The Cheyenne did meet with Governor Evans, Colonel John Chivington and several others at the meeting of Camp Weld in 1864.  Evans ordered the Cheyenne to report to Fort Lyon to turn in their guns.  Once that occurred, they were told to go to Sand Creek, about 40 miles away to wait for supplies, provisions, and others to teach them how to plant crops in place of following the buffalo, the life blood of the Cheyenne people, as well as numerous other Indian tribes. Governor Evans and Colonel Chivington ran for Congress.  Chivington, an Indian hater, who said, amongst other things, “Nits make lice”, when speaking with a group of people.  ”Nits”, according to Chivington, were Indian children.  Chivington was defeated in his run for Congress.  Evans withdrew his name from the ballot.  At the same time, Colorado Territory voters, voted down the chance for the Colorado Territory to become a state. At the end of November in 1864, 700 troops led by Chivington, attacked over 500 Cheyennes at Sand Creek.  Arapaho and Kiowa people claim their ancestors were camping at Sand Creek as well.  It was well known, at the time, that Arapaho and Kiowas always camped about 8 miles away from the Cheyenne.  Even though the Sand Creek Massacre National Historic Site is over 12,000 acres in size, the Cheyenne people, based primarily on their spiritual experiences at the site, say the Sand Creek Massacre, took place at Dawson’s Bend, a bend in Sand Creek.  Dawson’s Bend was named after William Dawson who maintained a ranch on the site for nearly 40 years. Troopers shot, mutilated, raped, burned, hung, decapitated, and literally slaughtered over 400 Cheyenne people.  These claims evolved out of survivors of Sand Creek who passed their stories (oral histories) to their families.  This particular figure of those slaughtered and murdered was given to this writer by Southern Cheyenne Chief Laird (Whistling Eagle) Cometsevah in 2004. Another contributor to the Sand Creek Massacre were corrupt Indian agents.  Rather than dole out supplies and provisions sent by the United States government to honor the 1861 Treaty of Fort Wise, some Indian agents sold the goods for their own profit. More, later….

There are hundreds of Iraqui war veterans without homes (this also occurred in the 1970’s when soldiers returned home from the Viet Nam conflict, can we learn ANYTHING from killing others as a means to solving problems?). Others are homeless because they have lost their jobs due to the ignorance of President Bush, Vice President Cheney, and Secretary of State Condelezza Rice, by causing the Iraq War. This war cost Americans billions of dollars. What was the reason for this war? Anyone? If a small portion of this money would’ve been spent to capture Osma Bin Laden, as President Bush said he was setting out to do, shortly after 9/11, America would be economically in better shape than it is today.

There are also other Americans who live in poverty because of other circumstances. Although American Indian reservations like Pine Ridge, which has lost people to starvation and the cold weather because of lack of resources to buy space heaters, stoves, food, etc. I have been confronted by others, primarily Native American people, who have told me that by “feeling sorry” for Native Americans, I am feeding into their needs, when they should be learning how to help themselves out.

It doesn’t matter to me whether I’m feeding into their needs, or not, what matters to me is that thousands of Native Americans are suffering poverty and other problems because many Americans have this shaded notion that helping people in other countries is helpful to these people as well as to themselves. To grab a bunch of Haitian kids and smuggle them out of Haiti to give them “good” homes in America is ignorance. Possibly overcome by the emotion of loss in Haiti, many Americans have bent over backwards, to use a cliche, to help Haitians out.

Meanwhile, thousands of Americans are in similar need. Why doesn’t John Travolta fly a plane full of space heaters, toilet paper, food, blankets, clothing, Church of Scientology people, etc. to Pine Ridge? Why? How many of you can answer that question? It certainly would be helpful to people on this Rez, similar to the help Haitians are receiving from Mr. Travolta’s mission to Haiti.

The fine point of this rant is that we need to, as a people, gather together to help out Americans in need, before we pour our emotions and hearts into helping out people in other countries. What will happen if we don’t, we will be looking to Haiti one day for their help. Do you want your children and grandchildren to have that experience? I certainly don’t.

A State of Emergency has been declared on the Pine Ridge Lakota “Sioux”
Indian Reservation. People have died. Many more people are at risk of
freezing to death. Another cold front is coming in, yet where is the
national media coverage?

Does the ‘Lacreek Electric Company’ - a non-Indian utility often thought
to be prejudice, care that people are suffering, since they are pulling
meters every day? (which is illegal throughout the rest of the u.s.
during the winter months).

What will Obama and the federal government do about this? While they dig
out Haitians, indigenous people right here may freeze to death. What are we going to do about it?

Help put this message out for help. The children and families of the Pine Ridge Indian Reservation need our help now. It is urgent that all 40,000 residents of the Oglala Nation have electricity and propane.

Call LaCreek toll free at 800-655-9324 or (605)685-6581 to see how you can
help pay into a customer’s account, example $5 into ten customers would
require a $50 donation by you. Tell LaCreek to make sure tanks are full
for ALL area residents between the months of November to March – and to
collect any delinquent payments between April and October.

Also, check out this non-profit to see if it is appropriate for you:
Arlene Catches The Enemy 605-867-5771 Ext 13.
Tax Deductable, Non-Profit (501-c-3). She can take credit cards over the
phone: Pine Ridge Emergency Fund, C/O Economic Development Administration
PO Box 669, Pine Ridge, SD 57770-0669

And call Lakota Plains Propane at 605-867-5199 and find out what homes have elderly or children and if they need money put down on their account to be
able to have a warm home tonight.

******************

List to assist Elders at Pine RidgeShare

Below are several Elders in the Kyle Community of Pine Ridge that are in immediate need of assistance. The contact information has been confirmed and permission has been granted to share their information with you.

There are several ways I will mention where assistance is needed and I’ll share here before I begin the information for where you can assist in paying for Propane for those who need it or to contact a local grocery store to pay for food for families who need this. Other ways of assisting the individual families will be listed with their contact information below.

To pay for propane for any individuals listed below use the information here and be sure to make your payment to the account of the individual(s) you choose to help. The propane company requires a minimum order of $120 of fuel before they will make a delivery to the individual. You can also pay for a persons propane and they will credit the individuals account so that when they do run out of any fuel they may have at the moment they can simply call and the company will deliver more.

Lakota Plains Propane (will take credit card)
Highway 407
Pine Ridge, SD 57770
605-867-5199
Be sure to request a receipt and use the contact for the person you are helping to call and followup to be certain they received the help you paid for.

Kyle Grocery (will take credit card)
Owner: Liz May
605-455-2824
Again be sure to follow up with the person you make a donation for to be sure they received the appropriate credit for purchasing food.

Elders in need are as follows:

Adolph Bull Bear
605-454-2190
He remains in need of continued assistance for propane, his son who is disabled lives with him and he is in need of food assistance which you can contact Kyle grocery (above) to make a donation for food. He will also need help with his electric bill.

Arlene Talks (age 72)
605-407-8243
She has a daughter and a granddaughter (age 7) who lives with her and is in need of propane and food assistance and you can contact the propane and grocery above to assist. You could also contact her for mailing address to send items for her granddaughter such as clothes, etc.

Janice One Feather (age 61)
605-455-2889
Mailing Address: P.O. Box 44, Kyle SD 57752
For Propane Delivery give House # 307
She has two grandsons living with her. Asa Steele age 7 and Dillon Westover age 9. You can mail donations for the two boys to the mailing address above for her and if you mail by fedex, UPS, etc use the house #307 Kyle SD 57752. She is in desperate need of food assistance and propane and you can use the info for propane and grocery companies above to pay for those items.

Donna Garnette
605-455-2527
605-441-7541
She has two grandchildren (Boy and girl), you can contact her for an address to offer assistance in clothes, etc for the children. She is in need of Propane and food assistance and you can use the info above for both companies to assist them with that.

Lilly Mae Red Eagle (age 88)
605-455-2612
Mailing address: P.O. Box 2, Kyle SD 57752
For propane delivery give House #HC2
She is in need of Propane and food assistance. You can use the info above for both companies to assist them with that. For deliveries by fedex, ups, etc use the house #HC2 Kyle SD 57752

Perlene Yellow Wolf (age 65 approx)
605-455-1458
She is in need of propane and food assistance. She lives with her daughter Crystal and three children. You can use the info above for both companies to assist them with that. They have a lot of problems with pipes freezing so if anyone in the immediate area could help with this that would be greatly appreciated.

May you be richly blessed for sharing your blessings with these elders and ensuring some relief to their suffering. Please help now as the need is immediate but please remember to help again in the future if you are able to as their needs are continual. Thank you in advance for sharing your love and helping these elders.

Raven Skye WinterHawk

The question:

What does it take to get an equal call to citizens of the
United States to help out American citizens who
have, are and will be experiencing metaphorical
earthquakes of their own?

Native Americans. Homeless war veterans. The
homeless. Poverty-stricken people in the United States.
Those who have lost their jobs and homes and had
and are having their lives ruined because
of ignorant, fear-filled human beings like George Bush
and Richard Cheney, who plunged the United States
of America into a meaningless war that caused the
murders of thousands of Americans, Iraquis, and
others, and in turn, created the economic turmoil
that has placed the United States on the brink of
financial disaster. These two individuals live in
warm, safe, secure homes, and are revered in some
circles, as wonderful men. With what legacy will history
books credit them? Because America honors those who
serve in public office, for some strange reason, more
than any other American, they will prevail with
their new libraries, etc.

Who is going to create a text message number for
people to call in to donate money to help out those
Americans who were figuratively destroyed in the
past by greed and self-interest like these two men?
Who? And when?

The United States has always been helpful to
people in other countries. It has helped make
America, in many people’s eyes, the great
country that it is. It is almost cliche. What
about Americans who need help? Think
about it. Where is the outpouring to
help Americans in need, like what is
going on in Haiti now? Where is it,
folks? And that is not to slight Haitians
one bit. The horror they are
experiencing is unimaginable. We
must help them out. I’m simply
saying that we have Americans
in America who are experiencing
the same kind of horror.

Food. Shelter. Clothing. Possibly a bit of
recreation. Where has it gone for thousands
of Americans who have been, are, and will
be devastated by this metaphorical earthquake
that plagues Americans as a people?

It is time for the United States of America to
put forth the same effort it does to help out
Americans like Haitians are being helped now.

It is time, or, the infrastructure of America will
continue to decay, and die.

It is time.

And for those of you, after reading this, who will want to compare me to Rush Limbaugh’s bellowing about American citizens’ income tax money that goes to Haiti, forget it. Rush Limbaugh is a squeaky
conservative. Oiling his hinges would only be a beginning to turning
around his idiocy. For me, my hinges are oiled. I am tired of those who try to make a show by giving others money, when many Americans in their backyards are struggling to stay alive.

We have always given as Americans. So much so,
we are blinded to the fact that there are thousands
of Americans who need the same kind of help
Haitians are struggling to receive. If you want to
argue this point, before you do, I encourage you
to visit some Native American reservations in
the United States. Visit them. Roll in the dirt,
feel their earth. Go to the Conoco convenience
stop in Lame Deer, Montana. Stand in line
with what you want to purchase. Observe
those standing in line with you. Who are
they? They are Native Americans who live
on a poverty-stricken reservation where
drug and alcohol abuse stalks each Native
American who lives there, like actually,
forced to live there, because their ancestors
were shot and killed when they resisted
attempts at curtailing their rights to
follow the buffalo and to live free.

Go there, my friends, before you flap
your tongue about me, and my
pontificating. Sit and ponder there.
Then, tell me that America’s
indigineous people in addition to
those Americans who live in
cardboard boxes under bridges
do not need the kinds of help some Haitians
are presently receiving.

Tell me. Tell me. Churches who
spend all of their might on helping
people in other countries who are
experiencing plight, poverty, hunger,
disease, AIDS, and a host of other
horrifying things that most Americans
do not. Why is it that there are
Americans in America who live
in “Third World” countries, or as
some idiots say, “developing nations”,
which is hilarious to me, here in
America? Check out Pine Ridge,
folks, before you attack me for my
presence of mind here.

Check out parts of Los Angeles,
New York City, Chicago, Denver,
etc. Everywhere, and anywhere you
go in the United States, you simply
need to open your eyes, and you will
see human devastation.

