(c) Copyright 2003 - 2005 Kenneth R. Conklin, Ph.D. All rights reserved
This webpage focuses on ethnic Hawaiians, and how they would suffer disastrous consequences to their democratic and legal rights if the Akaka bill passes. The consequences would be most severe for those ethnic Hawaiians who choose to join the tribe; but there would also be consequences for those who choose not to join or who are opposed to the whole concept of Hawaiian tribalization.
A different webpage focuses on the disastrous financial and social consequences to local (non-ethnic-Hawaiian) businesses and communities if the Akaka bill passes. Ethnic Hawaiians would also suffer these kinds of consequences, to the extent that they continue to operate non-tribal businesses or live outside tribal lands. To read about general business and social consequences of the Akaka bill, affecting all Hawai’i residents, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/tribeimpactbizandcommunity.html It should also be noted that many ethnic Hawaiian activists have opposed the Akaka bill from the very beginning, and their opposition is growing.
THE UNDEMOCRATIC PROCESS WHEREBY THE AKAKA TRIBE GETS CREATED
First, it must be understood that the Akaka bill is exclusively for ethnic Hawaiians. At no time will the general population of Hawai'i ever be given a chance to vote on whether to implement the Akaka bill. That means that 80% of Hawai'i's people will never have a chance to refuse to allow Hawai'i to be carved up along racial lines, to create an apartheid government. Also, once the bill passes and gets implemented, only ethnic Hawaiians can participate in electing a tribal council and in writing a constitution. Once the council has been elected it is theoretically possible that the council might write a constitution that would allow people without Hawaiian ancestry to join the tribe or to participate in tribal elections or receive tribal benefits; but it is extremely unlikely that would happen, given the racially exclusionary policies of every ethnic Hawaiian institution in recent memory, including OHA, DHHL, Kamehameha Schools, Papa Ola Lokahi, Alu Like, Queen Lili'uokalani Childrens Center, and the 160+ benefit programs cited by OHA in court documents. The whole concept of the Akaka bill is "self-determination" for ethnic Hawaiians, so it should not be surprising that ethnic Hawaiians are the only people allowed to participate in the tribal government or to receive benefits.
But it might come as a big surprise to ethnic Hawaiians to know that even they are treated very undemocratically by the Akaka bill process.
No version of the Akaka bill ever proposed (2000-2003) has included any provision calling for an election among all adult ethnic Hawaiians to decide whether or not the provisions of the bill should be implemented so as to create a tribal government. That means that even if ethnic Hawaiians are overwhelmingly opposed to creating an Akaka tribe, it doesn't matter. Hawaiians who want independence from the U.S. and therefore refuse to participate will have no way of voting to stop the tribe from being created. Hawaiians who like being Americans, who support a single sovereign government of Hawai'i and equality under the law, and who oppose racism will have no way of voting to stop the tribe from being created.
The tribe will be created by however many ethnic Hawaiians decide to participate in creating it. There is no requirement for a majority of ethnic Hawaiians to participate. Indeed, there is no minimum quorum at all. Census 2000 identified more than 400,000 people in the U.S. who checked a box indicating that one of their ancestries is Native Hawaiian (including 240,000 in Hawai'i, 60,000 in California, and 100,000 in the other 48 states). It is quite possible that only a few thousand people might initially sign up for the tribe's charter membership. They would be the only ones eligible to vote in elections for the tribal council, which then has power to make decisions binding on all ethnic Hawaiians.
Once the tribal council has been elected, it then has the power to create a constitution, or governing document. The bill does not provide for any election among all adult ethnic Hawaiians to ratify the tribal constitution produced by the council. The Akaka bill says the tribal council MAY (not must or shall) submit the constitution to enrolled tribal members for ratification, before then submitting it to the U.S. Secretary of Interior for approval. But if the council does decide to hold an election to ratify the constitution, the only people who get to vote whether to approve the constitution are the people who were already enrolled to vote in the election for the tribal council (perhaps only a few thousand).
Supporters of the Akaka bill, and especially OHA officials, will say that every effort will be made to enroll many tens of thousands of ethnic Hawaiians. They will say there will be massive outreach programs throughout Hawai'i, the United States, and the world to enroll a maximum number of Hawaiians.
