A Special Report by
The South Jordan, Utah-based American Lands Council (ALC) is known around the country for its campaigns to transfer control of federal lands to state governments. The Lands Council has drawn criticism for a plan that could cost state governments millions of dollars and open federal lands to aggressive resource extraction. However, the Lands Council has fostered a moderate public face by exempting certain lands from state takeover, including national parks, wilderness areas and Indian reservations.
On September 26 the American Lands Council’s “moderation” was thrown into question when Montana State Senator Jennifer Fielder promoted the group’s cause at a conference hosted by the Citizens Equal Rights Alliance (CERA) in Kalispell, Montana.
The Wisconsin-based CERA is the most notorious organized anti-Indian group in the United States, dedicated to terminating tribal governments, abrogating treaties and turning management of tribal resources over to state government. ALC’s alliance with CERA again highlights the group’s ties to a broader far-right movement that threatens treaty rights, civil rights and environmental protection.
CERA’s conference also highlights another point – that by exposing anti-Indian bigotry, and organizing against it, Native and non-Native people can join together to turn back these threats to all of our communities. A protest organized by the Missoula-based Native Generational Change, and a series of exposes on CERA by the Montana Human Rights Network and the Institute for Research and Education on Human Rights, demonstrated how communities can put racist groups on the defensive and expose their weaknesses to public scrutiny.
American Lands Council and the Quest for Indian Lands
State Senator Jennifer Fielder’s (R-Thompson) appearance at the CERA conference draws attention to the group’s recent success recruiting state and local officials to the anti-Indian cause. Fielder was joined at the event by Hobart Village, Wisconsin President Richard Heidel and Fremont County, Wyoming Commissioner Doug Thompson. Just two years earlier, not a single elected official attended a similar conference in Washington State.
Fielder was on hand to promote the goals of the American Lands Council, a Utah-based group leading a western U.S. campaign to transfer federal lands to state control. In 2012, the ALC helped lead the passage of founder and Utah State Representative Ken Ivory’s (R-West Jordan) Transfer of Public Lands Act (TPLA) – an un-Constitutional bill that “required” the U.S. government to transfer many public lands to the State of Utah. ALC and its supporters have mounted campaigns for public lands transfer in 11 western states. Inside the Red Lion, Fielder distributed Lands Council material and told attendees that the “The solution to all this is to free our lands from the federal bureaucracy.”
Senator Fielder’s ties to the American Lands Council run deep. Fielder brought ALC’s Ken Ivory to Montana to testify before a state environmental committee, attends ALC events, and her writings appear on the group’s website. Fielder helped lead the passage of a Montana bill to study federal land transfers and, according to press accounts, has requested some 20 related bills in the state legislature. In February 2015 Fielder’s aide, William Macon Richardson, resigned when it became public that he was a registered lobbyist for the Americans Lands Council.[1]
Fielder’s recruitment at a CERA conference starkly contradicts stated ALC policy goals. Fielder described the ALC’s professed aims in recounting the Utah group’s October 2014 national convention. “All agreed,” Fielder wrote, “to exclude existing National Parks, Indian Reservations, Military Posts and congressionally designated Wilderness Areas from the requested transfer.”[2] Ken Ivory’s own 2012 TPLA exempted from “public lands” any “lands, including water rights, belonging to an Indian or Indian tribe, band, or community that is held in trust by the United States.”[3]
The ALC’s proposed policies are of general concern to Indian Country because federal lands would be put in the hands of states often hostile to tribal interests and less committed to upholding treaty obligations than the federal government. Fielder’s outreach to anti-Indian activists amplifies this concern – suggesting, at the very least, greater scrutiny of the Lands Council’s claimed disinterest in tribal lands.
