On Oct. 17 in the Anchorage Daily News and AP, there was an article on a Tlingit artist who was told he’s violating law by using feathers in his art work. U.S. Fish and Wildlife is using gunboat diplomacy, by might not right, to discourage artists like Archie Cavanaugh from practicing his inherent rights that are covered by the Grandfather’s Clause. Black’s Law states, “Grandfather Clause is a provision in a new law or regulation exempting those already in or a part of the existing system which is being regulated. An exception to a restriction that allows all those already doing something to continue doing it even if they would be stopped by the new restriction.”
Mr. Cavanaugh did not violate any traditional Tribal law which is superior to any law in the State of Alaska. Indian Tribal Justice Act Excite-TITLE (1) there is a government to government relationship between the United States and each Indian tribe; (Note: It does not say we have to be recognized by the BIA either.) ( 4) Indian tribes possess the inherent authority to establish their own form of government, including tribal justice systems.
The Migratory Bird Act does not apply to the Native Nations of Alaska because we have our own laws that cannot be appealed or amended. We Native Nations still have Title to the lands, waters and resources. In 1821 the famous Ukase of Alexander l of Tsarist Russia attempted to claim Alaska declaring that the United States merchants can no longer trade directly with the Alaska Native Nations. In response to the claim, Secretary of State John Q. Adams, on behalf of United States President James Monroe, declared in diplomatic communications that this territory was not part of the Russian Empire and asserted that the Natives were “independent tribes inhabiting an independent territory”. The United States asserted that the Native Nations essentially possess the “Title” and dominion with “Full Sovereignty” and independence as any “European Nation” under the Law of Nations with equal footing as any European Nation.
The threat of fines and a possible felony have placed duress on Mr. Cavanaugh. These charges could be reversed giving the Tlingit Artist the power to charge U.S. Fish and Game agents with violation of the Genocide Act Public Law 100-606—November 4, 1988. Agents could be charged with a maximum fine of not more than $1 million and imprisonment for life.
George Suckinaw James, Jr.
2nd. Chair Kuiu Tlingit Nation
Ketchikan
Comments (4)
Add commentInteresting letter
Raises several questions for me:
1. "...Tribal law which is superior to any law in the State of Alaska."
Is the author saying that Natives don't have to follow any state laws? I'm guessing there are a lot of Natives sitting in Lemon Creek right now due to state law violations. Should they all be released, or at least re-tried under Tribal laws?
2. The Migratory Bird Treaty Act is a federal law, not a state law. Are Tribal laws superior to all federal laws as well?
3. This 'Grandfathers Clause' - so awhile back congress passed laws prohibiting the dumping of toxic waste in the water. Are you suggesting that the law only should have applied to NEW polluters, but those currently dumping could continue to do so?
4. And finally, I don't think Archie was being prohibited from practicing his craft. He just couldn't sell bird parts on the open market. He could still do the artwork, and tribal entities could purchase the pieces from him for use in traditional activities.
laws upon laws
There are many examples of laws built upon previous laws especially in the spiritual, cultural realm. Subsistence, art language are all cultural activities. We have many laws protecting the right to practice one's culture. By following a state or federal governments law does not preclude following your own laws (see the Native American Church). The government shall pass no laws restricting the practice of ones religion. If not allowing an artist to sell his wares to anyone impacts their ability to practice their craft then, then that law should be ignored. Would love to see a test case.
At least there is evidence
At least there is evidence that the American State laws still show respect to the tribal laws, which should be right. So in such a case, which law should precede the other? I am guessing they will be using the tribal law as the basis. As a lawyer in Alaska, does he have to be proficient in both schools of thought?
Yes,
In less the lawyer works for the Alaska Dept. of Law which neither respects the sovereign rights of the Tribes nor the jurisdiction over their own members, then they should know both.
The basis for much of common law was from Roman public trust ideas. The basis for some of the US Constitution was Iroquois Confederation law. Religion and cultural practices seem only to be considered separate when dealing with Native American practices. We can have recognized national holidays based on Christian tradition and build up an entire economy based upon them but do not allow a Native American to make a few bucks on practicing traditional cultural crafts?