New Karuk Constitution: It has come to my
attention that the Karuk tribe is in the process of revising their constitution. http://karuk.us/constitution According to their website, the proposed changes are
intended to greatly expand Tribal jurisdiction. Tribal members are invited to provide
input at a series of meetings in September.
From my reading of the document, the proposed changes in jurisdiction
could widely overlap and conflict with County, City, State and federal authority. Taken to
the extreme, it would be Constitutionally questionable to have regulations imposed upon
non-tribal people through a tribal government body in which they had no elected
representation.
Changes: The document
proposes to enlarge the territory and ancestral lands of the Karuk to include all of Siskiyou
County and a portion of Humboldt County, California from Aikens Creek to the Klamath River,
to the County line. There are specific claims on all submerged lands, and the beds, banks
and waters of all the waterways within the territory, as well as the Tribe’s usual
and customary hunting, fishing and gathering sites.
The document proposes to enlarge jurisdiction of the Karuk tribe to
include all lands, waters, natural resources, cultural resources, air space, minerals,
fish, forests, wildlife, and other resources within the territory. The Tribe proposes to
claim jurisdiction over all activities within or without the Tribe’s territory that
“have a serious, direct or negative effect on the political integrity, economic
security, resources or health and welfare of the Tribe and its members.” In the
document, the Karuk tribe declares its intent to manage, develop, protect and regulate the
use of Tribal land, wildlife, fish, plants, air, water, minerals, and all other natural
and cultural resources within Tribal jurisdiction.
The
proposed constitution states that it is the Tribe’s intent to enact laws and codes
governing conduct of individuals and prescribe disciplinary action for offenses against
the Tribe; to maintain order; to protect the safety and welfare of all persons within
Tribal jurisdiction; and to provide for the enforcement of the laws and codes of the
Tribe.
Indian Country: California is a PL 280 State.
Generally, that means that a tribe has civil regulatory jurisdiction over trust lands and
tribal members within Indian Country (reservation lands.) The State has criminal
jurisdiction. Whether a tribe may regulate non-tribal land use on private non-trust lands
within a reservation is a grayish legal area and I am not an attorney. However, Montana v. U.S. , 450 U.S. 544
(1981,) implied a tribal right to regulate conduct in Indian Country that threatens “the
political integrity, the economic security, or the health or welfare of the tribe.“
Tribes do not have regulatory jurisdiction outside of Indian Country.
No treaty
with Indians in the California Klamath region was ever ratified. Unlike the Yurok and the
Hoopa, the Karuk tribe was never granted a reservation by the United States, nor does it have
federally recognized fishing rights as a tribe. If the Karuk have “Indian Country”
at all, it would seem to be limited to lands held in trust for housing.
To my
knowledge, aboriginal or ancestral land claims in California were extinguished
long ago. The tribes never ceded land to the US, as in other
states. In Barker v. Harvey, 181 U.S. 481
(1900), the Supreme Court indicated that any Indian right of occupancy in California should be
considered as a "right or title derived from the...Mexican government." It was
established that the Indians' right of occupancy was deemed abandoned after the Treaty of
Guadalupe Hidalgo with Mexico for failure to present them to the land claims commission
under the California Land Settlement Act of 1851. (This was reaffirmed in United States v
Title Ins. & Trust Co., 265 U.S. 472, 486, 1924.)
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