The American Lands Council’s ties to the organized anti-Indian movement do not end with Fielder’s CERA conference appearance. The ALC has, in fact, directly promoted CERA leader Elaine Willman’s writings and policy strategies. In a statement published on the ALC’s website, Elaine Willman writes, “I deeply support the mission and objectives of the American Land (sic) Council, and am so grateful for its existence and ongoing efforts.” Willman continued:
“I do have special expertise in federal Indian policy, specifically as it relates to federal government over-reaching using tribal governments as willing pawns…Tribal government authority is limited to their enrolled members and tribal-held properties but the federal government, through EPA, BLM, USFW, USDA, Bureau of Reclamation, etc…is vigorously pursuing tribal government authority over State natural resources, non-tribal persons and properties. This effort has truly accelerated in the recent years, and appears to be on steroids presently.”[4]
In September 2014 American Lands Council Director of Communications Becky Ivory posted “Observations and Recommendations” written “by Elaine Willman while in Northwest Montana, September 7-19, 2014.” In the article, Willman raises the Supreme Court’s 1981 decision in Montana v. United States to call for Montana state leaders to aggressively push back against tribal water rights and jurisdiction.
The Montana ruling is one in a series of Supreme Court cases that have undermined tribal sovereignty on the basis of colonial legal theories. In Montana, the Court held that tribal governments generally lack regulatory jurisdiction over non-Indian-owned fee lands on reservations unless non-Natives had enter a “consensual relationships” with the tribe or non-Indian activity “has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”
The Montana Court relied on the body’s 1978 ruing in Oliphant v. Suquamish. In Oliphant, Justice William Rehnquist had stripped tribes of criminal jurisdiction over non-Indians on Indian reservations in a case involving the reckless and life-endangering behavior of whites on the Suquamish Indian Reservation in Washington State. Rehnquist built his case by cherry-picking historical documents and citing overtly racist 19th century cases rooted in the colonizing Discovery Doctrine. Based on such precedents, Rehnquist unsurprisingly held that, in this instance, tribal sovereignty is “constrained so as to not conflict with the interests of this sovereignty” [i.e., U.S. sovereignty]. Such is the very definition of colonialism.[5]
As a leader in a modern settler colonial movement, it is unsurprising that Elaine Willman seeks to expand the Montana logic to oppose treaty-reserved and Constitutionally-protect tribal water rights. Willman writes that the State of Montana “won the case for not only the State of Montana, but many very grateful States across the country that host Indian tribes and reservations.” Willman castigates state leaders for cooperating with tribes, outrageously declaring that “The consequence of such thinking by any state elected official is large, long and egregiously foreboding to the future constitutional protections of citizens statewide.”[6]
While such pronouncements are expected from CERA, promoting attacks on tribes is starkly at odds with American Lands Council’s claimed assurances that it does not seek state control of tribal land and water.
Conspiracies, White Dispossession and the Racist Rabbit Hole
The CERA conference further illustrated both groups’ relationship with the broader far right. The American Lands Council has, in fact, dabbled deeper in far right politics than its public presentments convey. For instance, the ALC has had a disturbing relationship with former Graham County, Arizona Sheriff Richard Mack, a leader in both the Constitutional Sheriffs and Peace Officers Association (CSPOA) and the paramilitary Oath Keepers. While the former attempts to recruit law enforcement to the far right cause, the later has organized paramilitary mobilizations to defend unfettered mining on federal lands in Montana and Oregon. ALC’s Ken Ivory has shared a stage with Mack on several occasions and told the Salt Lake City Weekly that he spoke at one convention at the request of Mack. Ivory has also signed the CSPOA’s “Constitutional” sheriff’s pledge. Of Ivory, Mack told the press, “We know each other very well.” Oath Keepers has returned the favor by promoting the American Lands Council and State Senator Jennifer Fielder on its website.
Elsewhere, Mack has assailed the separation of church and state embodied in the First Amendment and offensively stated that “the Reverend Jesse Jackson types and the NAACP have done more to enslave Afro-Americans than all the southern plantation owners put together.” [7] Following the 1995 Oklahoma City bombing, Mack was quoted as saying,
“People get all upset when they hear about militias, but what’s wrong with it? I wouldn’t hesitate for a minute to call out my posse against the federal government if it gets out of hand.”[8]
Elaine Willman’s presentation at the Kalispell conference called further attention to CERA’s growing ties to the far right – this time by acknowledging the group’s increasing commitment to promoting global conspiracy theories:
“It’s the first time CERA has tied in Agenda 21 and some of the United Nations pieces with federal Indian policy – and there’s a reason for that today. That’s because the language of Agenda 21, and the language of the United Nations indigenous people’s declaration, signed by President Obama, is now being incorporated into federal regulations. So Federal Indian policy is tying in and being coordinated with international and United Nations’ goals. And the long term goal of the United Nations and the Agenda 21 is that the states will go away. ..This current administration is using tribal governments and Indian reservations as a way to expand the federal footprint out among the states…capture the state’s resources, let tribal government govern the state citizens that are not enrolled tribal members.”
