Grand entry at Crow Fair 2007. Crow News Photo/Adam Sings In The Timber

On the Courts: Prep Tournaments and 2 LBHC Losses

CrowNews.Net

The Little Big Horn College Rams lost a high scoring game in Crow Agency to Salish Kootenai College Bison Tuesday. The final score was 105-104.

The Rams had a balanced scoring attack with Frank Hugs leading the way with 16 points.

Crow tribal member Pius Takes Horse, who's from Wyola, poured in 19 points for SKC.

On Sunday, the Rams also lost at home in a game against the Williston State College Tetons. The final score was 118-84.

Tim Pease takes a practice shot before the Rams play the Williston State College Tetons. Crow News Photo/Adam Sings In The Timber

Players' Scores

Individual scoring in the game against SKC was as follows:

SKC - Delbert Trombley
14, Pius Takes Horse 19, Ryan Running Crane 19, John Young 26, Ryan Chartraw
27.

LBHC - Shann Hill 13, Frank Hugs 16, Levi Black
Eagle 12, Anthony Lopez 3, Justin Hugs 8, Bobby Takes Enemy 7, Tim Pease 7, John
Hugs 10, Shane Rides the Bear 6, Roberts Hugs 2, Wacey Real Bird 8, Lloyd Hogan
12.

Halftime - S.-Kootenai 51, L. Big Horn 51.

Rams player Frank Yellow Tail shoots over Tetons player Randell Moore at the Crow Agency Multi-Purpose Building Sunday. Crow News Photo/Adam Sings In The Timber

High School Basketball

In Billings this weekend there will be plenty of state  high school tournament action with both Plenty Coups and Hardin playing. Plenty Coups has advanced to the second round of the tournament and will face Plevna at 12:30 on Thursday at the Shrine Auditorium.

Hardin hopes to put it all together in a wide open field where any one could win. The boys will open up against Miles City on Thursday at 6 p.m. at the MetraPark Arena. The Hardin girls play earlier on Thursday against Sidney at 2 p.m. at the Metra.

St. Labre advanced to the second round of the Class B tournament and will play a tough Columbus team in Colstrip at 1 p.m. Thursday.

Lady Rams player Char Old Bull drives to the basket against the Lady Tetons Sunday at the Crow Agency Multi-Purpose Building. Crow News Photo/Adam Sings In The Timber

Commentary: Outcome of Eagle Case Crucial for Crows

By Jay Harris
CrowNews.Net

In March 2005, a 22-year-old oil field worker named Winslow Friday, Jr., a Northern Arapaho tribal
member from Wyoming's Wind River Reservation, was preparing to participate in the Sun Dance ceremony that July and needed an eagle plume, feathers, and a wing.

Problem was, Friday had none of these items and knew of no other way to get them except by killing one of the eagles on the Reservation.  Friday also knew that it was against the law to kill eagles, but he took a rifle and shot and killed a bald eagle anyway.

Friday felt justified because he was on his reservation and was going to use the eagle for ceremonial purposes. Friday’s uncle, a tribal fish and wildlife officer, disagreed and reported Friday to federal officials. Soon after, Friday was charged in federal court with violating the Eagle Protection Act.

Facing a possible punishment of one year in jail and a $100,000 fine, Friday’s public defender argued that Friday didn’t know about the federal laws and regulations which allow for tribal members to receive permits to take eagles or possess eagle parts. Friday’s counsel continued that the government is secretive with regards to the permit system and that the process is inefficient and unduly restrictive of religious freedom. 

Interestingly, U.S. District Court Judge William Downes agreed and in Oct. 2006 he dismissed the criminal charges against Friday.  The U.S. Attorney’s Office in Wyoming appealed Judge Downes’s decision and the Tenth Circuit Court of Appeals in Denver heard oral argument Dec. 17, 2007 from both Friday’s counsel and federal prosecutors from the U.S. Department of Justice.

Indeed, there are two sides to this case and a decision from the appellate court is expected sometime this year.

Though the Crow Tribe resides in the Ninth Circuit and is not bound by the upcoming decision, there is much reason for us to pay close attention to the outcome in this case. Eagles are an invaluable part of Crow culture and eagle parts (whether feather, bones, or otherwise) have an important place in virtually every significant ceremony and religious practice. And just as beef will never replace the symbolic and real importance of buffalo in our traditions and modern culture, imitation eagle feathers and other parts will never replace the symbolic and real importance of actual eagles. 

Bald eagles are America’s national symbol and can be found on everything from our Great Seal of the United States to our currency.  In addition, eagles (particularly bald eagles) represent an incredible success story to the entire nation.  Once on the brink of extinction, bald eagles have rebounded from illegal killing and habitat degradations so successfully that in 1995 the bald eagle was removed from classification as “endangered” and was upgraded to “threatened”. 

