Section 17 Federal Corporate Charter: Setting the record straight
The article written last week by Oliver Red Cloud, Vincent Black Feather, and Floyd Hand titled "New Headmen of the Oglala Lakota Oyate" is filled with distortions, and falsehoods.
In the article, they wrongly assert that if a Section 17 Federal Corporate Charter (also known as the "Business Council") is adopted: a coup d'etat of tribal government would occur; the Oglala Sioux Tribe will incorporate under the laws of the State of South Dakota; and the treaty rights under both the 1851 and 1868 Ft. Laramie Treaties would be diminished and ultimately striped away.
What's probably more disturbing than the article itself, however, is how the three authors rely largely on non-Indians, such as Bill Bielecki, to concoct poor arguments against the Section 17 Federal Corporate Charter that cannot withstand any serious legal scrutiny.
When adopted by the United States Congress in 1934, the Indian Reorganization Act had two major objectives: (1) to stop allotment and further loss of Indian lands; and (2) to provide Indian tribes with a means for reorganizing their governmental and economic structures.
Section 16 of the IRA allows Indian tribes to establish constitutional governments to exercise their inherent sovereign and governmental powers, and Section 17 of the IRA authorizes the Secretary of the Interior to issue a Federal Corporate Charter to Indian tribes to conduct business and economic activity.
When Section 17 of the IRA was first enacted, only those Indian tribes that have adopted a Section 16 constitutional government could have a Section 17 Federal Corporate Charter issued to it but only if the Indian tribe's membership approved the Section 17 Federal Corporate Charter by referendum vote. In 1990, however, Congress amended Section 17 of the IRA to allow all Indian tribes to have a Section 17 Federal Corporate Charter without the referendum vote of their tribal membership and regardless of whether the Indian tribe formed a constitutional government under Section 16. It should be noted that despite the 1990 amendment, the original and current Oglala Sioux Tribe Constitution in Article IV, Section 1(f) authorizes the Tribal Council to establish a Section 17 Federal Corporate Charter without a referendum vote of the people and until last week, that power was never exercised by the Tribal Council.
In a nutshell, a Section 17 Federal Corporate Charter: must be wholly owned by an Indian tribe, but the Section 17 Federal Corporate Charter conducts and manages any lawful business activity separate from the tribe itself; is empowered to hold property; is treated the same as the Indian tribe for tax purposes, which means that it does not have to pay any federal or state taxes regardless of whether its income is derived on or off the reservation; and it enjoys the Indian tribe's sovereign immunity, which means that the property and assets of the corporation may be placed at risk, but only to the extent necessary to satisfy the needs of lenders and developers, however, tribal assets held by the tribal government organized under Section 16 would remain fully protected by sovereign immunity.
There is nothing in the Oglala Sioux Tribe's proposed Section 17 Federal Corporate Charter that would allow the State of South Dakota to encroach upon the jurisdiction of the Oglala Sioux Tribe or that would diminish or strip away the treaty rights in both the 1851 and 1868 Ft. Laramie Treaties. For example, Article XVI, Section F of the Federal Corporate Charter specifically states, "Nothing in this Federal Corporate Charter, and no action taken by the Corporation pursuant to this Charter, shall be construed as permitting, recognizing, or granting the State of South Dakota or any other state any regulatory jurisdiction or taxing jurisdiction over the property or activities of the Corporation or its employees located within or outside of the boundaries of the Pine Ridge Indian Reservation."
Contrary to the false assertions of Red Cloud, Black Feather, and Hand, the truth is that the proposed Section 17 Federal Corporate Charter would be the primary mechanism for the Oglala Sioux Tribe to ultimately become economically self-sufficient and be competitive in the modern global economy. Since the buffalo economy was destroyed by colonization in the 1800's, the Oglala Sioux Tribe has suffered tremendously. That unfortunate history, however, could be reversed if Tribal Council Representatives have the courage to see through the lies, distortions, and falsehoods concerning the Section 17 Federal Corporate Charter and pass it.
We must remember that the Oglala Sioux Tribe is in a very unique position to harness and develop wind energy on the Pine Ridge Indian Reservation, which has the economic potential to surpass the revenues generated by successful gaming tribes.
Additionally, research by economists and political scientists conclude that those Indian tribes who are economically successful through either Indian gaming or through the development their natural resources have adopted Section 17 Federal Corporate Charters.
The passage of the Section 17 Federal Corporate Charter is the first step for the Oglala Sioux Tribe to realize its true economic potential in today's global economy.
Wind energy is going to be developed in South Dakota and it would be most unfortunate if the Oglala Sioux Tribe squanders its opportunity to be ahead of the game by developing its wind energy first and securing those transmission lines before private business interests off the reservation grab those opportunities and develop wind energy around the Pine Ridge Indian Reservation, thus ultimately leaving the Oglala Sioux Tribe poor, dependent, and at the mercy of federal programs, just like it is today.
Pine Ridge, S.D.