Siletz News - 2023 February - excerpts from the Newspaper of the Confederated Tribes of Siletz Indians

Siletz News, February 2023
https://www.ctsi.nsn.us/siletz-news/

SILETZ NEWS

Experts say lawsuits pose greatest
threat to tribes in decades
Betting and adoption cases take aim at tribal sovereignty, experts say
By Karina Brown, Underscore News

Editor’s Note: This story was produced through a collaboration between The
Oregonian/OregonLive and Underscore News. The Data-Driven Reporting Project
supported Underscore’s work on this story.
A lawsuit in Washington state and another case before the U.S. Supreme Court are
part of a coordinated campaign that experts say is pushing once-fringe legal theories
to the nation’s highest court and represents the most serious challenge to tribal sover-
eignty in over 50 years.
Maverick Gaming, which operates 19 card rooms in Washington and casinos in
Nevada and Colorado, is challenging a 2020 law that allows sports betting only on tribal
lands. The lawsuit, filed in federal court in Washington state, claims the law created a
“discriminatory tribal gaming monopoly.”
But it goes further, arguing gaming compacts between Washington state and tribes
are based on race and therefore discriminate unconstitutionally against people who
run non-tribal casinos. The argument takes aim at the inherent right of tribal nations
to govern themselves and at centuries of U.S. law that recognizes tribal governments’
political parity alongside their state and federal counterparts.
Advocates and legal experts say the Maverick case and others like it threaten a
return to the Termination Era policies of the 1950s, when the U.S. government sought
to end the political status of Indigenous tribes forever.
The most prominent of the cases, argued before the U.S. Supreme Court in Novem-
ber, focuses on the right of Native American families to have preference over non-Native
families in the adoption placements of Native kids.
As in the Maverick case, the plaintiffs in Brackeen v. Haaland claim the preference
is based on race, rather than the political sovereignty of tribal nations. A ruling in their
favor could fundamentally rewrite the way the U.S. government regards tribal nations,
casting policies created by treaty or agreements between sovereign nations in doubt.
“It could have really big impacts on basically every law Congress has passed that
has to do with tribes and tribal citizens,” said Rebecca Nagle, a journalist, citizen of
the Cherokee Nation and host of the
This Land podcast, which explored the Brackeen
case in detail. “It’s really the legal founda-
tion for the rights of Indigenous nations
in this country.”
The two cases share a set of underlying
arguments based on the idea that federal
laws that outline the U.S. government’s
obligations to Indigenous nations, includ-
ing the Indian Child Welfare Act and the
Indian Gaming Regulatory Act, violate the
equal protection clause of the Fourteenth
Amendment. Those bringing the cases
argue that such laws are racially discrimi-
natory – against non-Indigenous people.
The political status of tribal nations is
laid out in the Constitution and affirmed
by hundreds of years of legal precedent.
The U.S. government had to negotiate
and, in nearly 400 cases, sign treaties with
Native American tribes because of their
political, cultural and military strength.
Just as the federal government honors the
treaties it has signed with France or Ger-
many, it’s bound by those it has agreed to
with sovereign Indigenous nations.
“You don’t make treaties with a race or
an ethnic group,” said Daniel Lewerenz, an
assistant law professor at the University of
North Dakota and attorney with the Native
American Rights Fund. “You make treaties
with a political entity, with a sovereign.”
That relationship – one between political
entities – has been the way U.S. and Euro-
pean leaders have negotiated with tribal
nations since before the country’s founding,
according to Lewerenz, a member of the
Iowa Tribe of Kansas and Nebraska.
Old arguments gain ground
The arguments in both the Maverick
and Brackeen lawsuits echo claims made
for decades by groups seeking to end tribal
sovereignty.
One such group is the Citizens Equal
Rights Alliance, which attacks tribal
sovereignty on the basis that the federal
laws enshrining it discriminate against
everyone who isn’t a member of one of the
574 federally recognized Native American
tribes in the United States.
