys came out with their shotguns and fired up in the air at our young men,” he said.
He mentioned times where the grounds were on private property and members showed up to do their ceremonies to find the gates locked due to disputes about the land.
He also said state burn bans complicate these ceremonies.
“We can get a permit from the state usually to have that fire but our Mekkos are not going to go ask anybody’s damn permission to light that fire,” Bigler said. “So if the fire marshals came, we have a problem.”
Sac and Fox Nation Committee Member Robert Williamson recalled the dispute over the remains of their tribal citizen, famous Native American athlete Jim Thorpe.
It began when Thorpe’s widow had his body taken to a town in Pennsylvania that changed its name to Jim Thorpe under an agreement with her to establish a public attraction.
“He was laying in one of our Indian houses ready to be taken care of, his last rites in Shawnee, Oklahoma outside of town,” Williamson said. “A car pulled up, marched in, pulled him and we never saw him again to this day.”
Williamson said the loss of their culture was predicted when the tribe was moved to Oklahoma.
“And we’re going to eventually marry the locals and your blood will thin out,” he said. “And when your blood thins out, you’re going to lose your tradition.”
He said Proctor’s statement about number of first language speakers at MCN is something to be envied at his tribe.
“We can count on our hand over here, our fluent people. Luckily, my mother is one of them and she’s 89 today,” he said. “She lost her sister a little over a year ago. There went her speaking partner. Now she sets there, like we say lonely, for her relatives but not only that but to speak her language.”
Echo-Hawk said an example of plenary power is when Sen. Jim Inhofe (OK) introduced a last minute rider to a 2005 federal transportation bill, which made tribes consult with the state before trying to regulate water or air quality.
“So he tacks on this rider without any notice, without any hearing and the next day, our powers over clean waters in our tribal jurisdiction in Oklahoma was chucked away,” he said.
Echo-Hawk said the protective parts of this doctrine established through court rulings could be worked with in a positive manner.
“So I would argue, lets keep the plenary power of Congress to do good but not to prey upon or destroy the Indian Nations under the protectorate doctrine,” he said.
To do this, he proposed a legal project aimed at establishing the goals of UNDRIP that modeled litigation efforts of the NAACP.
He said this effort challenged their legal framework of separate-but-equal solidified by Plessy v. Ferguson in 1896 by overturning it in the 1954 Brown v. Board of Education ruling.
“They came to a crossroads in their strategy, which is ‘well we’ve prevailed in our legal theory, and now we can sue every single school in the country and that will take us the next 1000 years to do it or we can engage in a frontal assault on the separate-but-equal doctrine itself’ and that’s what they did in 1950,” Echo-Hawk said.
He said the project has begun in Indian Country led by NARF and the University of Colorado School of Law in Boulder, Colorado.
Echo-Hawk said the Akerman Law Firm based in Miami is planning a fundraiser in the fall to generate seed money and called for financial and other support from tribes.
He said a good start would be to adopt UNDRIP into tribal law like at MCN.
“We can’t go out and advocate for the United States government to pass laws to implement it when we haven’t in our own back yard,” Echo-Hawk said.
MCN Assistant Attorney General and Cherokee Nation citizen Angel Smith said doing this enables tribes to use the language in state courts.
“I’ve gotten kids home to reservation utilizing the Indian Child Welfare Act and for the tribes that have adopted at least a part or portions of UNDRIP, you can take that into state courts through federal law and advocate tribal law in a state court and get the kids home,” she said.
Echo-Hawk said tribal law scholars could also begin legal research and getting involved.
“Who is going to be our legal champions to be like Thurgood Marshall and walk into court for Brown v. Board of Education and overturn Plessy v. Ferguson?” he said.
He said Canada has adopted UNDRIP and this has been instrumental for tribes there.
“The First Nations of Canada are already in the Canadian courts, the provincial courts, federal courts all the way up and down litigating under this declaration and their First Nations issues,” Echo-Hawk said.
Former Osage Nation Principal Chief Jim Gray said he has a background in media and leadership during federal litigation and advised the group not to ignore the power of public relations.
He brought up a case where he said the opposing counsel rallied interested parties against them, which impacted the ruling.
“They all said the sky was falling; the Osages are going to print their own money; they’re going to build their own mint; they’re going to build toll booths to the doors of Osage County if they get their way here, we cannot let that happen,” he said. “I was just flabbergasted when I realized that the judge had acted and ruled and was influenced by all that crazy stuff.”
Gray said culture is not an easy topic to address with the media.
“You’re not going to sound-bite it to ever get people to appreciate it,” he said “It’s always been a challenge to find, how much do we let them in on what we do in order to have them value why we think it’s important.”
He said this is inevitable however.
“Eventually, some one is going to throw a camera and microphone in your face and ask, ‘why are you doing this?’ At some point before you speak, you are going to have to think of all these voices in the room and all the different perspectives of the elders and the cultural leaders of all the tribes,” Gray said.
Acknowledging the sensitivity of his own grounds, Bigler shared a tradition, which involves going over the hill at exactly noon.
“When we go over that hill at straight up noon, the sun looks down on us to see if we’re still going over that hill,” he said. “If they don’t see any Yuchis going over that hill, it means that there are no more Yuchis and the sun will set back in the east.”