So, close your mind. Kick me in the ass
for this article. Say that I am an idiot.
It doesn’t matter. My plea is simply to
open your minds and eyes to the
devastation in America as you have
opened your minds and eyes to
Haitians. Americans need your
help as well. They also need your
hearts and your love. Who is the
first one to raise their hand and
pledge, as you are pledging to
Haiti, to exude the same passion
for America’s people who are
less fortunate than you? Who?

Your work regarding diversity in the United States,
as well as globally, is well-recognized. Now, it is
time to address America’s native people by doing
what you can do to get Congress to legislate a
bill to require American native studies on all
school curriculums. This way, America’s
infrastructure will take on strength by providing
a vehicle for all Americans to learn about
Native Americans.

We’ve gassed up the Prius here in Colorado.
We’ve made a couple of short films about
the Sand Creek Massacre, which gives viewers
an in-depth view about how this tragedy effects
America’s indigenous people today, 145 years
after the massacre. It continues to effect their
abilities to live productive lives in America.
Poverty, disease, drug and alcohol abuse,
etc., prey on America’s native people.

Ignorance caused the Sand Creek Massacre.
Racial prejudice permeates America of its
native people. This can be changed. But,
we need your help. Put us together with
Congress so that we can get a bill passed
that will require American Native studies
on all school curriculums. When this is
achieved, it is then, and only then that
the ignorance will begin to fade away in
young minds, and be replaced with an
awareness of America’s indigenous people
that does not now exist.

Please contact me with your interest.

Thank you for your consideration.

Best Regards,

Donald L. Vasicek
OLYMPUS FILMS+, LLC
The Zen of Writing/Filmmaking/Consulting
http://www.donvasicek.com
dvasicek@earthlink.net
303-903-2103

“You must be the change you want to see in the world.”
- Mahatma Gandhi

I. Introduction:
The Commerce Clause of the Constitution gives to Congress the exclusive responsibility of regulating our relationships with Indian tribes . Yet on June 25, 2008, the Supreme Court handed down its decision in Plains Commerce Bank v. Long placing another obstacle in the road to tribal self-government and further deviating from Congress’s intentions in passing the Indian Reorganization Act (IRA) of 1934. The bank in the case, a Non-Indian entity that had sold land it owned on the Cheyenne River Sioux Indian Reservation, sought a declaratory judgment that the tribal court judgment against the bank for discriminatory lending practices asserted by the Indian lessees was void due to a lack of tribal jurisdiction. Writing for the majority, Chief Justice Roberts looked to the Court’s earlier decisions in Oliphant v. Suquamish and in U.S. v. Montana before concluding that the tribe lacked any civil adjudicatory authority over the Longs’s discrimination claim. By finding no consensual relationship between the bank and the tribe, which would subject the bank to tribal jurisdiction, the decision removes a significant aspect of Indian tribes’ ability to self-govern and draws upon a chain of arbitrary decisions to almost narrow tribal jurisdiction over Non-Indians out of existence.
One of the primary purposes of the IRA was to correct the harm done by the General Allotment Act (Dawes Act) of 1885 by decreasing federal control and increasing tribal self government. My position is that Long fails these objectives miserably, and I will summarize this into two arguments. First, if one follows the history of the decisions and congressional enactments leading up to Montana and then to Long, it seems clear that the Supreme Court’s continued reliance on Montana and its subsequent reasoning in Long is misplaced. The decision reinforces the errors of the Dawes Act and departs substantially from Congress’s intent in passing the IRA. Second, even if one assumes that Montana is good law and that its exceptions to the blanket rule prohibiting tribal jurisdiction over Non-Indians still apply, the facts of the case clearly fall within the ordinary language of those exceptions. Therefore, the Cheyenne River Sioux Tribe’s adjudicatory jurisdiction should have been upheld rather than being further diminished.

A. Historical background

The decision in Long primarily was built on the Court’s earlier decisions in U.S. v. Montana and Oliphant. The problem with this is that these cases were based on policies that Congress had already attempted to do away with by enacting the IRA in 1934 and the Indian Civil Rights Act in 1968. The Constitution lists among the legislative powers the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” thereby granting Congress the sole authority to make laws governing the United States relations with the Indian tribes. In numerous cases, the Supreme Court has acknowledged the importance of Congressional intent in analyzing federal statutes. And in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, the Court held that when interpreting statutes relating to Indian law the statutes must be construed liberally in favor of the Indians with any ambiguity interpreted to their benefit. The two Congressional enactments in question, the Dawes Act and the IRA, both exemplify two frames of thought at different periods of time. But by relying on the Montana line of cases the Court has continued to focus on the residual effects of the failed Dawes Act and ignored the purpose of the subsequent IRA.

1. The Dawes Act and the IRA

On February 8, 1887, Congress passed the Dawes Act. Named for Senator Henry Dawes of Massachusetts, the law provided for the breaking up of reservation land held in common by the members of a tribe into small “allotments” divided among the individuals. Henry Dawes graduated from Yale College in 1839 and was admitted to the Massachusetts bar in 1842. In 1875, Dawes was elected to the United States Senate where he served on the Committee of Indian Affairs. A longtime advocate for the assimilation of the Indian tribes, Dawes believed that the only way to ensure the continued survival of the tribes was by bringing them into the folds of white society and making them “civilized.” As he noted in an article published in 1899, twelve years after the Dawes Act was enacted:  Emigration was yearly swelling in numbers…It was this condition which forced on the nation its present Indian policy. It was born of sheer necessity. Inasmuch as the Indian refused to fade out, but multiplied under the sheltering care of reservation life, and the reservation itself was slipping away from him, there was but one alternative: either he must be endured as a lawless savage, a constant menace to civilized life, or he must be fitted to become a part of that life and be absorbed into it. To permit him to be a roving savage was unendurable, and therefore the task of fitting him for civilized life was undertaken.

The purpose of the Act was clear, to provide for the elimination of the reservations and end tribal dependence on the federal government while promoting the assimilation of tribal members into conventional society. Legislators hoped to complete the assimilation process by forcing the tribes to abandon their communal life-style and imposing Western values of economic independence and nuclear families. However, the small parcels were not large enough for economic viability and many were eventually sold to Non-Indians. In addition, any land deemed to be “surplus,” that is beyond what was needed for allotment, was also opened to white settlers. By the time the Act was repealed in 1934 with the enactment of the IRA, around 90 million acres of land, or two-thirds of the 1887 tribal land base, were lost and roughly 90,000 Indians were left landless. The Dawes Act also had a negative impact on the culture of Indian tribes and their ability to self-govern. The depletion of the land base effectively ended hunting as a means of obtaining food and forced men to work in the fields, typically considered to be a women’s role in Indian societies. This shift caused many tribes to shift from matrilineal to patrilineal societies, and women who enjoyed status and political importance prior to allotment became dependent entirely on their husband.
Two decades later, in 1906, Congress enacted the Burke Act amending the Dawes Act to give the Secretary of the Interior the power to issue allotees a patent in fee simple to people classified ‘competent and capable.’ The land of any allottees deemed ‘competent’ by the Secretary would lose their trust status and become subject to taxation, or could be sold by the allottee. The allotted lands of Indians determined to be incompetent were automatically leased out by the Federal Government, resulting in further loss of tribal land to Non-Indians. This pro-assimilation policy continued for twenty more years until the Department of the Interior conducted a study of the living conditions of the Indian peoples. The product of this study was The Problem of Indian Administration, or the Meriam Report, after its author Lewis Meriam. The Meriam Report listed numerous failings of the Dawes Act, from the inadequate size of the allotments to the lack of properly qualified personnel administering the trusts in the Bureau of Indian Affairs (BIA). The report also suggested that through gross mismanagement of the land trusts BIA personnel were cheating Indian allottees out of their land. It was these failings which helped to pave the way for the IRA of 1934.
Possibly the biggest proponent of the IRA was John Collier. Collier was an advocate for Indian rights, believing that the culture of the Indians must be protected from white encroachment. Collier believed that Indian survival was dependent on the retention of the tribal land base. As a result he rejected the assimilation and Americanization policies symbolized by the Dawes Act and demanded the acceptance of the cultural differences of the Native American tribes. In Collier’s opinion, the Dawes Act was a complete failure leading to the increasing loss of Indian land and his arrival as a federal Indian policy reformer was a turning point in Indian affairs. Collier attacked the BIA’s policies directly. Prior to Collier criticism of the BIA was primarily directed only at the corruption and incompetence of the personnel rather than the policies being followed. Collier fought against legislation and policies which he believed to be detrimental to the well-being of Native Americans and his work led to the study which created the Meriam Report.
The election of President Roosevelt in 1932 was the first step towards fixing the mistakes of the Dawes Act. A reform president, Roosevelt named Collier as the Commissioner of Indian Affairs in 1933. With a mind towards alleviating the conditions brought on by the Great Depression, Collier introduced the IRA to Congress. Codified at 25 U.S.C. §§461-479, the IRA reversed fifty years of assimilation policies and emphasized tribal self-determination and a return of communal Indian land. Several state and federal district courts have found that the purpose of the IRA was to foster and encourage self-government by the tribes. But the Supreme Court has failed to grant certiorari and directly address the issue. Instead, over forty years after the enactment of the IRA, and shortly after the District Court of South Dakota delivered its decision in Kleppe, the Supreme Court delivered an opinion in Oliphant v. Suquamish which struck a hammer blow against tribal jurisdiction and paved the way for more atrocious cases like Montana.
2. Oliphant and Montana
The first decision to be handed down on the way to Montana was Oliphant v. Suquamish. Justice Rehnquist delivered the majority opinion in Oliphant which held that Indian tribal courts lack any criminal jurisdiction over Non-Indians. The opinion called efforts by the tribes to exercise criminal jurisdiction over Non-Indians a relatively ‘new phenomena’ and stated that where these efforts were attempted before they were found to be without jurisdiction. Rehnquist gave as his reasoning that “Until the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure and not by formal judicial processes; emphasis was on restitution rather than on punishment.” Rehnquist ignored the fact that for the most part there were no tribal courts prior the middle of the century, until after the passage of the IRA in 1934. The IRA gave tribes the ability to form their own constitutions and court systems. Prior to 1934, the BIA had primary adjudicatory authority over disputes arising in Indian country. It was not until after the IRA that tribes even had the authority to create their courts, and rather than credit the tribes that bothered to create a court system, Rehnquist marginalizes their efforts. But Oliphant’s flaws stretch even further than that.
The opinion next cited a statement made in 1834 by the then-Commissioner of Indian Affairs, John H. Eaton. Eaton stated: “With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint.” Aside from being an observation made by a white man in the early nineteenth century, an age of little cross-cultural understanding. The statement was made 100 years prior to the passage of the IRA and over 140 years prior to the date Oliphant was decided. Ideas and perspectives on many topics changed drastically over this period of time which spanned five great American wars, as well as the Sioux Wars of the late nineteenth century. Also, the tribes had been given reservations on which to live and many formed their own functional governments and, with the passage of the IRA, their very own court systems based on the Anglo-American model. Take the Navajo Nation for example. Today the Navajo Nation boasts the largest enrolled membership and largest reservation of any of the recognized Indian tribes. The current Navajo government was founded in 1923 to facilitate access to tribal land by American oil companies. The Navajos soon expanded their government to replicate our federal three-branch system by creating both an executive and a judicial branch alongside the Navajo Council. The Navajo Judicial Branch was adopted in 1959 and resembled many state court systems in that it included trial-level district courts, an appellate court and its own police force. I grant that the Navajo Nation is certainly an outlier in that it is likely the most sophisticated of the tribes and its large population gives it access to more resources than others, but it serves as an excellent example of what the tribes can achieve if given the means. For these reasons it was error for the Court to place any reliance on the words of an executive agency officer spoken over 140 years earlier.
The other sources of the Court’s reasoning, a treaty from 1830, a single case from 1878 and a 1970 opinion from the Solicitor of the Dept. of the Interior, also do not in my opinion provide adequate support for the Court’s decision. The 1830 Treaty with the Choctaw Indian Tribe guaranteed to the Choctaws “the jurisdiction and government of all the persons and property that may be within their limits.” But the Treaty concluded with the provision that the Choctaws “express a wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation, and infringe any of their national regulations.” Rehnquist found a request for affirmative congressional authority inconsistent with the belief that criminal jurisdiction over non-Indians is inherent in tribal sovereignty. But this request was for punishing Non-Indians by the laws of the tribe, not the laws of the State of Mississippi. At the time of the decision, the Navajo court had already adopted its own version of the Model Penal Code as well as the Arizona Rules of Procedure for use in its courtrooms. The authorities cited by the Court express a concern for the constitutional liberties so fundamental to every American’s well-being not being protected. But it was for this very reason that in 1968, just a decade prior, Congress passed into law the Indian Civil Rights Act.
The Indian Civil Rights Act (ICRA) of 1968 required the Indian tribes to recognize and protect nearly all of the rights enumerated in the U.S. Bill of Rights to any person within their jurisdiction. The few exceptions include the lack of an Establishment Clause prohibiting an official religion, the lack of a right to bear arms, and the lack of a right to counsel. The Court recognized that by extending the same basic rights to anyone tried in an Indian court that “many of the dangers that might have accompanied the exercise by tribal courts of criminal jurisdiction over non-Indians only a few decades ago have disappeared.” Also considered were the increasing sophistaction of the Indian courts and their resemblance to state systems. In the end, however, the Court stated that without an express Congressional grant of authority the Indian tribes lack the jurisdiction to try and punish non-Indians.
Only four years after Oliphant, the Supreme Court handed down a decision in United States v. Montana. The primary issue in Montana was whether the Crow tribe, relying on the language in a treaty, had the authority to regulate hunting and fishing activities by non-Indians on non-Indian owned fee land within the external limits of the reservation. The author of the majority opinion, Justice Stewart, took things a step further with his rationale that the principles upon which Oliphant was based “support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Stewart did acknowledge that the inherent sovereign power of Indian tribes grants the authority to exercise some forms of civil jurisdiction over non-Indians on their reservation, including on non-Indian fee lands. These authorized forms of civil jurisdiction have become known as the ‘Montana Exceptions.’ The first of these exceptions provides that “a tribe may regulate through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” The second exception allows tribes to exercise civil jurisdiction over “the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. The Montana Exceptions have a significant impact in the realm of Indian law because they define the scope of tribal jurisdiction over non-Indians. Unfortunately, in the last 26 years the Supreme Court has found few cases where tribal courts were allowed to retain civil jurisdiction over non-Indians. As each new decision is handed down, tribal jurisdiction over non-Indians comes closer to being narrowed out of existence, and the most recent example of this is Plains Commerce Bank v. Long.
B. Long is Wrong because the cases on which it relies, Oliphant and Montana, are erroneously interpreted in light of old policies and are substantial deviations from modern Congressional intent.