“How does the federal government
promote tribal sovereignty and not discrim-
inate against the rest of us?” asked Lana
Marcussen, CERA’s attorney for 25 years.
A 2018 report by the Montana Human
Rights Network listed CERA as an anti-
Indigenous hate group. (CERA rejects the
label.) Travis McAdam, the researcher
who authored that report and has been
monitoring anti-Indigenous groups for
decades, said CERA is the major national
advocacy group for a dispersed anti-
Indigenous movement mostly made up of
small, local groups who focus on specific
tribal sovereignty issues like water rights,
casinos or hunting and fishing rights.
“Anywhere there is a local organi-
zation or community members that are
opposing tribes on tribal sovereignty or
basically anything, eventually CERA is
going to show up,” McAdam said. “At its
core, the anti-Indigenous movement is
about destroying tribal sovereignty, getting
rid of tribes and erasing tribal culture.”
In effect, CERA has for decades nur-
tured ideas long rejected by Congress,
the courts and a succession of U.S. presi-
dents. But within the current climate of
rising extremism and white nationalism,
McAdam worries a major ruling would
bring them back into the mainstream.
“Anti-Indigenous groups have used
those talking points for decades, but the
idea that tribal sovereignty and treaty
rights somehow penalize nonmembers –
that argument fits into mainstream circles
now much better than it did a decade ago,”
McAdam said.
In the Termination Era beginning in
the 1950s, the federal government enacted
policies based on a viewpoint similar to
the one espoused by CERA and Mar-
cussen: that Indigenous people should
assimilate into American society and give
up their Indigenous identities, and that the
rights negotiated in treaties and codified
in federal laws were preventing them from
doing so.
Congress quickly passed 46 laws
terminating 109 tribes around the United
States, including 62 in Oregon – more
than any other state.
The result was disastrous for Native
Americans.
Termination unilaterally dissolved
tribal membership and ended the U.S. gov-
ernment’s obligations toward terminated
tribes, including the services guaranteed
in treaties in exchange for land. Termina-
tion policies also allowed the government
to seize millions of acres of tribal lands
rich with minerals and timber.
“The justification for termination
was that the federal trust responsibility
between the federal government and tribes
was holding Native Americans back,”
Nagle said. “It’s just kind of a rinse and
repeat argument, that equality for Native
people is treating Native people the same
as everybody else. That’s a very coded way
to talk about erasing the special trust rela-
tionship that the U.S. federal government
has with tribes.”
Members of suddenly landless tribes
scattered, with many moving from their
former reservations to cities under federal
relocation policies aimed at forcing assim-
ilation. Termination caused dire social
disarray and further impoverishment. For
the leaders of terminated tribes, it also
squashed the ability to prevent such harm.
All three branches of the U.S. govern-
ment firmly repudiated termination policy
in the 1960s and ’70s, pushing proponents
to the political sidelines. Two presidents
from opposing parties refused to enforce
termination, the courts reaffirmed treaty
rights, and in 1975 Congress replaced
it with the current federal tribal policy
known as self-determination.
Indigenous leaders and activists
pushed for more protections of their
rights, and Congress soon passed more
laws, including the Indian Child Welfare
Act, the Indian Healthcare Improvement
Act, and the American Indian Religious
Freedom Act.
And after decades of work, many ter-
minated tribes eventually won back federal
recognition of their sovereignty – but not
their land, in most cases.
So modern-day efforts to undermine
tribal sovereignty ring familiar to people
like Lewerenz, the Native American
Rights Fund attorney.
“The people who have tried to get
whatever it is that Indians have – whether
that’s land or fish or children – have always
done so by trying to claim the mantle of
equality,” Lewerenz said.
Key cases share attorney
Maverick Gaming and Chad and Jen-
nifer Brackeen are also backed by the same
legal team.
The Brackeens are challenging ICWA,
a 1978 law that requires caseworkers to
give preference to Indigenous families
in foster and adoption placements of
children who are members of a federally
recognized tribe.