In 2007, the bald eagle was removed entirely from the Endangered Species Act protection but continues to be protected under the Eagle Protection Act – remaining something of a rarity in itself as a federal statute that specifically regulates the taking of individual species.  Even in Montana, however, the sight of a bald eagle is cause to take notice.

For all of these reasons, a case involving Indians, Indian religion, and eagles is also very much cause to take notice.

What is perhaps most significant about the Friday case, legally, is that it involves a claim to the taking and use of a bald eagle for solely religious purposes.  Past cases arising in the Ninth Circuit (including one involving Crow Tribal members in the late 1990’s) have not dealt solely with a religious exercise claim since nearly all cases involved the sale of eagle parts, which makes questionable the claim of non-commercial religious exercise since Congress has much broader authority to regulate commerce than religion.

Since the killing occurred on a reservation, some might wonder about the possibility of treaty rights to hunt eagles on a reservation?  Simply put, that argument will not fly. 

In 1858, Yankton Sioux leaders signed a treaty with the United States which reserved about 400,000 acres as their new homeland with tribal rights to the undisturbed and exclusive use of the reservation. Nothing in the treaty conditioned the hunting of the Yankton on their reservation and the general judicial rule is that omissions or ambiguities in treaties are viewed in a light most favorable to Indians.  So, a century and a quarter later, in exercise of the presumed right to hunt all animals on the Yankton reservation a tribal member named Dwight Dion shot and killed four bald eagles.  Dion was charged and convicted in federal court with violating both the Endangered Species Act and the Eagle Protection Act.  His conviction was reversed by the Eighth Circuit.  On certiorari, however, the Supreme Court held, in United States v. Dion (1986), that Congressional legislation (namely the Bald Eagle Protection Act) subsequent to the treaty which sought to protect bald eagles and which recognizes and reserves tribal member exemptions under a permit system effectively stripped Dion's treaty right to hunt eagles in an unregulated manner. 

No treaty right, therefore, can be argued by Friday or anyone else today who might be interested in taking an eagle for any purpose without a permit.

According to the Bald Eagle Protection Act : “Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof for…the religious purposes of Indian tribes…he may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe…”.

The Interior Department has promulgated regulations pursuant to this statute allowing for the permit system which makes (hypothetically at least) eagle feathers available to tribal members.  But as Judge Downes said in his October 2006 bench opinion dismissing charges against Friday: "Although the government professes respect and accommodation of the religious practices of Native Americans, its actions show callous indifference to such practices … It is clear to this court that the government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time."

So if the permit system is relatively unknown and the government only begrudgingly issues permits and dispenses dead eagle parts, might Judge Downes be right in dismissing Friday’s charges on the basis of a failure on the part of the federal government to accommodate Indian ceremonies and religion? 

Today, there are approximately 2,000 “whole eagle requests” submitted to the National Eagle Repository in Denver and twice that number pending.  Friday’s attorneys have argued that 5,000 Indians are on the waiting list  to get eagle parts and the wait time is over three years. The Justice Department, meanwhile, is arguing that there is a compelling governmental interest in conserving living eagles since the U.S. Fish and Wildlife Service estimates that there are less than 10,000 breeding pairs in the lower 48 states and it is clear that tens of thousands of American Indians use or would use eagle parts for ceremonial or cultural purposes. 

In other words, there is a great demand from Indians for eagles and it is unlikely to lessen anytime soon.  So how exactly does the need of the government to balance conservation and accommodation proceed?

For starters, we can look at what the government cannot do. 

The First Amendment says that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”  As the U.S. Supreme Court has continuously held, the Free Exercise Clause means first and foremost that all Americans (including American Indians) have a right to believe or not believe in any religion and neither the federal government nor the states can infringe upon the right to believe or not believe and to profess belief or unbelief in a particular religion or religion in general.

The Supreme Court has drawn a line when it comes to the government’s ability to regulate the actual exercise of religion through the enforcement of laws which apply generally and that are not specifically targeted at a particular religion, even if the generally applicable law has the effect of burdening an important aspect of a particular religion.  In 1990, the Supreme Court held in Employment Division, Department of Human Resources of Oregon v. Smith that a state could prevent peyote use by practitioners of the Native American Church.  The Court majority reasoned that to allow one religion an exception to a generally-applicable prohibition would, in effect, create anarchy since everyone might claim a religious exemption from any attempt by government at prohibiting, regulating, or compelling certain types of conduct.