But remember that time is of the essence. Consider the scare tactics being used to pressure both ethnic Hawaiians and non-ethnc-Hawaiians into supporting the Akaka bill. The main scare tactic is that the Arakaki2 lawsuit threatens to dismantle OHA, DHHL, and all the racial programs within the 2 to 4 years it will take for the lawsuit to work its way through the courts to a final decision by the U.S. Supreme Court. Therefore, according to both OHA and State of Hawai'i officials, it is urgent to pass the Akaka bill and to go through the process to set up the "nation" and get federal recognition. Therefore, it is to be expected that any outreach programs to enroll more members would be of rather short duration. And having fewer members would play right into the hands of the power-hungry officials at OHA, whose control of the process will be stronger if there are fewer members to disagree with them.
The democratic or undemocratic provisions written into the constitution are entirely up to the tribal council (and to the approval of the Secretary of Interior, and to the approval of the previously enrolled members voting in an alection if there is any election). For example, the constitution might allow additional members to sign up on tribal rolls provided they meet certain requirements of ancestry or residency or wealth. The constitution might set some sort of blood quantum requirement for tribal membership, thereby excluding some or even most people who have Hawaiian ancestry, although that is considered unlikely. The constitution might have provisions making it difficult for additional members to enroll (because having fewer members would allow the tribal wealth or federal appropriations to be divided into fewer shares). The constitution might provide for elections of tribal officers by the normal processes of secret ballot; but it could instead say that officers shall be elected by "consensus" or by a show of hands at a meeting. Or perhaps the constitution might say that officers shall be named by a committee of geneologists, or by an election restricted to tribal men older than 75 (a kupunakane council).
WHAT ARE THE BENEFITS OF TRIBAL MEMBERSHIP, AND WHO GETS THOSE BENEFITS? WHAT HAPPENS TO ETHNIC HAWAIIANS WHO ARE NOT TRIBAL MEMBERS?
Enrolled members of federally recognized tribes might get money, land, healthcare, education, and other goodies, according to whatever laws are passed by Congress. Different tribes get different kinds and amounts of goodies, depending on ancient treaties between tribes and the U.S. and, more importantly, depending on how powerful their Senators, Representatives, and lobbyists are in Washington. That's why tribes make enormous political campaign contributions and hire expensive lobbyists, and why there is so much corruption in the process. Some tribes now make hundreds of millions of dollars in profits from casino gambling; and tribes are exempt from the laws limiting campaign contributions because they are "sovereign" governments outside the authority of those laws.
However, individual Indians do not get any money or goodies directly from the federal government. Everything is funneled through the tribal leadership. That's what it means to say that tribes have a "government to government relationship" with the U.S. So the U.S. gives money and goodies to the tribe, and the tribal leaders decide which individual tribal members get how much money and goodies. Some of the money and goodies are for institutions or facilities that benefit all tribal members, such as schools, hospitals, health centers, roads on tribal reservations, etc. But often there is great flexibility and discretion in deciding which individuals get benefits. For example, some college students get tribal scholarships and others do not. Some cultural activities get funded and others do not. That means there is tremendous pressure on individuals and families to "suck up" to tribal leaders. Nepotism, bribery, and corruption are commonplace.
At present in Hawai'i, every individual who has Hawaiian ancestry is eligible to receive benefits under numerous government programs. But if the Akaka bill passes and an Akaka tribe is created, then government benefits will go only to enrolled members of the Akaka tribe. When people now getting benefits discover they can no longer get them without joining the tribe, they will then apply to join. And the tribal leadership might very well refuse to let them in. That's because the dollar value of federal benefits given to the tribe is set at the start of a budget year in an appropriation from Congress, and the benefits must be divided among enrolled members. Thus, allowing a large number of new members to join would cut down the benefits current members could get, at least until the budget cycle for the next fiscal year. Indian tribes on the mainland often refuse to enroll new members, and sometimes DISenroll existing members who have fallen out of favor with tribal leaders.