The law was aimed at correcting cen-
turies of injustice.
Between 1819 and 1969, the federal
government took many thousands of
Indigenous kids from their homes and
forced them to attend brutal schools
that employed “systematic militarized
and identity-alteration methodologies,”
according to a report released by the U.S.
Department of the Interior in May.
After the federal government ended
mandatory attendance at American Indian
boarding schools, officials continued to
remove overwhelming numbers of Indig-
enous kids from their families and place
them in foster or adoptive care outside
their communities.
When Congress passed ICWA in
1978, studies showed that state child
welfare agencies and private adoption
companies were taking between 25% and
35% of Native kids from their families.
And 85% of those children were placed
with non-Indigenous families.
Native families are still four times
as likely as white families to have kids
removed from their homes, according to the
National Indian Child Welfare Association.
But some private adoption companies
and evangelical groups argue that the law
gives preference to Indigenous people as
a racial group and therefore violates the
equal protection clause of the Fourteenth
Amendment to the Constitution.
The Brackeens, a white couple, sought
to adopt a 4-year-old girl in foster care,
the baby sister of a boy they had already
adopted. Devout evangelical Christians,
the Brackeens told
The New York Times
they saw adoption of foster kids as a way
to “rectify their blessings.” The Navajo
Nation wanted to place the girl, who is
Cherokee and Navajo, with a Navajo fam-
ily, as laid out by the Indian Child Welfare
Act. But when that placement fell through,
both Indigenous nations supported the
Brackeens’ adoption.
Despite their happy ending, the Brack-
eens are the lead plaintiffs in a federal
lawsuit claiming the act is based on a
racial preference that unfairly prioritizes
Indigenous families as adoptive parents.
For a child welfare dispute that started
out in a small Texas family court, the
Brackeen case draws unusual firepower.
Texas Attorney General Ken Paxton
intervened in the case on the couple’s
behalf.
And Matthew McGill, an attorney
with the high-powered firm Gibson, Dunn
& Crutcher who argued the Citizens
United case before the Supreme Court in
2010, took the Brackeens’ case pro bono.
He argued on their behalf before the U.S.
Supreme Court in November.
His law firm is also known for rep-
resenting Chevron in the longstanding
lawsuit filed by Indigenous communities
in Ecuador, as well as Energy Transfer
Partners, architect of the Dakota Access
Pipeline. The latter proposal has drawn
fierce opposition from the Standing Rock
Sioux Tribe, along with the Yankton
Sioux, the Oglala Sioux and the Cheyenne
River Sioux Tribes, who say the pipeline’s
route under nearby Lake Oahe threatens
their main source of drinking water and
could pollute the waters they hold sacred.
McGill also successfully argued the
Supreme Court case that led to the court’s
2018 ruling allowing states to legalize sports
betting. The firm counts among its clients
several major international casino operators.
Two years after McGill’s win in the
sports betting case, Washington Gov. Jay
Inslee signed a bill allowing sports bet-
ting only under Washington’s tribal-state
gaming compacts, setting the stage for the
Maverick lawsuit.
In January 2022, McGill filed the
Maverick lawsuit, as well. He did not
respond to requests for an interview.
On its surface, the case is connected to
his litigation around betting and gaming.
But the legal arguments parallel those of
the Brackeen adoption case.
Lewerenz said both cases could result
in rulings that cast tribes as “merely pri-
vate associations of people with a com-
mon racial ancestry.”
“If that happens,” Lewerenz said,
“then it’s hard to understand why they
would have any governing power, any
political power.”
Nagle said that power flows from
tribes’ unique position as sovereign
nations that predate the United States.
“What racial group in the United
States has its own land?” she asked.
“Its own water rights and environmental
regulations? Its own police force, its own
elections, its own government?”
Tribes fear they stand to lose almost
everything: their right to self-governance,
the resources to preserve their culture and
traditions, and the main economic engine
that provides for basic tribal services.