Agenda 21 is a wholly voluntary United Nations program supporting sustainable development, particularly in poorer countries. Such conspiracy theories are a staple of far right ideology, depicting the concerns of American citizens about environmental protection and sustainable development as an international plot to destroy America. CERA’s increased commitment to conspiracy-mongering comes on the heels of the group’s recent alliance with the John Birch Society.
The Kalispell conference also included conspiracy “theorist” Debbie Bacigalupi of Siskiyou County, California. Bacigalupi alleged United Nations goals that “threaten” America in the form of divestment from fossil fuel development, the environmental movement, Papal pronouncements, and Boy Scouts receiving sustainability merit badges. Bacigalupi has endorsed the far right State of Jefferson movement’s attempt to break off northern California counties to form a new state. Bacigalupi has also shared a stage with American Land’s Conference leader Ken Ivory and Richard Mack of Oath Keepers. (See Anti-Indian Escalation in Montana).
Willman went on to racialize conflicts between tribal and white communities. As a release by MHRN and IREHR described, Elaine Willman claimed that supporting “European cultures” has drawn the frequent allegations of racism leveled at the group. (See ALC Courts Anti-Indian Leaders). Willman’s assertion is patently absurd. Associations of ethnic European-Americans – from the Sons of Norway to countless Italian and Irish-American clubs and beyond – routinely host events without no charges of racism. Simply put, CERA is criticized as racist because it couples support for “European cultures” with a wholesale assault on the inherent and Constitutionally-protected rights of indigenous people. William’s repeated claim to Cherokee heritage notwithstanding, the view expressed here mimics the general sense of white dispossession that animates much far right activity in the United States.
Hobart Village President Richard Heidel added fuel by further racializing the attack on tribal rights, casting Indian tribes in the mold of the “undeserving poor.” This framework is a mainstay of conservative and the far right activists who dismiss the existence of institutional racial inequality in American society and blame people of color for being disproportionately low income. Heidel declared,
“Far too many politicians have mastered the fraud of taxing one group of citizens and bestowing its wealth on another class, all the while somehow justifying this on the basis of imagined or manipulated inequalities. This is victimization of those who deserve better and an insult to those who’ve done no wrong…In my opinion, the ledger injuries for past grievances have been balanced and the tribe no longer needs the ‘great white father’ to pay its weekly allowance. Until the federal pipeline of money to American Indian tribes – who have all kinds of casino revenues and federal subsidies already – is capped and welded shut, mischief will continue to be visited upon law-abiding and generous Americans and their local and state governments.” (See ALC Courts Anti-Indian Leaders).
Keeping with conference themes, New York Attorney Lawrence Kogan alleged U.N. machinations in the form of pro-sustainability executive orders and laws – as if the domestic U.S. environmental movement has not promoted sustainability of its own accord! Kogan is working to oppose the Confederated Salish and Kootenai Tribe’s water compact approved by the Montana state legislature earlier this year. Kogan also wrote a last-minute, failed lawsuit on behalf of State Sen. Bob Keenan (R-Bigfork) and former state Sen. Verdell Jackson (R-Kalispell) intended to block the CSKT from acquiring the former Kerr Dam. Kogan has hired CERA’s Elaine Willman to further his cause.