What benefits are currently available to ethnic Hawaiians (and perhaps could be negotiated to continue through the Akaka tribe)? On February 23, 2000 the U.S. Supreme Court handed down its decision in Rice v. Cayetano. On March 20, 2000, less than a month after the Rice decision, the Honolulu Star-Bulletin launched the campaign to scare Hawai'i's people about the consequences of losing the racial entitlement programs. An article was published identifying $440 Million in federal grants made to Native Hawaiian racial entitlement programs during the previous few years, as compiled by the Hawai’i Congressional delegation. "Bringing home the bacon" is an important part of what politicians do, and Hawai’i politicians are outstanding performers. Later, OHA compiled a list of about 160 racial entitlement programs. To see the Star-Bulletin description of $440 Million in federal grants, and OHA’s list of 160 racial programs, go to:
However, many currently existing racial programs are already showing signs of nepotism and corruption, and providing benefits to wealthy insiders. For example, there is a $500 Million boondoggle to provide cable wiring to all the Hawaiian Homelands under a federal program to provide phone service to rural areas, despite the fact that some homelands are in urbanized areas and others are completely uninhabited. That program involves clear nepotism and insider dealings among OHA trustees, DHHL officials, and Kamehameha School officials. There is a recently developed homeland at "Kalawahine Streamside" where wealthy ethnic Hawaiian professionals and business executives get land for $1 per year to build homes that were valued at $385,000 in the depressed housing market of 2000. And Section 10 of the Akaka bill, called "Ethics," specifically allows for nepotism in federal contracting. For details on everything in this paragraph, see:
TRIBAL MEMBERS LOSE IMPORTANT RIGHTS COMPARED TO U.S. CITIZENS WHO ARE NOT TRIBAL MEMBERS
The subject of Indian law is extremely complex. A surprising amount of Indian law is devoted to disputes between individual Indians and their tribal leaders, and jurisdictional disputes between tribes and the states or towns near them. An excellent book on this topic is by William C. Canby, Jr., who is Senior Judge of the United States Court of Appeals for the Ninth Circuit: “American Indian Law in a Nutshell,” 3rd ed., 1998.
One way to grasp the "big picture" is to consider the difference between homeowners who own freestanding houses (analogous to ordinary citizens of the United States) vs. apartment owners who live in condominiums (analogous to tribal members). A condominium owner has many services provided to him by the condo association, which owners of freestanding homes would need to provide for themselves -- things like painting the buildings, maintaining the driveway, or fixing the mailbox. Contracts for condo building maintenance are made by the condo board of directors on behalf of apartment owners. Apartment owners have severe restrictions on what they can do in the "common areas" such as hallways, laundry rooms, parking lots, etc. Things which most homeowners can do may be against the rules of the condo association, such as having a dog, painting their front door a different color, or doing car repairs in their parking space. People who buy a condo apartment are sometimes unaware of the severe restrictions and loss of freedom that come with that sort of lifestyle, and then find themselves in constant conflict with neighbors, the resident manager, and with the condo board of directors. Another way to understand the loss of rights is to consider how U.S. citizens lose Constitutional rights when they enlist in the military. An Army officer or enlisted person is still a U.S. citizen, but loses the right to freedom of association, the right to free speech, the right to choose where to live, and the restriction of legal rights in courts-martial.
Individual Indians are citizens of the United States, and of the state where they live, with all the same Constitutional rights and legal rights as any other citizen. But when an Indian enrolls as a member of a tribe, he loses many of those rights. Voting rights, property rights, freedom of speech, freedom of religion, freedom from discrimination, the right to join a labor union, etc. can all be severely affected. The loss of rights for Indians enrolled in a tribe is much more severe than the loss of rights by an apartment owner in a condominium. That's because a tribe is a sovereign government, whose powers are generally similar to those of a state government and superior to the powers of most cities and counties. The loss of rights is most severe for tribal members living on tribal lands; but it can also affect tribal members living "off the reservation" as well as non-Indians who have significant on-going interactions with tribal businesses or tribal members.
Some tribes have their own police departments and courts, and enforce their own tribal laws which can be very different from the laws of surrounding non-Indian communities. Cultural practices are reflected in tribal laws, so that theft, spouse abuse, possession of liquor or firearms, etc. might be handled in very different ways. In recent years Americans have become aware of the way some Islamic nations punish thievery (chop off the right hand) or adultery (cheating woman gets stoned to death). Indian tribes don't go to the extremes of the Islamic nations; but cultural practices as reflected in law can be quite great. Some Indian tribes maintain their own schools and colleges, where students and teachers are required to swear certain oaths and engage in certain religious rituals, or prohibited from expressing certain views. Tribal courts and legal procedures may not provide the same standards of due process. Legal rights for women might be significantly less than rights for men. Accused criminals might be required to testify and not remain silent. People might be confined to jail, or have their property confiscated, without due process of law. Elders, tribal leaders, or prominent families might have special rights, powers, or immunities based on age, gender, geneology, or political office.