But for those with interests in the pri-
vate casino industry, such a change could
be a boon. The same goes for corporations
looking to develop oil and gas leases with-
out interference from Indigenous nations,
whose right to co-manage the lands they
stewarded for millennia is increasingly
recognized by the federal government.
Gaming change could devastate tribes
The Washington State Legislature
authorized gambling only for the state
lottery, for tribes, for charitable and non-
profit gaming and, in a much more limited
capacity, as a financial boost for bars.
But dozens of non-tribal, for-profit
card rooms have expanded the category.
“Those food and beverage establish-
ments have somehow become these mas-
sive mini-casinos,” said Rebecca George,
executive director of the Washington
Indian Gaming Association.13February 2023 Siletz News• •
That’s where Maverick stepped in.
Its CEO, Eric Persson, declined
repeated requests for an interview. But in
press releases and news articles about the
lawsuit his company filed, Persson says he
supports tribal sovereignty.
In fact, Persson is a member of the
Shoalwater Bay Indian Tribe, a tiny com-
munity located an hour southwest of
Hoquiam, Wash., where he grew up. The
tribe gave Persson a partial scholarship
every semester, according to his spokes-
man, from undergrad through law school
at Georgetown University. Persson is one
of over 100 members the tribe estimates
it has helped send to college.
Now, the tribe says, his lawsuit could
devastate the tribe’s ability to provide gov-
ernment services to its citizens – includ-
ing its scholarship fund.
The Shoalwater Tribe is fighting for
survival on several fronts. Its reservation
is a tiny piece of land. The single square
acre set aside by the U.S. government in
1866 is big enough to house the tribal
headquarters and not much else. Rising
sea levels caused by climate change have
eaten into that territory as the ocean has
slurped up houses on what used to be
forested land above high tide.
“Half the reservation is underwater,”
said Larry Kerns, the tribe’s chief finan-
cial officer.
The tribe is using gaming revenue to
painstakingly buy back small chunks of
its homelands, including areas atop nearby
hills that would be a safer place to live.
The tribe now owns nearly 5,000 acres.
“It’s our land and we want it back,”
Kerns said. “Unfortunately, we have to
buy it back. They stole it from us, and we
have to buy it back.”
The Shoalwater tribal government
made about $7 million last year in gam-
ing revenue, according to Kerns. It pays
for most of the tribe’s governmental ser-
vices, including education, tribal housing,
elders’ pensions, child welfare services,
tribal policing and administration.
“Gaming income funds basically
everything,” Kerns said. “Without it, we’d
have to cut our programs by about 70%.”
The Maverick case threatens it all.
In 2018, the company bought about
half the card rooms in the state, adding
to the casinos and card rooms it already
owned in Nevada and Colorado. Pers-
son immediately launched his campaign
to allow sports betting in private clubs
throughout the state. Maverick poured
millions into a political action committee
and lobbied lawmakers in support of a bill
in the Washington State Legislature that
would allow sports betting in his clubs.
After that bill failed, he tried again
with a narrower model, which he said
would “level the playing field” between
tribal gaming operations and those that
are privately owned by non-tribal entities.
That bill also failed.
Lawmakers approved gambling in
Washington in part to fund essential gov-
ernment services. Just like the state lottery
raises money for education, tribal gaming
raises money that tribes use to provide
their citizens with education, health care,
natural resources and behavioral health,
George said.
“(Persson) has a bottom line that he
wants to grow,” George said. “But for us,
we want to get up to basic standards for
our communities, and we still have a long
way to go.”
Thirty years after the first tribal casino
opened in Washington state, poverty rates
among reservation communities there are
improving, because of the jobs they create
and the government services they fund.
But annual incomes among tribal mem-
bers living on reservations in Washington
state average just $18,600, according to a
recent report by the gaming association.
“Indian gaming has helped a lot,”
George said. “But we’re still a good 50%
behind the state average for poverty. So
there’s still a long way to go.”
-- Karina Brown, Underscore News;
kbrown@underscore.news
Underscore is a nonprofit collabora-
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