The dispute in Long arose after a non-Indian bank sold fee land on the Cheyenne River Sioux reservation to non-Indian buyers. After the sale, the Longs, an Indian couple who were customers of the bank and had defaulted on their loans, claimed the bank discriminated against them by offering the land to the buyers on more favorable terms than were offered to them. The Longs sued in tribal court, which ruled against the bank and awarded the Longs damages and the right to purchase a portion of the land. The bank appealed to the Cheyenne River Sioux Tribal Court of Appeals on the grounds that the tribe lacked jurisdiction to hear the case. The tribal court’s decision was affirmed and the bank appealed again to the U.S. District Court for the District of South Dakota. The District Court granted summary judgment to the Longs after finding that the bank had entered into a consensual relationship with the Longs, thereby subjecting the bank to tribal jurisdiction under the first Montana exception. The Court of Appeals for the Eighth Circuit affirmed the decision on the grounds that the Longs’ discrimination claim “arose directly from their preexisting commercial relationship with the bank.” In the Eighth Circuit’s view, the tribe had authority to regulate the business conduct of persons who “voluntarily deal with tribal members,” including a nonmember’s sale of fee land.
The Supreme Court, after considering its decisions in Oliphant, Montana and in Strate v. A-1 Contractors , reversed the decision because the tribe lacked the jurisdiction to hear the Long’s discrimination claim. Chief Justice Roberts, writing for the majority, stated that tribes generally do not “possess authority over non-Indians who come within their borders.” Citing Strate that “a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction,” the Court held that the Tribal Court lacked jurisdiction to hear the Longs’ discrimination claim because the tribe lacks the civil authority to regulate the Bank’s sale of its fee land. Specifically, the Court determined that the tribal tort law that the Longs were attempting to enforce operated as a restraint on alienation, in this case limiting a nonmember’s sale of fee lands they own. The Court explained that the tribal court lacked jurisdiction because the first Montana exception expressly applies only to the activities of nonmembers, and that the sale of land is not an activity on land but something altogether different. The Court reasons that fee land owned by nonmembers have already been removed from the tribe’s control, therefore its subsequent sale to a different nonmember makes no difference because any harm to the tribe’s political integrity or ability to self-govern occurred at the point the land transferred out of tribal control.
There are several reasons why the Court’s reasoning is flawed. First, the Court relies on the principles set out in Montana and Oliphant as if they were clear and incontrovertible truths, when they actually mark a significant departure from the foundational case-law as of the Marshall Trilogy and run contrary to the intent congressional enactments like the IRA and the ICRA. Finally, as Justice Ginsburg points out in her dissent the majority in Long ignores the old canons of construction for interpreting Indian law by reading the unambiguous language of the Montana exceptions in such a way as to make them ambiguous.

1. The Divestiture of Territorial Sovereignty

The Rehnquist-era decisions marked a turning point in the way the Supreme Court looked at Indian-law cases. Prior to that, cases were typically determined based on the foundations laid down by the Marshall Trilogy of cases. These cases spawned the ‘implicit divestiture’ docrine, based on the notion that the tribes “domestic dependent nations” and as such enjoyed diminished sovereignty. But one of the most important principles emanating from those decisions was that the Indian tribes retained those aspects of sovereignty which were not expressly divested by Congress. As recently as 1959, the Supreme Court confirmed these principles in Williams v. Lee. In Williams, the Court held that where crimes occur on the reservation by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive. This decision was announced not even twenty years before Oliphant, where the Court applied a blanket rule prohibiting a tribe’s assertion of criminal jurisdiction over non-Indians.
Oliphant was the first case to raise the implicit divestiture doctrine since the Trilogy cases, and it laid the foundation for Montana and Strate. The Long opinion cites all three as the primary sources of their reasoning. The Court leads off by citing part of the holding of Oliphant that “the tribes have, by virtue of their incorporation into the American republic, lost “the right of governing persons within their limits except themselves. Montana then limit this authority solely to civil matters in instances where nonmembers enter consensual relationships with the tribe through commercial dealing, or where nonmember conduct threatens or directly effects the sovereign interests of the tribe. But Congress could not have intended for this level of divestment, and the current federal policy of tribal self-determination support this proposition.
With the repudiation of the Dawes Act, Congress realized that the assimilation of the tribes into our society would not work and instead promoted the reorganization of tribal governments so that they would be more like our own. Beginning with Oliphant, the Court has focused solely on the effects of the Dawes Act as the basis for perpetuating its goals. The Court’s rationale is that Congress has never expressly acted to reverse those effects. But Congress’ intent was clear that Indian country should be preserved as it was at the time the IRA was enacted. If it wasn’t clear enough for the Court in 1934, then it should have been clear by 1948 when Congress passed legislation defining Indian country as including “all lands within the limits of any Indian reservation. ” Since then Congress has modified the ICRA to extend the rights guaranteed by the Act from“any Indian” appearing before tribal courts to “any person.” These rights include most of the basic rights enjoyed by anyone in the United States court system with the additional right of habeas corpus to anyone who contests the legality of their detention by an Indian tribe. From the plain meaning of the words in these statutes, it is clear that Congress manifested its belief that lands within the external boundaries of reservations are included within Indian country and that tribal courts are competent to try cases involving non-Indians. Therefore if the Court had decided to, it could have affirmed the adjudicatory jurisdiction of the tribes and finally stopped any further damage caused as a result of Oliphant and Montana. Instead, Long just builds on top of a case for which the only authority from the 20th century was a legal opinion, which the Court knew had been withdrawn for undisclosed reasons, and diminishes further tribal sovereignty.

2. Long fits the Montana Exceptions

The Court held that the Montana exceptions did not apply to the Longs’ discrimination claim against the bank because it concerned the sale of fee land acquired from the estate of a non-Indian. The Court drew a distinction between non-member conduct and non-member activities, explaining that the first exception applies only to activities and that the bank’s sale of land was conduct rendering the exception inapplicable. The Court then said that the second exception did not apply because the bank’s conduct had no effect on did not implicate the tribe’s sovereign interests. However, this was only a 5-4 decision. Justice Ginsburg wrote for the dissent,with whom Stevens, Souter and Breyer joined, arguing that the case was not about the sale of non-Indian fee land on a reservation, but “the power of the Tribe to hold nonmembers like the bank to a minimum standard of fairness when they voluntarily deal with tribal members. ” It was Justice Ginsburg’s opinion that in this context it was within the tribe’s authority to adjudicate the Long’s claim.
After the bank appealed the tribe’s judgment to the federal courts, the District Court found that the contract between the bank and the Longs both created the requisite consensual relationship and that it “clearly involved the economic security of the tribe. The District Court based these findings on the facts that after Kenneth Long died and the land was deeded to the bank, the bank took part in discussions concerning the new loan agreement with the Longs and CRST Tribal officers at the CRST Tribal offices on the reservation. The District Court cited the CRST Court of Appeals opinion that:
This case is the prototype for a consensual agreement as it involves a signed contract between a tribal member and a non-Indian bank. The contract deals solely with fee land located wholly within the exterior boundaries of the reservation. Fee land that was originally owned by the Longs, but owned by the Bank during the controverted events in this lawsuit. All bank loans in this matter were provided solely for the ranching operation by the Longs taking place on the Bank’s land within the reservation. Numerous meetings of the Bank with the Longs, with Cheyenne River Sioux Tribal Officials, and Bureau of Indian Affairs personnel took place on the reservation, both when the land was owned by the Longs and subsequently when it was owned by the Bank.

The District Court also found that the economic security of the tribe was affected in that it (along with the BIA) was a direct participant “actively consulted by both the Longs and the Bank seeking economic data and support relevant to the cattle operation on the Longs’ land. The District Court reasoned that if the economic security of the tribe was not involved, then it would not have had such a large role in these events in seeking to support and advance the opportunity for tribal members to succeed in their ranching operation.
Ginsburg’s dissent focuses on many of these same facts. She writes that unlike Strate, this was a clear case of a consensual relationship. The dispute in Strate, the Court said was “distinctly non tribal in nature” Because it “arose between two non Indians involved in a run of the mill highway accident. ” Although the defendant in Strate was engaged in subcontract work on the reservation, and therefore had a “consensual relationship” with the tribe, the plaintiff there was not a party that contract, thus it was not a tribal matter. Lending strength to Ginsburg’s point is the fact that she also authored the opinion in Strate, so she is in the best position to explain the reasoning behind it. She points out that although the Long family operation (the Long Company) was incorporated in South Dakota, it was “overwhelmingly tribal in character, as were its interactions with the bank. ” The Long Company is a closely held corporation and CRST members have controlled at least 51% of its outstanding stock at all times. Such Native American control was necessary in order for the Long Company to qualify for BIA guarantees which allowed the bank to make loans to the Longs at greatly reduced risk. In fact, after the Longs’ cattle died in the winter of 1996-1997 the bank submitted a claim on those guarantees and received $392,968.55 from the BIA. The District Court found, and Ginsburg agreed, that the loan agreements between the bank and the Long Company were not only crafted with tribal membership in mind; they would not likely have been possible without it.
Ginsburg observed that the Longs’ discrimination claim was based on the allegedly unfair conditions resulting from the bank’s failure to provide the loans necessary to sustain the operation of their ranch. She cites again to Strate where it was explained that Montana’s consensual-relationships exception justifies tribal court adjudication of claims “arising out of on-reservation sales transactions between nonmember plaintiffs and member defendants. How should it be different between member plaintiffs and non-member defendants?
The Majority in Long noted the absence of any case law specifically finding that Montana authorized a tribe to regulate the sale of non-Indian fee land. But then why does Montana’s list of examples of valid consensual relationships that tribes might have have authority over include “commercial dealing, contracts and leases. If the Court had intended land sales to be excluded from this then it could have easily said so, but it did not. And why would a tribe’s enforcement of an antidiscrimination claim be less important to tribal self-rule when it relates to the sale of land than in other contractual relationships?
C. C. Long is Wrong Because the Consensual Relationship Exception is an Inappropriate Restriction on the Tribes’ Ability to Self-Govern.