With regards to what the government is required to do, we must give the Congress some credit for taking the initiative in attempting to provide for more religious freedom than the Supreme Court was prepared to recognize.  In response to the Smith case, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), which sought to statutorily provide a more rigorous judicial review of all governmental actions which have the effect of burdening religious practices.  However, in 1997 the Court struck down RFRA as it would apply to the states, ruling that no Constitutional authority exists by which Congress can apply judicial reviewability standards to state governmental action. 

However, under RFRA’s strict scrutiny standard of review the federal government today must show a “compelling interest” in regulating religious freedom and must also show that the action taken is the “least restrictive” means of furthering that compelling interest.  It remains unclear as a matter of law whether RFRA may be justified as a general prohibition against infringing upon tribal religious freedom under Congressional plenary authority concerning Indian affairs as an affirmative measure used to protect tribal integrity.

With Indian religion in particular, for thirty years there has been a federal law – the American Indians Religious Freedom Act – by which the federal government has been instructed by Congress that Indian religion is important and concerns must be recognized. The language seems very straightforward: “[It is] the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian…including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”  See American Indian Religious Freedom Act of 1978, Title 42 U.S.C. § 1996. 

However, as the Supreme Court has recognized, this law does not create any substantive rights for Indians but is, rather, an articulation of federal policy.  So when it comes to modern Indians, is our freedom to practice (and not just believe) traditional religion itself something that cannot be believed?

The Tenth Circuit has previously held that tribal members have a right to possess and use eagle parts in religious ceremonies under RFRA and it is now upon the Tenth Circuit to determine whether or not the federal government’s practices in applying the laws and regulations making eagle feathers available is the least restrictive measure to accommodate the interest in conserving eagles. 

A factor that could play against Friday's case may be that, in addition to Justice's argument that the government does have a compelling interest and is using the least restrictive means possible to meet that interest, the argument also contends that Friday has no legal ability to challenge the effectiveness of the regulations governing the permit
system since he did not attempt to attain a permit.

It is likely the particular legal analysis the Tenth Circuit applies in the Friday case will be determinate as to whether the Supreme Court will hear an appeal on certiorari. But if Friday’s dismissal is affirmed, we can be sure the case will go to Washington, D.C. and it is anyone’s guess as to what the high court will hold but Indian supporters should not hold their breath. 

If Friday’s dismissal is reversed and he goes to trial for a likely conviction in District Court, it will be a defeat for Indian religious and ceremonial practitioners but perhaps a wake-up call to the Interior Department, or better yet Congress, to make greater efforts to accommodate Indian ceremonies that rely on eagle parts.

In the meantime, we’ll wait for the Tenth Circuit to rule and for possible future developments to unfold.

The Associated Press has reported that, on the advice of tribal spiritual leaders, Winslow Friday rejected the government’s offer of a plea agreement to reduce the punishment to $5,000 and two years of probation.

The following is an excerpt from a short essay titled “An Eagle Nation” by Rhodes Scholar and Osage Indian Carter Revard which is included in a collection of Indian stories appropriately titled Native American Testimony (Penguin Books, 1999):

“There was a placard on the cage’s side that said: This bald eagle was found wounded, and although its life was saved, it will never fly again … Aunt Jewell, from her
wheelchair, spoke in Ponca to him, so quietly that I could hardly
hear…Brother, she said. The eagle opened his eyes and turned his head.  She said something else.  He partly opened his beak and crouched and looked head-on toward her, and made a low shrill sound … [A]nd how it has all changed and the ways are strange but the voices still are singing, the drum-heart still beating here, so whatever the placards on their iron cages may have to say, we the people, as Aunt Jewell and the Sun Dancers say, are an EAGLE NATION, now.”

What judicial outcome awaits Friday’s courageous decision should be of great interest to the Crow Tribe and all others who care about what sort of “eagle nation” we are to become.

Jay Harris, an enrolled Crow Tribal member, is a second-year law student at the University of Colorado and is the Vice-President of the CU Chapter of the Native American Law Students Association.

Photo Credit: NASA/Rothstein.

On Politics: Indian Country Deserves a Debate

By Jay Harris
CrowNews.Net

There are many political observers thrilled to see a highly-contested Democratic Party nomination. With the intense competition for votes naturally comes an intense competition of ideas.

Many believe that the Democratic nomination may not be decided until the party convention in late August. That gives the two front-running candidates plenty of time to introduce and discuss their ideas for improving America in states that traditionally cast their primary votes long after a nominee is declared and with little attention paid to them.

And there is great reason for the nation’s approximately four million
American Indians to view a fully contested nomination process as a
means by which the issues most important in Indian country can
receive more than a passing amount of interest by the candidates.