In September 2003 Senator Kyl of Arizona wrote a letter to his constituents explaining why he opposes the Akaka bill. His reasons are mostly focused on the bill’s unconstitutionality. But included in his letter he says the following about how the Akaka bill would severely damage the constitutional rights of those Native Hawaiians who choose to enroll in the tribe, as well as their ability to have normal relationships with their non-tribal neighbors. Here are the relevant parts of his letter:
“I believe that the Akaka bill also violates the U.S. Constitution. The tribal governments on Indian reservations in the continental United States were preserved as separate entities when their surrounding states entered the union. These governments are not subject to the U.S. Constitution's Bill of Rights. The proposed Native Hawaiian government likewise would not be bound by the Bill of Rights. But, unlike reservation Indians, all of Hawaii's citizens have been subject to state law ever since Hawaii entered the union - and all Hawaiians receive the full protection of the Bill of Rights. By subjecting Native Hawaiians to a government that is not bound by the Constitution, the Akaka bill effectively would take away these constitutional rights from persons who currently enjoy their protection. This is something that I believe Congress neither can nor should do. The Akaka bill would authorize persons with some Native Hawaiian blood to form a Native Hawaiian government. This government would have powers identical to those of a reservation Indian tribe - the power to tax, regulate, and make laws for its members. On a practical level, it is difficult to imagine how such a government would interact with the rest of Hawaii's people. ... unlike reservation Indians, Native Hawaiians do not live in one area of the State that is set aside for Indians. They live in the same cities and neighborhoods, and on the same streets, as other Hawaiians do ... If Congress were to create a separate tribal government for Native Hawaiians, it would be imposing just such a system on the people of Hawaii. Persons of different races, who live together in the same society, would be subject to different legal codes. This would not produce racial reconciliation in Hawaii. Instead, it is a recipe for permanent racial conflict.”
The full text of Senator Kyl’s letter can be seen at:
The following articles and essays describe the loss of rights and freedoms experienced by enrolled members of tribes. Each one is accompanied by a URL where the original item can be seen in full.
Tribes have sovereignty over their own internal laws. Among other things, that means tribal leaders can give benefits to those they like, and withold benefits from those they dislike. Tribes can even expel (disenroll) members who might disagree with the policies of the tribal leadership. Tribes might also choose to expel members simply in order to reduce the number of members entitled to receive money, thereby increasing the amount of money distributed to each of the surviving members. And those individuals abused by their own tribe might have no way to get justice from the state or federal governments, since tribal governments have “sovereignty” and claim to be exempt from the jurisdiction of state or federal courts on many issues (one of the most fundamental elements of “sovereignty” is the right of a tribe to decide who are its own members). The first two articles below focus on disenrollment horror stories.
For tribes, members only
Last year, one of the largest families on the Redding Rancheria committed what Indians call the ultimate desecration: They dug up the remains of two of their ancestors for DNA testing. "It's a sacrilege, it's totally disrespectful, but I had to do it," said Bob Foreman, elder statesman of the 76-member clan. It was either that or get kicked out of the tribe. The rancheria's enrollment committee had ordered the Foremans to prove they were the direct descendants of the family matriarch, the late Virginia "Nano" Timmons, or be stripped of their tribal membership - including health and education benefits and about $40,000 a year per person from the tribe's Win-River Casino. On Jan. 28 - even after three DNA experts concluded the Foremans almost certainly were Timmons' direct descendants - the tribe voted all 76 family members out and banned them from the casino. Each of California's more than 100 federally recognized tribes, as nations unto themselves, has virtually absolute power to decide who belongs and who doesn't, regardless of how much evidence there is to the contrary. "We're a sovereign nation - we don't have to justify to anybody our tribal laws or ordinances," said Redding Rancheria Chairwoman Tracy Edwards. "If France or Nevada or anybody else is making decisions about their citizenship, there's not a whole lot I can do about it." The Foremans joined hundreds of California Indians who have been banished from gambling tribes in recent years, often because they challenged the ruling faction, questioned the tribe's finances or were on the losing end of decades-old family feuds. About 2,000 more are fighting disenrollment, said Laura Wass of AIM, the American Indian Movement, which has fought for native rights nationwide. Wass, a California Indian who is working with outcasts from 13 tribes, called the wave of disenrollments "a massive form of cultural genocide." She and other Indian advocates blame failed federal Indian policies and the greed spawned by Indian casino profits.
Las Vegas Review-Journal, Sunday, May 22, 2005
About 100 protest being disenrolled by tribes
By CHRIS T. NGUYEN
THE ASSOCIATED PRESS
TEMECULA, Calif. -- More than 100 American Indians ousted from their casino-owning tribes joined hands Saturday to protest what they called the growing problem of money grabs by tribal leaders through disenrollment.