In most peoples’ minds, the notions of sovereignty and self-determination would include the power for a state to subject any outsiders who come within its borders to governmental authority. As I cited before however, in Oliphant the Supreme Court held that “the tribes have, by virtue of their incorporation into the American Republic, lost the right of governing persons within their limits except themselves.” But this does not reconcile itself with the position of the States when they entered our Republic. Surely we know that the States may exercise personal jurisdiction over non-residents in instances where the conduct or activities of those persons takes place within the state’s borders. So why are the tribes treated differently?
Perhaps it is because the Anglo-American judicial system emerges from a culture so drastically different than that of the Indian tribes. This could cause some concern with the Court about potential litigants having fair notice that they will be subjected to the authority of the tribal courts. This seems a valid concern because average Americans, or other non-Indians, may lack any knowledge or information about the laws on Indian reservations so that to subject them to the jurisdiction of tribal courts would be a violation of their right to fair notice under the Due Process Clause.
Smith v. Salish Kootenai College , the Ninth circuit relied on Williams and Hicks to determine that the “consensual relationship” test for civil tribal jurisdiction resembled the Due Process Clause analysis for personal jurisdiction used in federal courts. This begs the question, then, what are the federal standards? In the benchmark case of World-Wide Volkswagen Corp. v. Woodson , the Supreme Court gave us the ”minimum contacts” rule. In Woodson, the Court reaffirmed that a state court may exercise personal jurisdiction over non-resident defendants only so long as the defendant maintains “minimum contacts” within the forum state. The Court said that this rule protects defendants against litigating in distant or inconvenient forums and ensures that the States do not reach out beyond the limits imposed on them by their status as co-equal sovereigns in a federal system.
The Court made clear that this protection against inconvenient litigation means “reasonableness” and “fairness,” such that defendant’s contacts within the forum state must be such that maintenance of the suit “does not offend traditional notions of fair play and substantial justice.” In addition, courts considering this should consider other factors such as the form state’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief , but the Due Process clause may sometimes divest a forum state from its power to render a valid judgment, notwithstanding these factors if the defendant has no contacts within that state.
So what are these “minimum contacts?” According to Woodson, the threshold must be something more than mere foreseeability of being brought before the forum state’s courts. Rather, similar to the situation in Long, a corporation was brought before the forum state and challenged the state’s jurisdiction to hear the case. The Supreme Court stated that when a corporation purposefully avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there. Thus, the forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.
This is clearly analogous to the circumstances in Long, where the bank knowingly engaged in a transaction with an Indian-owned enterprise, the transaction took place on the reservation, the bank regularly dealt with other Indian customers, and the terms of the disputed agreement were negotiated with the Bureau of Indian Affairs at CRST tribal offices. This should be more than sufficient contact within the reservation to support the exercise of tribal jurisdiction if the standards laid down in Woodson applied to tribal courts in the same manner as they do for the states. Moreover, it would certainly have been enough for the Supreme Court to affirm tribal authority under Williams v. Lee where the Court held that it would undermine tribal courts’ authority over reservation affairs and infringe upon the right of the tribes to govern themselves to allow the exercise of state jurisdiction where a non-Indian was on the reservation, and the transaction took place on the reservation.
For tribal jurisdiction though, the consensual relationship must stem from “commercial dealing, contracts, leases, or other arrangements,” and it requires that the tribal authority imposed bear a nexus to the consensual relationship itself. Relative to the authority granted to the states to try non-resident defendants, this is a much higher standard. Under Long, the two standards should make no difference because, to me, in this case the facts support an exercise of tribal jurisdiction either way. The consensual relationship exception in this case should have been no more than just an annoying obstacle, but, in this case and in many other tribal jurisdiction cases, it has utterly precluded Indian tribes from exercising jurisdiction over nearly all non-Indian activities on reservations. How can this be an appropriate rule for the Supreme Court to follow?
The real question is what interests are we promoting by continuing to use this ridiculously stringent standard? The Supreme Court has waved the flag of fair notice as its primary justification in denying jurisdiction to the tribes in both civil and criminal matters. But this is a more recent development, starting with Oliphant. It is important to mention that the Court never expressed these concerns in civil cases prior to Oliphant. In fact, in Williams v. Lee the Supreme Court found it perfectly reasonable to hold a Non-Indian defendant liable in a tribal court for conduct occurring on the reservation. For the early part of the twentieth century even it can be argued that there existed an attitude within federal courts that tribal civil jurisdictions over Non-Indians was perfectly acceptable.
A pragmatic approach is a far better solution to the problem of modern federal Indian law. I think if view things realistically or with a little more common sense and stay away from creating complicated or outdated legal fictions we would end up with something much more workable for both the United States and the individual Tribes. The case that feel is the best example of this view would be the Eighth Circuit decision in Buster v. Wright all the way back in 1905. The case in Buster involved a dispute between the Creek Nation and a group of Non-Indian traders who were conducting their business on the Creek reservation. There, the Creek Nation levied a permit tax on non-citizens (of the tribe) for trading within its borders, but the traders contested the tribe’s authority to require the payment of the tax. The case proceeded through the tribal courts up to the Eighth Circuit, which affirmed the tribe’s ability to levy the tax on Non-Indians.
The traders in Buster contended that the authority of the tribe to levy such a tax was limited by the fact that they owned the land that their businesses were located on and that the tribe had lost title to it. However, the Eighth Circuit held that the power to levy such a tax was “one of the inherent and essential attributes of their original sovereignty…a natural right of that people, indispensable to its autonomy as a distinct tribe or nation.” In making this decision the court noted that Congress of course had the power to take the Creek Nation’s authority to tax non-Indians away, but until then it remained within the scope of the tribe’s power. The Court also emphasized that it found the tribe to be well qualified to levy such a tax based in part on the fact that the Creek Nation had modeled its Constitution after our own and adopted a three-branch system of government as well.
The traders presented the arguments that because the properties in question were owned by non-Indians or because they were located within distinct non-Indian towns or settlements on the reservation that they were exempted from the tribal tax. But the court rebuffed these assertions by stating that “Neither the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities…nor by the ownership, nor occupancy of land within its territorial jurisdiction by citizens or foreigners.” Rather the Justice Sanborn determined that “the payment of [the] tax is a mere condition of the exercise of [the] privilege [of trading on the reservation]. No noncitizen is required to exercise the privilege or to pay the tax. He may refrain from the one and he remains free from liability for the other.” This represents a polar opposite view of that taken by the Rehnquist Court in Montana and Oliphant, and in my opinion, a view that actually makes sense. Though Buster was essentially a tax issue, the analysis and logic translate easily to a discussion over tribal jurisdiction.
It should also be noted that in Buster the Creek Nation’s sole means of enforcing its tax against the traders was to have federal agents come onto the reservation and shut down the offending businesses. The traders relied on a Congressional enactment for their initial cause of action. An appropriations act for the Indian Department, dated May 27, 1902, also included that “it shall hereafter be unlawful to remove or deport any person from the Indian Territory who is in lawful possession of any lots or parcels of land in any town or city in the Indian Territory which has been designated as a town site under existing laws and treaties.” The traders relied on this to argue that the closing of their businesses was a violation of their rights under the Fifth Amendment and deprived them of life, liberty, or propert without due process of law. But, after determining that the tribe had lawful authority to levy their permit tax on the traders, the Eighth Circuit held that “Every noncitizen who continues to trade after his refusal upon reasonable demand to pay his permit tax is a continuous violate of [the] law…and he has no personal or property right to violate that or any other valid law. Hence the mere stoppage of that violation, the mere closing of his unlawful business…impinges upon no right of life, liberty, or property which he possesses.”
Relying on an U.S. Attorney General’s Opinion that the 1902 law did not, nor was intended to, limit the tribe’s authority to enforce its tax upon non-Indians within the reservation, the Buster court reached the final conclusion that “purchasers of lots in town sites in towns or cities within the original limits of the Creek Nation…are still subject to the laws of that nation prescribing permit taxes for the exercise by noncitizens of the privilege of conducting business.” In my opinion this is a rational opinion that embodies an understanding of general facts of life and I believe it is especially relevant to both the Long decision and to the very state of Federal Indian law in general. Granted, Buster was a tax case rather than a jurisdictional, but then so was Montana. If the Supreme Court had only decided Montana on the basis of whether the Crow tribe had the authority to charge non-members for hunting permits, rather than whether the it had jurisdiction over non-Indians, we may have been in a vastly different state of affairs today.
In addition, the facts of Buster and Long can be easily analogized. Both involved commercial enterprises that conducted business transactions on the reservation knowingly and intentionally. The view presented was pragmatic and more necessary now than ever before given the complex nature of the animal that Indian law has become. And the decision in Buster came in 1905, before the IRA and well before the ICRA. This shows us that there were judges who believed that the tribes were competent enough in their authority to regulate the conduct of Non-Indians within the boundaries of Indian reservations, and that it would probably not be a radical concept. The later repeal of the misguided Dawes act with the passage of the IRA makes it easy to infer that tribes exercising civil jurisdiction over disputes involving Non-Indians and arising in Indian country would also have been acceptable to these judges if they were sitting at the bench today. Surely this attitude was confirmed when Williams was handed down in 1959. And it can be further argued that the passage of the ICRA only a decade after that was actually a Congressional affirmation of tribal authority in this regard.
Montana’s consensual relationship exception arose from Oliphant, but it seems to me that the only foundation for the decision in Oliphant arose from the 1834 opinion I referred to earlier which read: “With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint.” This is why the consensual relationship exception is an inappropriate restriction on tribal sovereignty. Tribal judicial systems have advanced dramatically in the last 80 years. In most cases they virtually mirror their Anglo-American counterparts in form and function. Many tribes have also adopted similar civil codes to the states in which their reservations lie.
The Navajo Nation, for example, possess the largest reservation in the country, occupying parts of Utah, New Mexico and a large portion of Arizona. The Navajo Judicial system consists of an appellate court, the Supreme Court of the Navajo Nation, and numerous trial-level district courts. The Navajo Nation has also adopted its own version of the UCC and utilizes a unique Peacemaking Program much akin to court-appointed mediators in other states. While small cultural differences may exist, even between tribes, they cannot be said to be substantially different from the differences that exist between the states to the extent that it would be unfair or prejudicial to subject a Non-Indian who is conducting his affairs within the boundaries of their reservation to tribal jurisdiction. The Supreme Court has said that absent a Congressional Enactment, it cannot give the tribes these powers. But Congress has acted. The passage of the IRA was an expressed Congressional desire that the tribes, and their sovereignty should remain. The ICRA supplied them with the procedural tools and safeguards to try non-Indians. Their laws are familiar to Non-Indians and the courts are competent, and the continued reliance on the consensual relationship exception is gradually eroding what little remains of tribal sovereignty. But the Supreme Court turns a blind eye to these developments and continues to use and rely on the Trilogy cases, whose only seemingly rational authority is 175 year old statement made by a BIA official that reeks of racist overtones.
Further, the consensual relationship exception is inappropriate because it clearly complicates the judicial process with its apparently ambiguous language. The exception cases that have come since Montana have shown us that the Supreme Court apparently did not mean what it said with seemingly plain language. The decision in Long only affirms this conclusion. If a bank that regularly does business with Indian clients on reservation and who negotiates these transactions through the BIA can’t be said to have a consensual relationship with the tribe that would subject it to the authority of tribal courts, then what is the purpose for having such an exception is the first place? Rather, I think we need to start with a clean slate and start over by taking a hard look at the foundations of federal Indian law and the Buster decision. The Buster decision represents rational and sensible thinking, and it expressly affirms the inherent sovereignty of the tribes while at the same time giving them the means to enjoy and utilize that sovereignty.
In the spirit of the IRA and the basic principles that provide that the tribes possess attributes of inherent sovereignty not divested by Congress, Long was wrongly decided. The Court based its decision solely on the effects of policies and perspectives that have been expressly repealed by Congress. Rather than respecting and fostering tribal sovereignty, Long has done more to create an illusion. If there is ever any hope for tribal courts to possess real authority over non-Indians, it is up to Congress to express it in terms clear enough for the Court to understand.

