The Bureau of Indian Affairs has "broad authority" to deal with tribal leadership and membership matters, a federal judge ruled last month, despite little-noticed amendments to the Indian Reorganization Act that attempt to keep the agency out of internal disputes.
In March 2004, Congress passed the Native American Technical Corrections Act. The bill was shepherded through the Senate by former Sen. Ben Nighthorse Campbell (R-Colorado), who was chairman of the Senate Indian Affairs Committee. He secured unanimous consent for a bill he
described as non-controversial in nature.
But the IRA amendments he placed in the measure came only as a result of a high-profile leadership
battle within the Buena Vista Band of Me-Wuk Indians. Two rival factions, and their lobbyists,
were vying for control of the tribe and the right to open a casino with the potential to reap millions for a mere handful of people. The tribe has fewer than three adult members.
The dispute has since been settled and the $130 million casino project is going forward. Lobbyists who worked for the pro-casino faction took credit for the IRA amendments and said they paved the way for them to resolve the matter without BIA interference.
Another small California tribe -- with just five adult members -- has not been so lucky. In a March 31 decision, U.S. District Judge James Robertson said the amendments do not relieve the BIA of its role to ensure that tribal governance decisions "reflect the will of a majority of
the tribal community."
In the case of the California Valley Miwok Tribe, the BIA only recognizes three adults as having the power to make decisions. Last August, two of the adults disenrolled the third adult, who had been the tribe's chairman since the 1990s and has been in and out of jail most of his life.
As a result of the ongoing controversy, the BIA considers the tribe to be unorganized under the IRA. The BIA won't recognize the tribe's governing structure and recently pulled funding for the tribe's self-determination contracts.
Meanwhile, the state is withholding the tribe's share of money from the tribal gaming revenue fund.
In hopes of getting the BIA out of the way, the two remaining adults in the tribe filed a lawsuit and cited the Native American Technical Corrections Act. They said the amendments were put in the law to "free Indian tribes from the onerous organization requirements" of the BIA.
Federal government attorneys acknowledged that the measure "does give Indian tribes more procedural flexibility, [but] it does not relieve BIA of the duty to ensure that the interests of all tribe members are protected during organization and that governing documents reflect the will of a majority of the tribe's members."
Robertson, in his decision, agreed with that reasoning. He said the amendments inserted by Campbell "will [not] be construed to repeal or water down the protections afforded by the IRA when tribes organize: notice, a defined process, and minimum levels of tribal participation." In the eyes of the BIA's Central California Agency, those standards haven't been met.
Like the Buena Vista case, the Miwok case is colored by money. Yakama Dixie, the man who was disenrolled, has sought to open a casino but he won't relinquish control of the tribe to Sylvia Burley, who also favors a casino.
The BIA's Central California Agency had taken a similar hard-line stance on the Buena Vista matter before a group of lobbyists organized a smear campaign against Wayne Smith, who was the deputy of the BIA at the time. Smith was ready to side with the faction that didn't want the casino before he was forced out of office.
He was replaced by Aurene Martin, a former Campbell aide, who testified in September 2002 that the BIA should stay out of internal tribal disputes. "As a broad policy matter, I know that
the Assistant Secretary [Neal McCaleb] and myself are not fans of BIA involvement in approving tribal constitutions or tribal ordinances," she said. "We both believe very strongly that those are
matters that are internal to the tribe, and those documents are not something that we should be approving."
Several months later, Campbell was pushing his technical corrections bill through the Senate but gave little indication of his intent behind the IRA amendments. Robertson, in his decision, noted the "limited" legislative history of the provision.
The provision reads:
(h) Tribal sovereignty. Notwithstanding any other provision
of this Act–
(1) each Indian tribe shall retain
inherent sovereign power to adopt governing
documents under procedures other than those
specified in this section; and
(2) nothing in this Act invalidates any
constitution or other governing document
adopted by an Indian tribe after June 18,
1934, in accordance with the authority
described in paragraph (1).
The Senate report accompanying the bill describes the section as
Section 103. Tribal sovereignty
Section 103 clarifies that Indian tribes that accepted the Indian Reorganization
Act (IRA), 25 U.S.C. 476 are not required to adopt constitutions pursuant to the
IRA and remain free to organize their governing bodies pursuant to
organizational governing documents that they determine.
California Valley Miwok Tribe v. USA
Native American Technical Corrections Act:
Senate Report 108-049