Kogan’s brief demonstrates the racist rabbit hold down which CERA legal maneuver’s invite any who follow – a fact which local and state government officials should take note of before supporting CERA causes with taxpayer dollars. In his now-infamous brief Kogan wrote that the Kerr Dam transfer could result in advances for Islamic terrorists:
“Whether or not it can be confirmed that it is the Turkish Government’s ambition to acquire raw nuclear materials that can later be refined for military purposes from Indian reservation lands, including from the Flathead Indian Reservation, it remains plausible that members of Turkish enterprises interested in and/or currently doing business with the CSKT on the Flathead Indian Reservation could have affiliations with terrorist organizations the Turkish Government has harbored (e.g., Muslim Brotherhood) or have employees bearing such affiliations that have their own bold agendas. And, given the CSKT’s technical capabilities and apparent gullibility/naivety, the CSKT, tribal members, Plaintiffs and similarly situated persons, may be at peril.”[9]
In rejecting the lawsuit, U.S. District Court Judge Rudolph Contreras wrote,
“In their Motion, Plaintiffs make general claims of economic harm they will allegedly suffer should CSKT and EKI [Energy Keepers Inc.] take control of the Kerr dam. Additionally, Plaintiffs make general allegations regarding the natural security importance of the Kerr Project, as well as somewhat perplexing arguments regarding the Turkish Government’s involvement with Native Americans. However, to the extent such injuries are cognizable, nowhere are those allegations substantiated in the record. Indeed, at hearing, counsel for Plaintiffs conceded that no such evidence has been submitted relating to the Plaintiffs’ alleged economic harm. Accordingly, Plaintiffs have failed to meet their burden here.”[10]
At the conference, both Lawrence Kogan and Elaine Wilman defended the Turkish-CSKT claim.[11]
Adding emphasis to CERA’s invitation down a legal rabbit hold, CERA Board Member Butch Cranford of the California-based No Casinos in Plymouth (NCIP) recounted his group’s efforts to oppose casino development by the Ione Band of Miwok Indians. CERA and NCIP jointly filed a lawsuit challenging a 2012 Department of Interior decision to place fee land into trust on behalf of the Ione Band. Amador County had filed a separate suit. A few days after the CERA conference, on September 30, a federal judge dismissed both lawsuits.
In part, CERA and NCIP had argued that the Supreme Court’s 2009 decision in Carcieri v. Salazar precluded the Secretary of Interior from placing land into trust for the Ione Band. Based on a narrow reading of the 1934 Indian Reorganization Act – the statutory basis for fee-to-trust transfers – the Carcieri Court ruled that the Secretary could only take land into trust for tribes “under Federal jurisdiction” when the IRA passed. Though the Ione Band of Miwok Indians was federally recognized in 1995, Judge Troy L. Nunley ruled that ample evidence existed that the Ione had been under federal jurisdiction in 1934 and that the DOI had not acted in an “arbitrary and capricious” manner (the standard under the Administrative Procedures Act) in placing the land into trust. Judge Nunley similarly rejected four additional CERA/NCIP claims.
That the related case by Amador County was rejected should offer pause to any jurisdiction contemplating lawsuits alongside the Citizens Equal Rights Alliance and its allies.
People Come Together to Oppose CERA Bigotry
The CERA event was met with strong opposition from supporters of tribal sovereignty and treaty rights. In the lead up to the event IREHR joined the Montana Human Rights Network to release a series of reports on Elaine Willman’s move to Montana, CERA’s conference and Senator Fielder’s willingness to cast her lot with the anti-Indian cause. The reports documented the depth of CERA’s assault on inherent and Constitutionally-protected tribal sovereignty and treaty rights as well as CERA’s conspiracy-mongering and ties to the far right.
CERA was next met with protest. With less than a week notice, the Missoula-based Native Generational Change brought some 80 Native and non-Native people together in Kalispell to peacefully protest the CERA event – doubling the number of CERA attendees and demonstrating the depth of opposition to bigotry in western Montana. Prior to the protest NGC initiated calls to the Red Lion to express disappointment that the Kalispell franchise of the national chain was playing host to a racist event. IREHR and MHRN supported NGC’s calls to the Red Lion while all three groups called on their supporters to urge Senator Fielder to disavow the racist event. Fielder attended despite ample opportunity to be fully informed about CERA’s anti-Indian ideas and goals.
A statement issued by Native Generational Change appeared in The Missoulian and Char-Koosta News, the publication of the Flathead Indian Nation, while NGC’s protest drew even wider press coverage. NGC’s call to action rejected CERA’s “message of hate and ignorance directed towards all Native Americans.” NGC declared that “Montanans of all races have stood in the past together and this Saturday generations of Montanans will make a stand once again, AGAINST HATE.”[12]
The day of the protest, a diverse gathering of Natives and non-Natives, elders, activists and youth stood up for inherent tribal sovereignty and treaty rights. Speakers eloquently rejected CERA racism and offered drumming and songs in support of tribal rights. Those gathered held the flag of the Flathead Nation and displayed signs such as “Racism is Taught” and “Fight Racism.”