It was the first such large-scale organized gathering for people who contend they have been excised from tribal rolls by leaders seeking a larger share of gambling profits. As tribal gambling grows into a $17 billion industry, disputes over disenrollment have flared nationwide. More than 1,000 people are fighting ouster in California alone.
"There needs to be a healing in Indian country and we're going to start it," said John Gomez Jr., who was removed from the local Pechanga Band of Luiseno Indians.
Gomez was joined at a public park in this Riverside County community by former members of 16 tribes from California, Arizona, Nevada, New Mexico, Oklahoma and New York. They planned another meeting in Nevada and said they were asking Congress to hold hearings on disenrollments.
Bob Foreman, 68, was ousted from the Redding Rancheria tribe in Northern California in January 2004, along with 65 members of his family. In an effort to prove his ancestry, he exhumed the bodies of his grandmother and mother to collect DNA evidence. Still, he said, tribal leaders refused to reinstate him.
"I don't think I could forgive or forget," said Foreman, who had served several terms as tribal chairman and had received about $2,500 a month in casino revenues before he was ousted. "Sovereignty -- it's given tribes the power to do anything they want. It's greed."
Disputes over tribal status also have played out in state courts. In California, 11 former Pechanga Band members sued in March 2004, representing an extended family of 130 adults and about 70 children who claim ancestry to the tribe. They claimed to have lost about $120,000 a year in profits from the tribe's popular casino.
Superior Court Judge Charles Field declined to dismiss the suit, ruling courts have authority over legal matters that arise from tribal disputes. The case is being heard in an appellate court.
Sovereignty and Civil Rights
By Julie Shortridge
*** Excerpts ***
Many citizens assume that our federal and state governments support the basic American goals of freedom, fairness, and "equal justice for all." After all, these are founding principles on which our nation and constitution were established.
But many state and federal court judges, the state attorney general, the governor, and Minnesota's members of Congress tolerate a policy that specifically denies American citizens their most basic constitutional rights.
Indian people living on reservations are not granted the same civil rights the rest of Americans take for granted, such as freedom of speech, freedom of assembly, open elections, a trial by a jury of one's peers, legal representation of one's choice, and the right to due process in a court of law. Non-Indian people who enter onto a reservation or "tribal trust status lands" also give up these basic civil rights and constitutional protections.
"Tribal sovereignty," the notion that tribes are self-governing nations, and a concept that many people assume is beneficial to Indian people, actually benefits only a few individual tribal government leaders, and takes rights and freedoms away from Indian citizens.
Just like on a military reservation, there is no inherent, constitutional protection of speech, assembly and the press on Indian reservation land. Tribal chief executives and tribal councils get their authority from the Secretary of the Interior and the BIA, not from the voters who elect them. And because the tribal government controls all tribal businesses, services, housing and most employment, they are able to rule nearly all aspects of reservation life.
There are no checks and balances in the tribal system of government; no separation of the judicial, legislative and administrative branches of government. The Freedom of Information Act and Open Meeting Law do not apply on reservations. Neither does the Bill of Rights. In 1968 Congress enacted a separate "Indian Bill of Rights" in an effort to rectify this fact, but in 1978, a Supreme Court decision ruled that Indian tribal governments themselves could decide how and to what extent Indian civil rights would be applied, if at all.
The decision rendered the Indian Bill of Rights virtually worthless. A tribal chief and tribal council not only have full executive, legislative and judicial authority on the reservation, they also decide if and to what extent their citizens have any rights or freedoms. Tribal chief executives and tribal councils become dictators. They appoint and remove tribal judges as they wish, and can control the outcome of judicial decisions. Tribal chief executives and tribal councils can and do dictate if, how and against whom tribal laws are enforced.
One of this country's founding fathers, James Madison, wrote in the late 1700s, "The accumulation of all powers - legislative, executive, and judiciary - in the same hands, may justly be pronounced the very definition of tyranny." Madison was right, and tyranny is what we see today in tribal governments. Read a month's worth of Indian newspapers, such as Indian Country Today, News from Indian Country, and Native American Press/Ojibwe News, and it becomes evident that corruption in tribal governments is the norm, not the exception.
Tribal governments are not obligated to make their financial records available to the public, yet they control who on a reservation gets a job, a house, and health care services. This lack of accountability allows tribal officials to hide criminal conduct, incompetence, and corruption, and has resulted in tribal dictatorships. Several federal convictions of tribal leaders for theft, fraud, money-laundering, vote rigging and other crimes have barely scratched the surface of tribal government corruption. A full 80% of Indian people have left the reservation to escape these conditions.