LONG DECISION, WRONG DECISION: The Supreme Court’s Refusal to Recognize Tribal Sovereignty

I. Introduction:
The Commerce Clause of the Constitution gives to Congress the exclusive responsibility of regulating our relationships with Indian tribes . Yet on June 25, 2008, the Supreme Court handed down its decision in Plains Commerce Bank v. Long placing another obstacle in the road to tribal self-government and further deviating from Congress’s intentions in passing the Indian Reorganization Act (IRA) of 1934. The bank in the case, a Non-Indian entity that had sold land it owned on the Cheyenne River Sioux Indian Reservation, sought a declaratory judgment that the tribal court judgment against the bank for discriminatory lending practices asserted by the Indian lessees was void due to a lack of tribal jurisdiction. Writing for the majority, Chief Justice Roberts looked to the Court’s earlier decisions in Oliphant v. Suquamish and in U.S. v. Montana before concluding that the tribe lacked any civil adjudicatory authority over the Longs’s discrimination claim. By finding no consensual relationship between the bank and the tribe, which would subject the bank to tribal jurisdiction, the decision removes a significant aspect of Indian tribes’ ability to self-govern and draws upon a chain of arbitrary decisions to almost narrow tribal jurisdiction over Non-Indians out of existence.
One of the primary purposes of the IRA was to correct the harm done by the General Allotment Act (Dawes Act) of 1885 by decreasing federal control and increasing tribal self government. My position is that Long fails these objectives miserably, and I will summarize this into two arguments. First, if one follows the history of the decisions and congressional enactments leading up to Montana and then to Long, it seems clear that the Supreme Court’s continued reliance on Montana and its subsequent reasoning in Long is misplaced. The decision reinforces the errors of the Dawes Act and departs substantially from Congress’s intent in passing the IRA. Second, even if one assumes that Montana is good law and that its exceptions to the blanket rule prohibiting tribal jurisdiction over Non-Indians still apply, the facts of the case clearly fall within the ordinary language of those exceptions. Therefore, the Cheyenne River Sioux Tribe’s adjudicatory jurisdiction should have been upheld rather than being further diminished.

A. Historical background

The decision in Long primarily was built on the Court’s earlier decisions in U.S. v. Montana and Oliphant. The problem with this is that these cases were based on policies that Congress had already attempted to do away with by enacting the IRA in 1934 and the Indian Civil Rights Act in 1968. The Constitution lists among the legislative powers the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” thereby granting Congress the sole authority to make laws governing the United States relations with the Indian tribes. In numerous cases, the Supreme Court has acknowledged the importance of Congressional intent in analyzing federal statutes. And in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, the Court held that when interpreting statutes relating to Indian law the statutes must be construed liberally in favor of the Indians with any ambiguity interpreted to their benefit. The two Congressional enactments in question, the Dawes Act and the IRA, both exemplify two frames of thought at different periods of time. But by relying on the Montana line of cases the Court has continued to focus on the residual effects of the failed Dawes Act and ignored the purpose of the subsequent IRA.

1. The Dawes Act and the IRA

On February 8, 1887, Congress passed the Dawes Act. Named for Senator Henry Dawes of Massachusetts, the law provided for the breaking up of reservation land held in common by the members of a tribe into small “allotments” divided among the individuals. Henry Dawes graduated from Yale College in 1839 and was admitted to the Massachusetts bar in 1842. In 1875, Dawes was elected to the United States Senate where he served on the Committee of Indian Affairs. A longtime advocate for the assimilation of the Indian tribes, Dawes believed that the only way to ensure the continued survival of the tribes was by bringing them into the folds of white society and making them “civilized.” As he noted in an article published in 1899, twelve years after the Dawes Act was enacted:
Emigration was yearly swelling in numbers…It was this condition which forced on the nation its present Indian policy. It was born of sheer necessity. Inasmuch as the Indian refused to fade out, but multiplied under the sheltering care of reservation life, and the reservation itself was slipping away from him, there was but one alternative: either he must be endured as a lawless savage, a constant menace to civilized life, or he must be fitted to become a part of that life and be absorbed into it. To permit him to be a roving savage was unendurable, and therefore the task of fitting him for civilized life was undertaken.

The purpose of the Act was clear, to provide for the elimination of the reservations and end tribal dependence on the federal government while promoting the assimilation of tribal members into conventional society. Legislators hoped to complete the assimilation process by forcing the tribes to abandon their communal life-style and imposing Western values of economic independence and nuclear families. However, the small parcels were not large enough for economic viability and many were eventually sold to Non-Indians. In addition, any land deemed to be “surplus,” that is beyond what was needed for allotment, was also opened to white settlers. By the time the Act was repealed in 1934 with the enactment of the IRA, around 90 million acres of land, or two-thirds of the 1887 tribal land base, were lost and roughly 90,000 Indians were left landless. The Dawes Act also had a negative impact on the culture of Indian tribes and their ability to self-govern. The depletion of the land base effectively ended hunting as a means of obtaining food and forced men to work in the fields, typically considered to be a women’s role in Indian societies. This shift caused many tribes to shift from matrilineal to patrilineal societies, and women who enjoyed status and political importance prior to allotment became dependent entirely on their husband.
Two decades later, in 1906, Congress enacted the Burke Act amending the Dawes Act to give the Secretary of the Interior the power to issue allotees a patent in fee simple to people classified ‘competent and capable.’ The land of any allottees deemed ‘competent’ by the Secretary would lose their trust status and become subject to taxation, or could be sold by the allottee. The allotted lands of Indians determined to be incompetent were automatically leased out by the Federal Government, resulting in further loss of tribal land to Non-Indians. This pro-assimilation policy continued for twenty more years until the Department of the Interior conducted a study of the living conditions of the Indian peoples. The product of this study was The Problem of Indian Administration, or the Meriam Report, after its author Lewis Meriam. The Meriam Report listed numerous failings of the Dawes Act, from the inadequate size of the allotments to the lack of properly qualified personnel administering the trusts in the Bureau of Indian Affairs (BIA). The report also suggested that through gross mismanagement of the land trusts BIA personnel were cheating Indian allottees out of their land. It was these failings which helped to pave the way for the IRA of 1934.
Possibly the biggest proponent of the IRA was John Collier. Collier was an advocate for Indian rights, believing that the culture of the Indians must be protected from white encroachment. Collier believed that Indian survival was dependent on the retention of the tribal land base. As a result he rejected the assimilation and Americanization policies symbolized by the Dawes Act and demanded the acceptance of the cultural differences of the Native American tribes. In Collier’s opinion, the Dawes Act was a complete failure leading to the increasing loss of Indian land and his arrival as a federal Indian policy reformer was a turning point in Indian affairs. Collier attacked the BIA’s policies directly. Prior to Collier criticism of the BIA was primarily directed only at the corruption and incompetence of the personnel rather than the policies being followed. Collier fought against legislation and policies which he believed to be detrimental to the well-being of Native Americans and his work led to the study which created the Meriam Report.
The election of President Roosevelt in 1932 was the first step towards fixing the mistakes of the Dawes Act. A reform president, Roosevelt named Collier as the Commissioner of Indian Affairs in 1933. With a mind towards alleviating the conditions brought on by the Great Depression, Collier introduced the IRA to Congress. Codified at 25 U.S.C. §§461-479, the IRA reversed fifty years of assimilation policies and emphasized tribal self-determination and a return of communal Indian land. Several state and federal district courts have found that the purpose of the IRA was to foster and encourage self-government by the tribes. But the Supreme Court has failed to grant certiorari and directly address the issue. Instead, over forty years after the enactment of the IRA, and shortly after the District Court of South Dakota delivered its decision in Kleppe, the Supreme Court delivered an opinion in Oliphant v. Suquamish which struck a hammer blow against tribal jurisdiction and paved the way for more atrocious cases like Montana.
2. Oliphant and Montana
The first decision to be handed down on the way to Montana was Oliphant v. Suquamish. Justice Rehnquist delivered the majority opinion in Oliphant which held that Indian tribal courts lack any criminal jurisdiction over Non-Indians. The opinion called efforts by the tribes to exercise criminal jurisdiction over Non-Indians a relatively ‘new phenomena’ and stated that where these efforts were attempted before they were found to be without jurisdiction. Rehnquist gave as his reasoning that “Until the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure and not by formal judicial processes; emphasis was on restitution rather than on punishment.” Rehnquist ignored the fact that for the most part there were no tribal courts prior the middle of the century, until after the passage of the IRA in 1934. The IRA gave tribes the ability to form their own constitutions and court systems. Prior to 1934, the BIA had primary adjudicatory authority over disputes arising in Indian country. It was not until after the IRA that tribes even had the authority to create their courts, and rather than credit the tribes that bothered to create a court system, Rehnquist marginalizes their efforts. But Oliphant’s flaws stretch even further than that.
The opinion next cited a statement made in 1834 by the then-Commissioner of Indian Affairs, John H. Eaton. Eaton stated: “With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint.” Aside from being an observation made by a white man in the early nineteenth century, an age of little cross-cultural understanding. The statement was made 100 years prior to the passage of the IRA and over 140 years prior to the date Oliphant was decided. Ideas and perspectives on many topics changed drastically over this period of time which spanned five great American wars, as well as the Sioux Wars of the late nineteenth century. Also, the tribes had been given reservations on which to live and many formed their own functional governments and, with the passage of the IRA, their very own court systems based on the Anglo-American model. Take the Navajo Nation for example. Today the Navajo Nation boasts the largest enrolled membership and largest reservation of any of the recognized Indian tribes. The current Navajo government was founded in 1923 to facilitate access to tribal land by American oil companies. The Navajos soon expanded their government to replicate our federal three-branch system by creating both an executive and a judicial branch alongside the Navajo Council. The Navajo Judicial Branch was adopted in 1959 and resembled many state court systems in that it included trial-level district courts, an appellate court and its own police force. I grant that the Navajo Nation is certainly an outlier in that it is likely the most sophisticated of the tribes and its large population gives it access to more resources than others, but it serves as an excellent example of what the tribes can achieve if given the means. For these reasons it was error for the Court to place any reliance on the words of an executive agency officer spoken over 140 years earlier.
The other sources of the Court’s reasoning, a treaty from 1830, a single case from 1878 and a 1970 opinion from the Solicitor of the Dept. of the Interior, also do not in my opinion provide adequate support for the Court’s decision. The 1830 Treaty with the Choctaw Indian Tribe guaranteed to the Choctaws “the jurisdiction and government of all the persons and property that may be within their limits.” But the Treaty concluded with the provision that the Choctaws “express a wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation, and infringe any of their national regulations.” Rehnquist found a request for affirmative congressional authority inconsistent with the belief that criminal jurisdiction over non-Indians is inherent in tribal sovereignty. But this request was for punishing Non-Indians by the laws of the tribe, not the laws of the State of Mississippi. At the time of the decision, the Navajo court had already adopted its own version of the Model Penal Code as well as the Arizona Rules of Procedure for use in its courtrooms. The authorities cited by the Court express a concern for the constitutional liberties so fundamental to every American’s well-being not being protected. But it was for this very reason that in 1968, just a decade prior, Congress passed into law the Indian Civil Rights Act.
The Indian Civil Rights Act (ICRA) of 1968 required the Indian tribes to recognize and protect nearly all of the rights enumerated in the U.S. Bill of Rights to any person within their jurisdiction. The few exceptions include the lack of an Establishment Clause prohibiting an official religion, the lack of a right to bear arms, and the lack of a right to counsel. The Court recognized that by extending the same basic rights to anyone tried in an Indian court that “many of the dangers that might have accompanied the exercise by tribal courts of criminal jurisdiction over non-Indians only a few decades ago have disappeared.” Also considered were the increasing sophistaction of the Indian courts and their resemblance to state systems. In the end, however, the Court stated that without an express Congressional grant of authority the Indian tribes lack the jurisdiction to try and punish non-Indians.
Only four years after Oliphant, the Supreme Court handed down a decision in United States v. Montana. The primary issue in Montana was whether the Crow tribe, relying on the language in a treaty, had the authority to regulate hunting and fishing activities by non-Indians on non-Indian owned fee land within the external limits of the reservation. The author of the majority opinion, Justice Stewart, took things a step further with his rationale that the principles upon which Oliphant was based “support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Stewart did acknowledge that the inherent sovereign power of Indian tribes grants the authority to exercise some forms of civil jurisdiction over non-Indians on their reservation, including on non-Indian fee lands. These authorized forms of civil jurisdiction have become known as the ‘Montana Exceptions.’ The first of these exceptions provides that “a tribe may regulate through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” The second exception allows tribes to exercise civil jurisdiction over “the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. The Montana Exceptions have a significant impact in the realm of Indian law because they define the scope of tribal jurisdiction over non-Indians. Unfortunately, in the last 26 years the Supreme Court has found few cases where tribal courts were allowed to retain civil jurisdiction over non-Indians. As each new decision is handed down, tribal jurisdiction over non-Indians comes closer to being narrowed out of existence, and the most recent example of this is Plains Commerce Bank v. Long.
B. Long is Wrong because the cases on which it relies, Oliphant and Montana, are erroneously interpreted in light of old policies and are substantial deviations from modern Congressional intent.

