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Mont. court recognizes tribe through common law

Despite not being recognized by the federal government, the Little Shell Chippewa Tribe possesses attributes of tribal sovereignty, the Montana Supreme Court ruled on Tuesday.

In a unanimous decision, the court refused to intervene in an internal election dispute. Writing for the majority, Justice Jim Regnier said to do so would violate tribal sovereignty.

"Indian tribes and their officials enjoy sovereign immunity from suit unless expressly limited by Congress," Regnier wrote.

The ruling, issued Tuesday, has the effect of judicial recognition for the tribe. The justices relied on a 1901 Supreme Court decision, Montoya v. United States , that sets out four criteria for "common law recognition."

The Little Shell Tribe, Regnier said, "satisfies each element of the Montoya test and therefore is a tribe entitled to sovereignty."

But the tribe has yet to finalize its status before the Bureau of Indian Affairs. In May 2000, former assistant secretary Kevin Gover issued a preliminary decision in favor of recognition and, after several extensions of the public comment period that were requested by tribe, the petition is still open for review.

That didn't stop the court from relying on Gover's analysis. The decision cites the proposed finding as evidence for the tribe satisfying the first three Montoya criteria: 1) members must be of the same or a similar race; 2) members must be united in a community; and 3) they must exist under one leadership or government.

For the fourth test -- that the tribe must occupy a territory -- the court said Little Shell members primarily live in three areas. "Furthermore, tribes are not required to occupy a reservation to either receive common law or federal recognition," Regnier added.

The tribe has been seeking federal status for more than 100 years. In 1892, Chief Little Shell refused to sign a treaty with the United States that would have paid out 10 cents an acre for 10 million acres of land. Little Shell ancestors left, and were forced off, what is now the Turtle Mountain Reservation in North Dakota.

In agreeing to recognize the tribe, Gover disagreed with an analysis by BIA researchers who said the tribe failed to satisfy three out of seven mandatory requirements that are laid out in federal regulations.

BIA researchers said the tribe failed to show evidence for certain period of time. The tribe has said it is working to fill the gaps.

Although Tuesday's decision was unanimous on the tribe's common law recognition, Justice Terry N. Trieweiler said he would have allowed the suit because members sued the tribe's corporation, not the tribe itself. "While I agree that the district court was without jurisdiction to entertain the complaint to the extent that it affected the election of tribal officials, I disagree that the district court was without jurisdiction to consider the complaint as it related to officers of that state corporation," he wrote.

Court Decision and Court Briefs:
Koke v. Little Shell Chippewa (April 2003)

Related Documents:
Federal Register Notice: Little Shell Chippewa (July 2000)

Related Stories:
Little Shell finding a departure (08/16)
Decisions put Gover in the middle (08/16)

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