NGC’s Anti-CERA Demonstration (credit: The Drake’s Delve)
The combined impact of the MHRN-IREHR reports and the NGC-led protest put CERA on the defensive, forcing the group to repeatedly defend itself against well-documented charges of racism and a strong community mobilization against anti-Indian bigotry. CERA and its supporters bumbling defense demonstrates the vulnerability of the group to public scrutiny and opposition.
CERA tripped first when Elaine Willman responded to allegations of racism in an interview in The Missoulian. Willman told the paper, “My own opinion is that tribal governments have outlived their usefulness…All citizens should be treated equally.” (See Ask Senator Fielder). Here Willman could muster little more than the decades-old, and certainly tired, language used by anti-Indian activists to promote tribal termination and treaty abrogation (See The Revolutionary War for Citizens of Montana). CERA’s goals of ending inherent tribal sovereignty, and tribal nationhood itself, is the very essence of organized political anti-Indianism in the United States.
CERA legal advisor Lana Marcussen was next. Marcussen responded with an editorial September 25 in the The Missoulian. After ranting that MHRN and IREHR’s op-ed was “untruthful and inflammatory” – though offering no specific examples – and dubbing MHRN a “fringe organization,” Marcussen took the tack of attempting to pit “state-vested” and fee-land-attached water rights of Indian and non-Indians against treaty and federally-reserved rights. Marcussen wrote,
“Native Americans are all state citizens as well as federal citizens and are entitled to have state water rights attached to their allotments or former allotments that are fee lands within the reservation boundaries. These state-vested water rights should not be subject to being diverted or interrupted by any federal or tribal official…
It is the United States that has every reason to expand the definition of its storage and administrative interests in the water to acquire water for in stream flows or for endangered species or as the latest federal bureaucrat has determined to be in the interests of the United States. Unfortunately, because federal reserved water rights assertions have only been successful for Indian tribes and have never resulted in large acquisitions of water on other lands of the United States, the Indian tribes have been used as the trust basis of expanding federal authority against all private rights.”
In addition to repeating the “Indians as tools of federal expansion” conspiracy mantra, Marcussen offered little more than CERA’s long-standing state’s rights-based attack on tribal treaty rights. By proposing that only allotted and fee land-attached water rights be supported, Marcussen outright dismisses the unique rights reserved to tribes in treaties with the federal government. These rights, long-upheld in the U.S. Supreme Court and federal courts, include on-reservation rights suited to the purpose of the reservation and off-reservation instream flows [that Marcussen mocks] supporting treaty-reserved fisheries. Simply put, CERA’s legal advisor offered little more than reiterating CERA’s disdain for treaty rights and an open invitation to follow the group down a racist, “legal” rabbit hole.
A letter to the editor defending the CERA conference illustrates the quandary the group faces as it feigns concern for civil rights, yet allies with social movements often diametrically opposed to them. A letter to the editor to The Missoulian from Thomas Frisen of Palm Beach, Florida assailed a joint MHRN and IREHR op-ed as “ridiculous propaganda” and offered the weak defense that Elaine Willman claims to be Cherokee. Mr. Frisen richly continued,
“Also, the same column attacks the John Birch Society using more falsehoods. Yes, the JBS opposed the Civil Rights Act, because it’s unconstitutional and infringes on private property rights, the right to freedom of association and various other liberties. Yet the column carefully omits those facts, too, despite the fact that the organization has always had a strict policy against racism–long before it was accepted by the mainstream. The column also omits the indisputable fact that the entire Democratic Party opposed the Civil Rights Act – because they were racist.”[13]
Mr. Frisen’s statement that the “entire Democratic Party opposed the Civil Rights Act” is simply false. Some 64% of Democrats voted for the Civil Rights Act compared to nearly 80% of Republicans. However, the voting patterns were largely shaped by region. While just 8% of former Confederate state Democrats supported the Civil Rights Act, more than 95% of Democrats from former Union states did so. Overall, Republicans supported the Act at slightly lower levels when compared to their regional Democratic counterparts. In this period of developing party realignment, many in the southern wing of the Democratic Party, and the few southern Republicans, remained entrenched in opposition to the Civil Rights Act – as did the John Birch Society.[14] In the end, northern Democrats and Republicans voted together to carry the day for Civil Rights.