The dispute in Long arose after a non-Indian bank sold fee land on the Cheyenne River Sioux reservation to non-Indian buyers. After the sale, the Longs, an Indian couple who were customers of the bank and had defaulted on their loans, claimed the bank discriminated against them by offering the land to the buyers on more favorable terms than were offered to them. The Longs sued in tribal court, which ruled against the bank and awarded the Longs damages and the right to purchase a portion of the land. The bank appealed to the Cheyenne River Sioux Tribal Court of Appeals on the grounds that the tribe lacked jurisdiction to hear the case. The tribal court’s decision was affirmed and the bank appealed again to the U.S. District Court for the District of South Dakota. The District Court granted summary judgment to the Longs after finding that the bank had entered into a consensual relationship with the Longs, thereby subjecting the bank to tribal jurisdiction under the first Montana exception. The Court of Appeals for the Eighth Circuit affirmed the decision on the grounds that the Longs’ discrimination claim “arose directly from their preexisting commercial relationship with the bank.” In the Eighth Circuit’s view, the tribe had authority to regulate the business conduct of persons who “voluntarily deal with tribal members,” including a nonmember’s sale of fee land.
The Supreme Court, after considering its decisions in Oliphant, Montana and in Strate v. A-1 Contractors , reversed the decision because the tribe lacked the jurisdiction to hear the Long’s discrimination claim. Chief Justice Roberts, writing for the majority, stated that tribes generally do not “possess authority over non-Indians who come within their borders.” Citing Strate that “a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction,” the Court held that the Tribal Court lacked jurisdiction to hear the Longs’ discrimination claim because the tribe lacks the civil authority to regulate the Bank’s sale of its fee land. Specifically, the Court determined that the tribal tort law that the Longs were attempting to enforce operated as a restraint on alienation, in this case limiting a nonmember’s sale of fee lands they own. The Court explained that the tribal court lacked jurisdiction because the first Montana exception expressly applies only to the activities of nonmembers, and that the sale of land is not an activity on land but something altogether different. The Court reasons that fee land owned by nonmembers have already been removed from the tribe’s control, therefore its subsequent sale to a different nonmember makes no difference because any harm to the tribe’s political integrity or ability to self-govern occurred at the point the land transferred out of tribal control.
There are several reasons why the Court’s reasoning is flawed. First, the Court relies on the principles set out in Montana and Oliphant as if they were clear and incontrovertible truths, when they actually mark a significant departure from the foundational case-law as of the Marshall Trilogy and run contrary to the intent congressional enactments like the IRA and the ICRA. Finally, as Justice Ginsburg points out in her dissent the majority in Long ignores the old canons of construction for interpreting Indian law by reading the unambiguous language of the Montana exceptions in such a way as to make them ambiguous.

1. The Divestiture of Territorial Sovereignty

The Rehnquist-era decisions marked a turning point in the way the Supreme Court looked at Indian-law cases. Prior to that, cases were typically determined based on the foundations laid down by the Marshall Trilogy of cases. These cases spawned the ‘implicit divestiture’ docrine, based on the notion that the tribes “domestic dependent nations” and as such enjoyed diminished sovereignty. But one of the most important principles emanating from those decisions was that the Indian tribes retained those aspects of sovereignty which were not expressly divested by Congress. As recently as 1959, the Supreme Court confirmed these principles in Williams v. Lee. In Williams, the Court held that where crimes occur on the reservation by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive. This decision was announced not even twenty years before Oliphant, where the Court applied a blanket rule prohibiting a tribe’s assertion of criminal jurisdiction over non-Indians.
Oliphant was the first case to raise the implicit divestiture doctrine since the Trilogy cases, and it laid the foundation for Montana and Strate. The Long opinion cites all three as the primary sources of their reasoning. The Court leads off by citing part of the holding of Oliphant that “the tribes have, by virtue of their incorporation into the American republic, lost “the right of governing persons within their limits except themselves. Montana then limit this authority solely to civil matters in instances where nonmembers enter consensual relationships with the tribe through commercial dealing, or where nonmember conduct threatens or directly effects the sovereign interests of the tribe. But Congress could not have intended for this level of divestment, and the current federal policy of tribal self-determination support this proposition.
With the repudiation of the Dawes Act, Congress realized that the assimilation of the tribes into our society would not work and instead promoted the reorganization of tribal governments so that they would be more like our own. Beginning with Oliphant, the Court has focused solely on the effects of the Dawes Act as the basis for perpetuating its goals. The Court’s rationale is that Congress has never expressly acted to reverse those effects. But Congress’ intent was clear that Indian country should be preserved as it was at the time the IRA was enacted. If it wasn’t clear enough for the Court in 1934, then it should have been clear by 1948 when Congress passed legislation defining Indian country as including “all lands within the limits of any Indian reservation. ” Since then Congress has modified the ICRA to extend the rights guaranteed by the Act from“any Indian” appearing before tribal courts to “any person.” These rights include most of the basic rights enjoyed by anyone in the United States court system with the additional right of habeas corpus to anyone who contests the legality of their detention by an Indian tribe. From the plain meaning of the words in these statutes, it is clear that Congress manifested its belief that lands within the external boundaries of reservations are included within Indian country and that tribal courts are competent to try cases involving non-Indians. Therefore if the Court had decided to, it could have affirmed the adjudicatory jurisdiction of the tribes and finally stopped any further damage caused as a result of Oliphant and Montana. Instead, Long just builds on top of a case for which the only authority from the 20th century was a legal opinion, which the Court knew had been withdrawn for undisclosed reasons, and diminishes further tribal sovereignty.

2. Long fits the Montana Exceptions

The Court held that the Montana exceptions did not apply to the Longs’ discrimination claim against the bank because it concerned the sale of fee land acquired from the estate of a non-Indian. The Court drew a distinction between non-member conduct and non-member activities, explaining that the first exception applies only to activities and that the bank’s sale of land was conduct rendering the exception inapplicable. The Court then said that the second exception did not apply because the bank’s conduct had no effect on did not implicate the tribe’s sovereign interests. However, this was only a 5-4 decision. Justice Ginsburg wrote for the dissent,with whom Stevens, Souter and Breyer joined, arguing that the case was not about the sale of non-Indian fee land on a reservation, but “the power of the Tribe to hold nonmembers like the bank to a minimum standard of fairness when they voluntarily deal with tribal members. ” It was Justice Ginsburg’s opinion that in this context it was within the tribe’s authority to adjudicate the Long’s claim.
After the bank appealed the tribe’s judgment to the federal courts, the District Court found that the contract between the bank and the Longs both created the requisite consensual relationship and that it “clearly involved the economic security of the tribe. The District Court based these findings on the facts that after Kenneth Long died and the land was deeded to the bank, the bank took part in discussions concerning the new loan agreement with the Longs and CRST Tribal officers at the CRST Tribal offices on the reservation. The District Court cited the CRST Court of Appeals opinion that:
This case is the prototype for a consensual agreement as it involves a signed contract between a tribal member and a non-Indian bank. The contract deals solely with fee land located wholly within the exterior boundaries of the reservation. Fee land that was originally owned by the Longs, but owned by the Bank during the controverted events in this lawsuit. All bank loans in this matter were provided solely for the ranching operation by the Longs taking place on the Bank’s land within the reservation. Numerous meetings of the Bank with the Longs, with Cheyenne River Sioux Tribal Officials, and Bureau of Indian Affairs personnel took place on the reservation, both when the land was owned by the Longs and subsequently when it was owned by the Bank.

The District Court also found that the economic security of the tribe was affected in that it (along with the BIA) was a direct participant “actively consulted by both the Longs and the Bank seeking economic data and support relevant to the cattle operation on the Longs’ land. The District Court reasoned that if the economic security of the tribe was not involved, then it would not have had such a large role in these events in seeking to support and advance the opportunity for tribal members to succeed in their ranching operation.
Ginsburg’s dissent focuses on many of these same facts. She writes that unlike Strate, this was a clear case of a consensual relationship. The dispute in Strate, the Court said was “distinctly non tribal in nature” Because it “arose between two non Indians involved in a run of the mill highway accident. ” Although the defendant in Strate was engaged in subcontract work on the reservation, and therefore had a “consensual relationship” with the tribe, the plaintiff there was not a party that contract, thus it was not a tribal matter. Lending strength to Ginsburg’s point is the fact that she also authored the opinion in Strate, so she is in the best position to explain the reasoning behind it. She points out that although the Long family operation (the Long Company) was incorporated in South Dakota, it was “overwhelmingly tribal in character, as were its interactions with the bank. ” The Long Company is a closely held corporation and CRST members have controlled at least 51% of its outstanding stock at all times. Such Native American control was necessary in order for the Long Company to qualify for BIA guarantees which allowed the bank to make loans to the Longs at greatly reduced risk. In fact, after the Longs’ cattle died in the winter of 1996-1997 the bank submitted a claim on those guarantees and received $392,968.55 from the BIA. The District Court found, and Ginsburg agreed, that the loan agreements between the bank and the Long Company were not only crafted with tribal membership in mind; they would not likely have been possible without it.
Ginsburg observed that the Longs’ discrimination claim was based on the allegedly unfair conditions resulting from the bank’s failure to provide the loans necessary to sustain the operation of their ranch. She cites again to Strate where it was explained that Montana’s consensual-relationships exception justifies tribal court adjudication of claims “arising out of on-reservation sales transactions between nonmember plaintiffs and member defendants. How should it be different between member plaintiffs and non-member defendants?
The Majority in Long noted the absence of any case law specifically finding that Montana authorized a tribe to regulate the sale of non-Indian fee land. But then why does Montana’s list of examples of valid consensual relationships that tribes might have have authority over include “commercial dealing, contracts and leases. If the Court had intended land sales to be excluded from this then it could have easily said so, but it did not. And why would a tribe’s enforcement of an antidiscrimination claim be less important to tribal self-rule when it relates to the sale of land than in other contractual relationships?
C. C. Long is Wrong Because the Consensual Relationship Exception is an Inappropriate Restriction on the Tribes’ Ability to Self-Govern.

