By Lana Marcussen
With the recent U. S. Supreme Court decision in Alaska v. Native Village of Venetie, land status has become the most important issue in determining whether Indian sovereignty effects the separation of powers between the national and state governments known as “federalism.” Federalism was supposed to protect the people’s rights from being usurped by government by guaranteeing that each government would be accountable to the people for the powers exercised within their jurisdiction. All human rights which include all civil and constitutional rights, originated from rights won over land use. Land status effects civil rights more than any other factor because it determines which sovereign has jurisdiction and which rights are accorded to a person under that jurisdiction. Indian tribes assert that while acting within their sovereign jurisdictions they are not required to respect any constitutional rights. This is the reason Indian tribes claim that they have complete “sovereign immunity” because they cannot be held accountable even in court. Therefore, any lands that are placed under the sovereign jurisdiction of an Indian tribe withdraws the constitutional rights which were attached to the lands while they were considered under state or federal jurisdiction. That is why placing lands in “trust status” has become such a contested issue. “Trust status” according to the United States Department of Justice (USDOJ), withdraws the lands from the jurisdiction of the state and places those same lands under the jurisdiction of the Indian tribe.
Under the public land laws like the Homestead Acts, disposal of the territorial lands was done. Some lands were withdrawn or reserved, actually set aside, to prevent them from becoming privatized. These withdrawal orders were all issued under the authority of Congress, which determined which constitutional rights would apply in that territory. For Congress to be accountable under the Constitution, this power over territorial lands cannot be delegated to another branch of government or to any other sovereign entity. This is why the “trust status” debate has become so heated, the USDOJ claims that Congress is not acting under its own authority in placing non-federal lands into trust but the “inherent authority” of the Indian tribes. This position makes the national government unaccountable to the people as a whole for these land use designations for the Indians. It literally changes the obligation of the national government from protecting the rights of all, to only protecting the rights of the Indian tribes. The USDOJ is actually arguing that Indian tribes are coequal governments to states- -smashing federalism.
The Village of Venetie unanimous decision disagreed finding that Indian lands are under federal jurisdiction because there must be a federal set aside of land with federal superintendence. This decision finds only two types of jurisdiction: state or federal. It is undeniably a pro-federalism opinion. If the U. S. Supreme Court expands on this view it will affect the definition of “trust status” as well. The Supreme Court already has a fully briefed and argued case in front of it which will be decided by the end of June 1998 which confronts the “trust” problems. This is the Leech Lake Band of Chippewa v. Cass County case. It is unlikely that “Indian sovereignty” with complete sovereign immunity will survive. Most probably, the Congress will be accountable for the actions of the Indian tribes unless the states have expressly consented to giving away their sovereignty. In other words, the Indian tribes are acting under federal jurisdiction on federal lands under federal supervision. Inherent tribal sovereignty is going to be stringently limited. If a state has purported to delegate or share power with an Indian tribe in a way that makes the state government unaccountable, it will be liable for that law, agreement, or compact under the Civil Rights Act for racial discrimination. Indian sovereignty as argued by USDOJ is going to die in a forceful and potentially painful way to the government officials who lied about the purpose of this racial discrimination. In case you believe this is going to hurt the Indian people think again. Because of this position by USDOJ, the Indian people have been unnecessarily denied constitutional rights to which they have rightfully been entitled since 1924.