Mr. Frisen’s assertion that the Civil Rights Act is “unconstitutional” simply recalls periods of U.S. history that would be long past were it not for the ongoing racism of the John Birch Society, its defenders and other far right groups.
Such are the politics with which CERA, and now the American Lands Council, have cast their lot.
Conclusion
The American Lands Council’s appearance at a CERA meeting is consonant with the anti-Indian movement’s long-standing ties to property rights groups. ALC recruitment of anti-Indian activists to its cause, however, strongly contradicts the group’s feigned disinterest in tribal lands.
If American Lands Council claims are to be believed, the group should have no truck with the organized anti-Indian movement. To make true on its stated policy goals, the American Lands Council must denounce – not join with – the country’s most prominent anti-Indian organization.
NOTES
[1] “Senator’s aide asked to leave after registering as lobbyist.” Bozeman Daily Chronicle. February 26, 2015. http://www.bozemandailychronicle.com/; Fielder, Senator Jennifer. Multiple articles. American Lands Council. http:/www.americanlandscouncil.org.[2] Fielder, Senator Jennifer. “Public land ‘sell off’ myth put to rest.” American Lands Council. October 20, 2014. http://www.americanlandscouncil.org/public_land_sell_off_myth_to_put_to_rest.
[3] Transfer of Public Lands Act and Related Study. 2012 General Session. State of Utah. http://le.utah.gov/~2012/bills/hbillint/hb0148.htm#.
[4] Willman, Elaine. “Elaine Willman’s activity stream.” American Lands Council. Undated. http://www.americanlandscouncil.org/elainewillman.
[5] For a discussion of the racist nature of the Oliphant decision, see Williams, Robert A Jr. 2005. Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis, MN: University of Minnesota Press.
[6] Willman, Elaine. “Observations and Recommendations by Elaine Willman while in Northwest Montana,” September 7-19, 2014. Posted by Becky Ivory October 21, 2014. http://www.americanlandscouncil.org/observations_and_recommendations_by_elaine_willman_while_in_northwest_montana_september_7_19_2014.
[7] Ethington, Eric. “A new report links Utah legislator to patriot groups.” Salt Lake City Weekly. August 16, 2015. http://www.cityweekly.net/utah/armed-resistance/Content?oid=2957325; Wilson, Ed. Utah Rep. Ken Ivory at Virginia City Montana This Week. Oath Keepers. May 19, 2014;http://oathkeepers.org/oktester/utah-rep-ken-ivory-at-virginia-city-montana-this-week/; Institute for Research and Education on Human Rights. Tea Party Nationalism. Fall 2010. Irehr.org.
[8] Anderson, Jack. 1996. Inside the NRA: Armed and Dangerous. Vancouver, BC: Newstar Press.
| [9] Bob Keenan et al v. Norman C. Bay et al. United States District Court for the District of Columbia. Complaint for Temporary Restraining Order, Preliminary Injunction and Declaratory Relief. Civil Action No. 1:15-cv-01440. The Kogan Law Group. https://turtletalk.files.wordpress.com/2015/09/20-dct-order-denying-tro.pdf. |
[10] Bob Keenan et al v. Norman C. Bay et al. United States District Court for the District of Columbia. Order. Civil Action No. 1:15-cv-01440. https://turtletalk.files.wordpress.com/2015/09/20-dct-order-denying-tro.pdf.
[11] Wilson, Samuel. Alliance cites fears of federal tribal policy. Daily Inter Lake. September 27, 2015.
[12] Monroe, Dustin. American Indians and Other to Protest Anti-Indian Conference. Char-Koosta News. September 24, 2015. http://www.charkoosta.com/2015/2015_09_24/Op-Ed-counter_rally.html.
[13] Frisen, Thomas. Letter to the Editor. The Missoulian. September 25, 2015.
[14] For a brief summary of this issue, see Enten, Harry J. Were Republicans really the party of civil rights in the 1960s? The Guardian. August 28, 2013. http://www.theguardian.com/commentisfree/2013/aug/28/republicans-party-of-civil-rights.
