By Ruben Spiedel and Jim Petik
The EPA is pushing non-members under tribal environmental jurisdiction in various places around the country. County Commissioners and a citizen’s group raise their objections to an EPA proposal in this letter.
Corson County, South Dakota
McIntosh, South Dakota 57641
January 23, 1998
Mr. Gary Carlson
EPA Region 8, Mail Code P2-W-MS
999 18th Street, Suit 500
Denver, CO 80202-2466
Dear Mr. Carlson:
Thank you for the informational meeting you held in Mclaughlin, South Dakota on Dec. 11, 1997. The Corson County Commissioners and People for Corson County are concerned about the EPA’s proposal to transfer primary jurisdiction over municipal water systems to the Standing Rock Environmental Quality Commission (SREQC). Due to the national scope of Federal Indian Policy, over 370,000 non-members on reservations and millions of others near reservations are threatened by this and other similar proposals. We have the following basic concerns about the proposal.
The right to vote in government is one of the most basic rights in our country. In Art. IV, Sect. (4) the Constitution says, “The United States shall guarantee to every State in this Union a Republican Form of Government.” A law dictionary defines a republican government as, “a government of the people; a government by representatives chosen by the people.”
The Supreme Court has said, “By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies whose legitimate acts may be said to be those of the people themselves; but while the people are thus the source of political power, their governments, national and state, have been limited by written Constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities.” The Court went on to say that governmental powers “must be exercised by representatives of the people; that the basis of representation is suffrage; that the right of suffrage must be protected and its exercise prescribed by previous law” (Duncan v. McCall 139 U.S. p. 449(1890)).
Having limited representation on the SREQC, as proposed by the Standing Rock Sioux Tribal Council (SRSTC), is helpful but doesn’t provide any real protection because the decisions of the Commission could be overruled by the tribal council. Therefore, we still object to the SRSTC proposal because it would subject non-members of the tribe to tribal jurisdiction even though we are excluded from equal participation in tribal government because of our race and ancestry.
If the tribe exercised their environmental powers under the EPA’s proposal and cited one of our non-member communities for a violation, we would be forced to either pay the fine or enter into the tribe’s court system. We object to being subject to the tribal court system because we are excluded from having any voice in the structure, rules or personnel of the tribal court. We are excluded from having a part in selecting the judge or serving on any jury that might or might not be involved. The EPA’s proposal effectively denies us access to constitutional courts and the right to a jury of our peers.
The long term experience of tribal members in the tribal system is also not encouraging for us. The present tribal governments were established after the Indian Reorganization Act of 1934. After over sixty years, Indians on reservations are still not protected by either the state or the federal constitutions. Minnesota Appeals Court Judge R. A. (Jim) Randall has clarified this problem very well in the Cohen v. Little Six legal opinion:
“It is not known to all reading this opinion that the following list of state and federal constitutional guarantees and rights are not in place for Minnesota Indians domiciled on a reservation: There is no guarantee that the Minnesota Constitution, the United States Constitution and its precious Bill of Rights will control. There are no guarantees that Civil Rights Acts, federal or state legislation against age discrimination, gender discrimination, etc. will be honored. There are no guarantees of the Veteran’s Preference Act, no civil service classification to protect tribal government employees, no guarantees of OSHA, no guarantees of the Americans with Disabilities Act (1990), no guarantees of the right to unionize, no right to Minnesota’s teacher tenure laws, no right to the benefit of federal and state “whistleblower” statutes, no guarantees against blatant nepotism, no guarantees of a fair and orderly process concerning access to reservation housing, and no freedom of the press and no freedom of speech.
“In other words, all the basic human rights we take for granted, that allow us to live in dignity with our neighbors, are not guaranteed on Indian reservations under the present version of sovereignty.”
The EPA proposal will require tribal members who live in the affected communities to be subject to tribally enforced EPA regulations without the same constitutional protections that other Americans enjoy. If this is the status of tribal members, what protection can non-members expect from tribal government when we have even fewer rights and less influence in tribal government than tribal members? Frankly, we don’t know and we doubt if anyone else does either.
Another concern is the tribe’s legal ability to discriminate against non-members. The tribe’s ability to exclude non-members from voting is only the beginning of this discrimination. Tribal law demonstrates examples of employment discrimination, land lease discrimination, and tax discrimination. The entire tribal system is based on exclusion and discrimination. Non-members are also excluded from equal access to tribal government information.
At the informational meeting it was stated that any fees or fines that may be levied (a power the SREQC will have) will be paid to the SREQC itself. In contrast, fees or fines levied by the EPA are payable to the U. S. Treasury. Paying fines to the SREQC would be like paying traffic fines to the traffic officer. The conflict of interest and incentive to levy fines are obvious.
These concerns threaten our communities with the potential of many legal problems, conflicts and financial strains. In contrast, tribal governments have more immunity from lawsuits than any other government in the country. Even if tribal actions some day prove to be totally negligent, arbitrary or unconstitutional, the tribe is completely protected from any unwanted lawsuit by the legal concept of tribal sovereign immunity.
Your proposal forces us, without our consent, to live under the jurisdiction of a government that excludes us because of our race and ancestry, subjects us to a court system that is not responsible to us, is not bound by either our state or federal constitutions, has a legal right to discriminate against us and is protected from any challenge from us by its sovereign immunity. These realities mean that you are subjecting us to a jurisdiction that is almost completely unaccountable to us. How can you pretend that we will have the equal protection of the law that we are guaranteed by the Fourteenth Amendment?
We would like you to explain simply and specifically where you are getting the authority to do these things. Is Congress mandating or allowing these actions? Where does the EPA, Congress or the Courts get the authority to violate our human rights against our will and without our consent? Most agencies of the federal government are prohibited from discriminating on the basis of race. Please send us the basis of your anti-discrimination regulations.
Chairman of the Corson County Commissioners
Jim Petik, President
People for Corson County
HC 1, Box 53A
Keldron, SD 57634
cc: North and South Dakota Congressional Delegation
South Dakota Governor William Janklow
North Dakota Governor Edward T. Schafer
South Dakota Attorney General Mark Barnett
North Dakota Attorney General Heidi Heitkemp
South Dakota State Legislators