Montana and South Dakota have a combined
population of more than 125,000 citizens who identify themselves as American Indian,
according to 2006 U.S. Census estimates, and they will hold their primaries on June 3. No other state is having a primary that week.

With two weeks available between the nearest primary preceding the Montana and South Dakota primaries and June 3, I
believe both the campaigns would benefit tremendously from taking part in a debate
held before the primaries on one of the two states’ reservations.

The debate should
focus on Indian issues and especially the future of the BIA and trust reform,
the inadequacies of the IHS, reauthorization and sufficient funding for
important Indian country legislation like law enforcement and public safety (especially drug use, alcohol abuse and sexual crimes involving children),
investment in infrastructure, economic development (including gaming), energy development (particularly
alternative and sustainable energy), education, and a whole host of other
issues that Indians in their lives every day.

One thing Indians should ask the Democratic candidates is why they think their
plans for Indian country would be better than those of Sen. McCain, who is the presumptive Republican nominee and former Chairman of the Senate Committee on Indian Affairs, or Ralph Nader, who is seriously considering another run for the presidency. Nader is also likely take the most
progressive and tribal sovereignty-supporting positions.

Sen.
Clinton will likely talk about the efforts made on behalf of Indians during the Clinton Administration.
Should we expect something better?

Sen. Obama recently wrote an opinion piece
for Indian Country Today titled “Making My Case in Indian Country.”
(Click here for the article). Is this the change we can all believe in?

Are there any issues you feel need to be brought to the attention of the Democratic candidates? Would you really like to see the candidates talking to Indians on a reservation in Montana or South Dakota? Here is Clinton and Obama's contact information.

It is important to note that both Obama and Clinton opted out of the
Indigenous Democratic Network’s “Prez on the Rez” debate held this past August
on California's Morongo Indian Reservation. Gov. Richardson, Rep.Kucinich and former Sen. Gravel did attend.

But with enough phone calls, letters, and e-mails, we can be sure there will be discussion within the campaigns about possible events in Montana and South Dakota, and perhaps even a debate on a reservation. Let's prove that point by requesting a debate in Indian country before the June 3 primary.

Here's a short sample letter: Download letter_crownews.rtf.

Or, you can take a nod toward history and be a little more direct: Come
on. Big election. Be quick. Bring the media.

P.S. – Bring the media.

Tribe, State Sign Economic Development Pact

       


Members of the tribal legislature stand with Rep. Dennis Rehberg, R-Mont. Click here for more photos. (Photo by Jeff Garrard).

By Mary Hudetz
CrowNews.Net

The Crow Tribe and the state have become the first in the country to sign a compact that intends to make it


more feasible for banks to provide loans on the reservation. In the past, banks often shied away from financing business ventures and other interests in Crow Country.

Because of the sovereign nature of tribal governments, money-lending
transactions could not be secured by a lien as they are under state
law.

Loans were much harder to get, causing a severe lack of capital
and soaring interest rates in Crow communities, where businesses are
few and unemployment rates run high.

With the new compact, liens regarding loans on the reservation will
be filed in the secretary of state's office and be enforceable on the
reservation.

Lee Newspapers' Noelle Straub reports
that officials at the signing ceremony in Washington said other tribes
and states throughout the country are "following the Crow lead" and
preparing similar compacts.

Editor's note: Click here to read the compact.

LBHC Sets School Record; Plenty Coups 18-0

CrowNews.Net

It happened. The Little Big Horn College Rams captured their fifth win for the season Tuesday when they won 85-83 in a home game against Sheridan College, a school that beat the Rams 127-77 just five days earlier.

Here are results from the Rams' recent conference games:

• January 9: Casper College 79 LBHC 49


• January 19: Miles City 109 LBHC 42


• January 22: Casper College 96 LBHC 49


• January 30: Sheridan College 104 LBHC 58.

In other basketball news, the Plenty Coups Warriors have wrapped up
the regular season with a stellar, 18-0 record. They enter the first
round of tournament games this weekend as the top-ranked team in
Montana Class C when they play Belfry today at the Shrine Auditorium in
Billings. State finals begin March 6 at Butte's Civic Center. 

Fundraiser to Feature Tuff Harris

By Rosella Shane
CrowNews.Net

Tuff Harris will be coming to the multi-purpose building in Crow Age

ncy on Feb. 15, 2008 to visit with the Crow Nation Boys & Girls Club members and the Big Horn Optimist Club of Hardin. This event benefits the Crow Nation Boys & Girls Club, is open to the public and will last from 4-7 p.m. Activities include a pop-shot contest and a raffle drawing for a football signed by Tuff. We are very excited to have him talk to the boys and girls of the Crow Reservation.