In most peoples’ minds, the notions of sovereignty and self-determination would include the power for a state to subject any outsiders who come within its borders to governmental authority. As I cited before however, in Oliphant the Supreme Court held that “the tribes have, by virtue of their incorporation into the American Republic, lost the right of governing persons within their limits except themselves.” But this does not reconcile itself with the position of the States when they entered our Republic. Surely we know that the States may exercise personal jurisdiction over non-residents in instances where the conduct or activities of those persons takes place within the state’s borders. So why are the tribes treated differently?
Perhaps it is because the Anglo-American judicial system emerges from a culture so drastically different than that of the Indian tribes. This could cause some concern with the Court about potential litigants having fair notice that they will be subjected to the authority of the tribal courts. This seems a valid concern because average Americans, or other non-Indians, may lack any knowledge or information about the laws on Indian reservations so that to subject them to the jurisdiction of tribal courts would be a violation of their right to fair notice under the Due Process Clause.
Smith v. Salish Kootenai College , the Ninth circuit relied on Williams and Hicks to determine that the “consensual relationship” test for civil tribal jurisdiction resembled the Due Process Clause analysis for personal jurisdiction used in federal courts. This begs the question, then, what are the federal standards? In the benchmark case of World-Wide Volkswagen Corp. v. Woodson , the Supreme Court gave us the ”minimum contacts” rule. In Woodson, the Court reaffirmed that a state court may exercise personal jurisdiction over non-resident defendants only so long as the defendant maintains “minimum contacts” within the forum state. The Court said that this rule protects defendants against litigating in distant or inconvenient forums and ensures that the States do not reach out beyond the limits imposed on them by their status as co-equal sovereigns in a federal system.
The Court made clear that this protection against inconvenient litigation means “reasonableness” and “fairness,” such that defendant’s contacts within the forum state must be such that maintenance of the suit “does not offend traditional notions of fair play and substantial justice.” In addition, courts considering this should consider other factors such as the form state’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief , but the Due Process clause may sometimes divest a forum state from its power to render a valid judgment, notwithstanding these factors if the defendant has no contacts within that state.
So what are these “minimum contacts?” According to Woodson, the threshold must be something more than mere foreseeability of being brought before the forum state’s courts. Rather, similar to the situation in Long, a corporation was brought before the forum state and challenged the state’s jurisdiction to hear the case. The Supreme Court stated that when a corporation purposefully avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there. Thus, the forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.
This is clearly analogous to the circumstances in Long, where the bank knowingly engaged in a transaction with an Indian-owned enterprise, the transaction took place on the reservation, the bank regularly dealt with other Indian customers, and the terms of the disputed agreement were negotiated with the Bureau of Indian Affairs at CRST tribal offices. This should be more than sufficient contact within the reservation to support the exercise of tribal jurisdiction if the standards laid down in Woodson applied to tribal courts in the same manner as they do for the states. Moreover, it would certainly have been enough for the Supreme Court to affirm tribal authority under Williams v. Lee where the Court held that it would undermine tribal courts’ authority over reservation affairs and infringe upon the right of the tribes to govern themselves to allow the exercise of state jurisdiction where a non-Indian was on the reservation, and the transaction took place on the reservation.
For tribal jurisdiction though, the consensual relationship must stem from “commercial dealing, contracts, leases, or other arrangements,” and it requires that the tribal authority imposed bear a nexus to the consensual relationship itself. Relative to the authority granted to the states to try non-resident defendants, this is a much higher standard. Under Long, the two standards should make no difference because, to me, in this case the facts support an exercise of tribal jurisdiction either way. The consensual relationship exception in this case should have been no more than just an annoying obstacle, but, in this case and in many other tribal jurisdiction cases, it has utterly precluded Indian tribes from exercising jurisdiction over nearly all non-Indian activities on reservations. How can this be an appropriate rule for the Supreme Court to follow?
The real question is what interests are we promoting by continuing to use this ridiculously stringent standard? The Supreme Court has waved the flag of fair notice as its primary justification in denying jurisdiction to the tribes in both civil and criminal matters. But this is a more recent development, starting with Oliphant. It is important to mention that the Court never expressed these concerns in civil cases prior to Oliphant. In fact, in Williams v. Lee the Supreme Court found it perfectly reasonable to hold a Non-Indian defendant liable in a tribal court for conduct occurring on the reservation. For the early part of the twentieth century even it can be argued that there existed an attitude within federal courts that tribal civil jurisdictions over Non-Indians was perfectly acceptable.
A pragmatic approach is a far better solution to the problem of modern federal Indian law. I think if view things realistically or with a little more common sense and stay away from creating complicated or outdated legal fictions we would end up with something much more workable for both the United States and the individual Tribes. The case that feel is the best example of this view would be the Eighth Circuit decision in Buster v. Wright all the way back in 1905. The case in Buster involved a dispute between the Creek Nation and a group of Non-Indian traders who were conducting their business on the Creek reservation. There, the Creek Nation levied a permit tax on non-citizens (of the tribe) for trading within its borders, but the traders contested the tribe’s authority to require the payment of the tax. The case proceeded through the tribal courts up to the Eighth Circuit, which affirmed the tribe’s ability to levy the tax on Non-Indians.
The traders in Buster contended that the authority of the tribe to levy such a tax was limited by the fact that they owned the land that their businesses were located on and that the tribe had lost title to it. However, the Eighth Circuit held that the power to levy such a tax was “one of the inherent and essential attributes of their original sovereignty…a natural right of that people, indispensable to its autonomy as a distinct tribe or nation.” In making this decision the court noted that Congress of course had the power to take the Creek Nation’s authority to tax non-Indians away, but until then it remained within the scope of the tribe’s power. The Court also emphasized that it found the tribe to be well qualified to levy such a tax based in part on the fact that the Creek Nation had modeled its Constitution after our own and adopted a three-branch system of government as well.
The traders presented the arguments that because the properties in question were owned by non-Indians or because they were located within distinct non-Indian towns or settlements on the reservation that they were exempted from the tribal tax. But the court rebuffed these assertions by stating that “Neither the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities…nor by the ownership, nor occupancy of land within its territorial jurisdiction by citizens or foreigners.” Rather the Justice Sanborn determined that “the payment of [the] tax is a mere condition of the exercise of [the] privilege [of trading on the reservation]. No noncitizen is required to exercise the privilege or to pay the tax. He may refrain from the one and he remains free from liability for the other.” This represents a polar opposite view of that taken by the Rehnquist Court in Montana and Oliphant, and in my opinion, a view that actually makes sense. Though Buster was essentially a tax issue, the analysis and logic translate easily to a discussion over tribal jurisdiction.
It should also be noted that in Buster the Creek Nation’s sole means of enforcing its tax against the traders was to have federal agents come onto the reservation and shut down the offending businesses. The traders relied on a Congressional enactment for their initial cause of action. An appropriations act for the Indian Department, dated May 27, 1902, also included that “it shall hereafter be unlawful to remove or deport any person from the Indian Territory who is in lawful possession of any lots or parcels of land in any town or city in the Indian Territory which has been designated as a town site under existing laws and treaties.” The traders relied on this to argue that the closing of their businesses was a violation of their rights under the Fifth Amendment and deprived them of life, liberty, or propert without due process of law. But, after determining that the tribe had lawful authority to levy their permit tax on the traders, the Eighth Circuit held that “Every noncitizen who continues to trade after his refusal upon reasonable demand to pay his permit tax is a continuous violate of [the] law…and he has no personal or property right to violate that or any other valid law. Hence the mere stoppage of that violation, the mere closing of his unlawful business…impinges upon no right of life, liberty, or property which he possesses.”
Relying on an U.S. Attorney General’s Opinion that the 1902 law did not, nor was intended to, limit the tribe’s authority to enforce its tax upon non-Indians within the reservation, the Buster court reached the final conclusion that “purchasers of lots in town sites in towns or cities within the original limits of the Creek Nation…are still subject to the laws of that nation prescribing permit taxes for the exercise by noncitizens of the privilege of conducting business.” In my opinion this is a rational opinion that embodies an understanding of general facts of life and I believe it is especially relevant to both the Long decision and to the very state of Federal Indian law in general. Granted, Buster was a tax case rather than a jurisdictional, but then so was Montana. If the Supreme Court had only decided Montana on the basis of whether the Crow tribe had the authority to charge non-members for hunting permits, rather than whether the it had jurisdiction over non-Indians, we may have been in a vastly different state of affairs today.
In addition, the facts of Buster and Long can be easily analogized. Both involved commercial enterprises that conducted business transactions on the reservation knowingly and intentionally. The view presented was pragmatic and more necessary now than ever before given the complex nature of the animal that Indian law has become. And the decision in Buster came in 1905, before the IRA and well before the ICRA. This shows us that there were judges who believed that the tribes were competent enough in their authority to regulate the conduct of Non-Indians within the boundaries of Indian reservations, and that it would probably not be a radical concept. The later repeal of the misguided Dawes act with the passage of the IRA makes it easy to infer that tribes exercising civil jurisdiction over disputes involving Non-Indians and arising in Indian country would also have been acceptable to these judges if they were sitting at the bench today. Surely this attitude was confirmed when Williams was handed down in 1959. And it can be further argued that the passage of the ICRA only a decade after that was actually a Congressional affirmation of tribal authority in this regard.
Montana’s consensual relationship exception arose from Oliphant, but it seems to me that the only foundation for the decision in Oliphant arose from the 1834 opinion I referred to earlier which read: “With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint.” This is why the consensual relationship exception is an inappropriate restriction on tribal sovereignty. Tribal judicial systems have advanced dramatically in the last 80 years. In most cases they virtually mirror their Anglo-American counterparts in form and function. Many tribes have also adopted similar civil codes to the states in which their reservations lie.
The Navajo Nation, for example, possess the largest reservation in the country, occupying parts of Utah, New Mexico and a large portion of Arizona. The Navajo Judicial system consists of an appellate court, the Supreme Court of the Navajo Nation, and numerous trial-level district courts. The Navajo Nation has also adopted its own version of the UCC and utilizes a unique Peacemaking Program much akin to court-appointed mediators in other states. While small cultural differences may exist, even between tribes, they cannot be said to be substantially different from the differences that exist between the states to the extent that it would be unfair or prejudicial to subject a Non-Indian who is conducting his affairs within the boundaries of their reservation to tribal jurisdiction. The Supreme Court has said that absent a Congressional Enactment, it cannot give the tribes these powers. But Congress has acted. The passage of the IRA was an expressed Congressional desire that the tribes, and their sovereignty should remain. The ICRA supplied them with the procedural tools and safeguards to try non-Indians. Their laws are familiar to Non-Indians and the courts are competent, and the continued reliance on the consensual relationship exception is gradually eroding what little remains of tribal sovereignty. But the Supreme Court turns a blind eye to these developments and continues to use and rely on the Trilogy cases, whose only seemingly rational authority is 175 year old statement made by a BIA official that reeks of racist overtones.
Further, the consensual relationship exception is inappropriate because it clearly complicates the judicial process with its apparently ambiguous language. The exception cases that have come since Montana have shown us that the Supreme Court apparently did not mean what it said with seemingly plain language. The decision in Long only affirms this conclusion. If a bank that regularly does business with Indian clients on reservation and who negotiates these transactions through the BIA can’t be said to have a consensual relationship with the tribe that would subject it to the authority of tribal courts, then what is the purpose for having such an exception is the first place? Rather, I think we need to start with a clean slate and start over by taking a hard look at the foundations of federal Indian law and the Buster decision. The Buster decision represents rational and sensible thinking, and it expressly affirms the inherent sovereignty of the tribes while at the same time giving them the means to enjoy and utilize that sovereignty.
In the spirit of the IRA and the basic principles that provide that the tribes possess attributes of inherent sovereignty not divested by Congress, Long was wrongly decided. The Court based its decision solely on the effects of policies and perspectives that have been expressly repealed by Congress. Rather than respecting and fostering tribal sovereignty, Long has done more to create an illusion. If there is ever any hope for tribal courts to possess real authority over non-Indians, it is up to Congress to express it in terms clear enough for the Court to understand.

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Signed DVD copy of “Ghosts of Sand Creek”, DVD copy of the award-winning “The Sand Creek Massacre”. Listing on lobbyist list to present to Congress, unless you note that you do not want to be

$500 VIP

Signed DVD copy of “Ghosts of Sand Creek”, DVD copy of the award-winning “The Sand Creek Massacre”, invitation to wrap party. Listing on lobbyist list to present to Congress, unless you note that you do not want to be on the list.

$2,000 VIP Contributor

Signed DVD copy of “Ghosts of Sand Creek”, DVD copy of the award-winning “The Sand Creek Massacre”

Invitation to wrap party

List on web site as VIP Contributor.

Listing on lobbyist list to present to Congress, unless you note that you do not want to be on the list.

$5,000 VIP Donor

Signed DVD copy of “Ghosts of Sand Creek

“DVD copy of the award-winning “The Sand Creek Massacre”

Invitation to wrap party

List on web site as VIP Donor

Film credit

Listing on lobbyist list to present to Congress, unless you note that you do not want to be on the list.

$10,000 VIP VIP

Signed DVD copy of “Ghosts of Sand Creek”

DVD copy of the award-winning “The Sand Creek Massacre”

Invitation to wrap party

List on web site as VIP VIP

Film credit as Executive Producer

Listing on lobbyist list to present to Congress, unless you note that you do not want to be on the list.

As a stepping stone to help native people in America, I am making a documentary film about peace treaties from 1825 through 1890 the Cheyenne and Arapaho Tribes agreed to without legal representation, with the United States government.  By betraying these agreements, the United States government and private individuals bilked the Cheyenne and Arapaho people out of 51 million acres of land. The government and these individuals have amassed billions of dollars in profit from these lands via natural gas, oil, lumber, farming, ranching, land patents, securities, animals, goods and provisions, mining, etc.

In return, the Cheyenne and Arapaho people have experienced white man diseases, abject poverty, hunger, alcohol and drug abuse, high unemployment, lack of appropriate housing and health assistance, lack of
education, homelessness, racism, genocide, discrimination and, for many, not enough resources to even
buy toilet paper.  Many of them, including thousands of other native people live in Third World conditions, in the United States of America. While the U. S. government pours billions of dollars into other countries and regions of the world like Darfur to help them out, they let America’s natives suffer.

I ask the questions, what about America’s native people? Without taking care of Indian people in the United States of America, what chance does America have to survive?

It is time, now, to act. Enough of broken promises, self-interest, and greed, America’s natives must take charge of their lives, or they will leave this earth forever.

In order to educate, to inform, and to create awareness for all native people in America, the American Indian Genocide Museum and the 15,000 members of the Sand Creek Massacre Descendant’s Trust are giving support to my film, “Ghosts of Sand Creek.” This film will show the deprivations and depredations most all native’s ancestors suffered at the hands of the United States government.  This film will be told through the eyes of the Cheyenne and Arapaho people via their oral histories.

The intentions of the film is to gain enough exposure to force the United States government to fulfill its obligations regarding the 1867 Treaty of Little Arkansas, to make reparations for monies, land, and goods by the United States government to the Cheyenne and Arapaho tribes to complete their duty according to this particular treaty.

Success here will cause a domino effect that will cause the government to fulfill its duty to fulfill its obligations regarding other peace treaties throughout the land. In turn, the reward of monies owed to all native tribes can result in combating disease, improve education, destroy poverty,hunger, high unemployment, homelessness, health assistance, racism, genocide, discrimination, and the ability
for everyone to buy toilet paper.

It is past time for America’s native people to rise up and transcend these problems and make a prominent place for themselves in their country.  With the newly-elected administration, I believe that this is even more
likely than ever before. But, I need your support.

“Ghosts of Sand Creek”, is a two-hour, six episode documentary film about the descendants and ancestors of the Sand Creek Massacre, which occurred on November 29, 1864 in the southeastern Colorado Territory, is in development.

Coming on the heels of the award-winning Sand Creek Massacre trailer, the award-winning six and one-half minute documentary and the award-winning 22-minute documentary, that is being distributed by Films Media Group, “Ghosts of Sand Creek” is delving more deeply into the Cheyenne and Arapaho people and how the massacre has stalked them up to the present time.

I am writing to ask each one of you to help me raise the money to make this film to helpout those who are less fortunate than we are. The budget is $2 million. It is my belief that I need to keep pushing until I realize
my goal of helping out America’s native people the way I can, and that is through filmmaking which creates massive exposure for America’s natives.

Until money is place for “Ghosts of Sand Creek”, I am unable to mention names. I can say that I have attached a major motion picture actor to the film, an Academy Award-Winning Cinematographer and Filmmaker, five Emmy Award winners, and one Emmy Award nominee.  They have agreed to work on the film because of their passion for helping out America’s natives.

Please tell your friends. Thank you for your consideration and support.

Best Regards,

Donald L. Vasicek
OLYMPUS FILMS+, LLC
Writing/Filmmaking/Consulting
http://www.donvasicek.com
dvasicek@earthlink.net
303-903-2103

“We’ve used a passive approach to the telling of the brutality at Sand Creek for the purpose of showing the ignorance of utilizing killing as a means to solve problems. Violence always leaves an impact, but the graphicness of the murders, the rapes, the mutilations, even after people were dead, leaves a remarkable imprint on students, parents, and educators. They see an historic reality that motivates them to do more to circumvent violence in the present as a means to solve problems. And that includes fourth graders who viewed the film in an elementary school in Centennial, Colorado who shared their thoughts with me after the screening.”

-Donald L. Vasicek
Award-Winning Writer/Filmmaker/Consultant

“We Cannot Be Who We Are Not” “Always keep in mind that the main issue which has led to so many other issues is land. The earth has always been the Cheyenne/Arapaho’s power. As their lands dwindled because of European immigration, their power dwindled.  Today, most older, and many younger Native Americans are living without that power. Instead, they are living on reservations that yield little, ifany resources. This has reduced Native Americans
to a cross between their native heritage and the incursion of others into their space. Many know little about moving forward, because the past is where all of their power resides, and, it is gone.

Native Americans are born to roam the earth.  Many of their ancestors went where the buffalo went. The buffalo were the source of their existence. In the beginning, the Cheyenne and Arapaho people had 51 million acres of land. They were free. They lived with the elements and they prospered. Today, most conceive themselves as prisoners of a society that has little bearing to who they really are, what they inherited from their ancestors, not too unlike each one of us.  How can we be who we are not? The answer is, we cannot be who we are not, and until we discover who we are, then live that way, is when we experience the ultimate peace of who we are. It is my belief that most Native Americans are not who the society they live in forces
them to be, in order to survive.

So, if you surround yourself with this attitude, with this approach, with this theme, then, everything else you are being asked about which to understand, will fall into place.”

-Donald L. Vasicek

“Award-Winning Sand Creek Massacre Film Archived”

August 27, 2008 — CENTENNIAL, CO — Golden Drover Award winner for Best Native American Film in the Trail Dance Film Festival, “The Sand Creek Massacre”, has been archived in The Billie Jean Baguley Library in the Heard Museum in Phoenix.

Award-winning Writer/Filmmaker/Consultant, Donald L. Vasicek,
said, “By having the film archived in these prestigious institutions,
my goal of informing, educating and creating awareness for the
Cheyenne and Arapaho people via their oral histories in the film,
helps all American native people. The Cheyenne and Arapaho
people, vowed, after the Sand Creek Massacre, that they would live
on this earth forever. The film keeps their dream alive regardless
of the genocide that has stalked all American native people from
the inception of European people’s arrival on their lands to the present.
The film is a permanent recording of their ancestors and who they are as
a people.”

Vasicek continues his efforts to record the Cheyenne and Arapaho
history. He has placed, “Ghosts of Sand Creek”, a two-hour, six
episode series, into development. Vasicek said, “Ghosts of Sand
Creek” will dimensionalize the Cheyenne and Arapaho people’s
story. It will show the white man’s continuing invasion of their human
rights.

“I read recently where actor Brad Pitt raised $500,000 for
people in Darfur. He should now raise money for American native
people so that they can also eat. Walk down the main street
in Lame Deer, Montana, on the Northern Cheyenne’s reservation.
Cruise the Northern Arapaho Wind River Reservation in Wyoming.
American natives on the Pine Ridge Reservation in South Dakota
need groceries, socks, underwear, shirts, shoes, trousers, fuel to
keep warm, etc. And they have to go across the border into
Nebraska to buy liquor. You will experience, as I have, many times
over, the abject poverty American natives experience. This is
genocide at its finest in all centuries.”

Vasicek said, “America’s native people need America’s help. Be part
of ‘Ghosts of Sand Creek’.” Go to donvasicek.com for details.

Contact:

Donald L. Vasicek
Olympus Films+, LLC
http://www.donvasicek.com
dvasicek@earthlink.net

June 18, 2008 – Centennial, CO – Donald L. Vasicek, award-winning writer/
filmmaker for the Sand Creek Massacre documentary film recently traveled to
Europe.  Amongst his stops was Dachau, a Nazi concentration camp about nine
miles or fifteen kilometers northwest of Munich.  Vasicek, known for his campaign
to educate others about American native people, nevertheless, was stunned by
what he saw and experienced at Dachau and in Anne Frank’s house in Amsterdam.
Part of his notes are as follows:

“To escape from Dachau, one had to sprint across an eight-foot wide
strip of grass.  The grass was nurtured there for prisoners  It encircled
the interior of the camp.  If one stepped on the grass, they were shot.  If
one made it past  the grass to a v-shaped cement moat that also surrounded
the interior of the camp, they had to scamper down into the moat, up the other
side of it to barbed wire that was spread on up-sloping ground.  An, at least
ten-foot high electric fence with barbed wire curled on top of it like large circles
drawn with barbed spikes on it, was the last barrier to escape from a place
where an estimated 50,000 human beings were murdered.

As I toured the camp and listened to the tour guide’s description of the camp,
what was there, and what is presently there and why, I felt like I had stepped
into the past.  All of the books I had read,  all of the movies and documentary films
I had seen, all of what I had learned about that horrific time, came to the surface there.  I got a
dose of reality.  I could feel the terror, the pain, and the sorrow.  I constantly
asked myself, how could anyone create such a horrifying place?  I was stunned
to realize how real Dachau had been, how much hate had been generated to mask
the reality of breathing human beings.

When I walked up to the crematorium, I traced the steps of prisoners who could
no longer work or work, like women, children, elders, the sick, prisoners who were gay,
prisoners who were gypsies and other “throwaways”, as Nazis often called them.

The first room was the room where prisoners had to strip themselves naked.  Then, they
walked to the next room, which had a lower ceiling than the rooms in the rest of the building
and no windows.  They were told they were going to take showers, but instead, poison
pellets were dropped into the room in two hinged box-like containers in one wall that
were filled with the pellets from outside of the building.

Think about that.  Just think about that.

The next room was the crematorium.  I stood in front of the ovens as the tour guide
explained that towards the end of the war (World War II), the Nazis escalated the job, or
as they called, the final solution.  They backlogged at Dachau.  The tour guide showed us
how bodies were piled up, both inside and outside of the crematorium waiting to be
burned.  Pictures taken at the time were prominent there.

I stepped back from the photos.  I realized that anywhere I stepped, I stepped where
Nazis and people condemned to death by ignorance had either once stood, or lay.  I
know I am unique, different, because there is no one else who is me.  I just don’t like
the idea that killing is a solution to solving problems.  Genocide is ignorance based on
fear.  And according to some, fear is the second most powerful human emotion next to love.

The tour guide mentioned that the German people, as recent as 1999, had decided to
“come out” with their horrific past.  German children are now required to study World War II
Nazism and come to the camps to learn.  The tour guide said the reason the German people
had waited so long to “come out” was because of their shame for the
terror  and devastation the Nazis had perpetuated on millions of others.

It is time, now, for the American people to do the same thing.  We must come out
of our shame and stop genocide in America.  That is the very least we can
do for the native people of America.  Our children must learn about native people,
their cultures, their history, and who they are as human beings so that they can relate
to them as human beings.

No one is better than anyone else regardless of achievements, social standing, religion ,
culture, race and/or material wealth. We are one because  we are human.  We are a collectiveness
consciousness.  When we hurt someone, we  damage that consciousness.  This, in turn, causes
all human beings to lose some of the positive energy this kind of
consciousness brings to each one of us.  .

If one isn’t convinced, walk in the hidden recesses of a building next to Princes Gracht Canal
in Amsterdam where thirteen year-old Anne Frank hid from the Nazis with her family for three
years until they were betrayed and sent to camps. Walk in the rooms.
I did.  Guess what?  Anne Frank was a talented girl, a writer, a young person with
dreams and goals.  A Jewish girl who loved her family more than anything else
in her world.  A human being.

Feel her there.  Feel the terror.  Anne Frank, at age sixteen, died from typhoid in a concentration
camp because of ignorance fueled by fear.  Genocide in its finest form.

Then, there is the Sand Creek Massacre.  I’ve been at the site several times.  Sat in the grass
by Sand Creek, camera in hand, alone, recording sounds, the sun warm on my back.  I felt like
others were there.  You know, invisible, but there.  Perhaps apparitions, if I looked hard enough.
On November 29, 1964, there were over five-hundred Cheyenne lodges there, perhaps a thousand
or so Cheyenne people, seven-hundred soldiers, their horses, their equipment, their canons,
their guns, their sabers, and Indian dogs and horses.  Their ignorance.  Their fear.  Their  hate.
And there was murder there.  Rape. Mutilations.  Carnage.

There is a prominent person who has done work at the Sand Creek Massacre Site.  I asked
her if she ever “felt” anything while she was there doing her work.  She said, “No, not really, but I’ll
never go out to the site at night.”  I asked her why.  She said, “I don’t know why, I just won’t go.”

You might want to check it out, see how it makes you feel.  Perhaps it can remove you,
even for a moment, from your reality and plunge you in the depths of losing sight of who
human beings, all human beings really are, human beings, just like you and me.

####

Contact:

Donald L. Vasicek
Olympus Films+, LLC
http://www.donvasicek.com
dvasicek@earthlink.net
303-903-2103