Congress and federal courts must take the blame for this corrupt and abusive system. They are the ones who created it, and they have the legal right, power and authority to end it at any time. But instead the federal government currently claims that over 550 Indian tribes are "sovereign nations," with the right to have separate governments, separate courts, separate laws, and independent control of land and resources without state regulations and exempt from many federal regulations as well.
How is it that the United States maintains separate "homelands" for a race of people where they are not protected by the same constitutional rights, receive unequal protection under the law, and are subject to different regulations? How did this country, a nation so vocal, so active in condemning South African apartheid, come to create a similar apartheid situation for millions of its own citizens?
Tribes are not sovereign at all. The United States government owns reservation land, not tribes. Tribal lands are federal territories, owned and controlled by the United States government, which has been put in reserve, similar to a military reserve, for the use of an Indian tribe. Based on our system of law, land is what sovereignty is based upon. Tribes are not "sovereign nations" because they have no sovereign control over any land holdings; there is no "nation."
Indian tribes rely almost entirely on federal government support to continue to exist, and on federal government permission to do almost anything. Tribes exist not as independent governments, but as an extension of the federal government.
A growing number of citizens and judges in the state are taking a critical look at federal Indian policy, questioning its constitutionality, and analyzing its effect on Indian people.
Most notably, Judge R.A. (Jim) Randall of the Minnesota Court of Appeals wrote a thoughtful dissent about the issue in the case of Cohen v. Little Six, Inc. (1996 WL 56477 Minn. App.). The case involves Sylvia Cohen, an elderly casino customer, who was seeking compensation for medical expenses after she broke her hip when the chair she was sitting on at Mystic Lake Casino broke underneath her. The tribe successfully argued that Mrs. Cohen cannot seek damages in state court because Mystic Lake Casino is on tribal trust status land, and is therefore on sovereign soil, and the tribe cannot be sued except in their own court which is set up under their own rules, which the tribe establishes and changes as it sees fit. Judge Randall disagrees, and writes:
"Reading. . . federal cases solemnly discussing Indian sovereignty, as if it were a viable issue, I feel as if I am in a time warp, reading Dred Scott v. Sandford or Plessy v. Ferguson, as if these cases were still the law of the land. ... Any argument that American Indians are different from the rest of us and therefore, are sovereign or quasi-sovereign, and reside on sovereign or foreign land, is put to rest by our actual treatment of them, and by the fact that in 1924 by the Citizenship Act, we conferred full U.S. citizenship on American Indians. We are individual citizens of a state that is part of a highly organized federation of states, comprising one indivisible sovereign, the United States of America. ...Thus, what is strange to me, is that despite the overwhelming, undeniable fact that Minnesota Indians are full Minnesotans and full U.S. citizens, we still persist in treating American Indians on some sort of parallel tract, some sort of "separate but equal" treatment which we denounced in 1954 with Brown v. Board of Education. ...What I am talking about is attempting to formalize a parallel Indian tribal court system purporting to have equal, and at times paramount, jurisdiction over state and federal courts. ... [There are] insoluble incongruities, ...[and] justice denying anomalies that abound when we attempt to interject a third parallel race-based court system along side our two historical court systems. ...Why do we not have "African-American courts," "Hispanic courts," Chinese courts," or "Korean courts?" ... I suggest that if we tried to establish "racially based courts," the constitutional issue of the denial of due process issue, the race-related and race-baiting issues, and the ill-will and divisiveness that would follow would serve to overcome us as a country. ...Why here, are we tolerating segregating out the American Indians by race and allowing them to maintain a parallel court system and further, subjecting non-Indians to it? To me, this is red apartheid. I believe this entire issue of 'sovereignty' rests on true red apartheid. The American Indian will never be fully integrated into this state, nor into this country, until we recognize this 'dual citizenship' for what it really is, a pancake makeup coverup of Plessy which allowed 'separate but equal' treatment."
Judge Randall goes on to say that the important goals of protecting Indian culture, spirituality, self-determination, freedom, and way of life can best be done within the state and federal systems, in which we protect these same freedoms for all citizens of all colors. He points out that the Amish, and other sub-groups with diverse cultures, thrive within our state and federal jurisdictions.
With all the billions of dollars our federal government spends each year for Indian rights -- be they treaty rights, aboriginal land rights, sovereignty rights, rights to remain in trust status, etc. -- why are few government officials talking about true Indian rights as U.S. citizens? The right to a fair trial, the right to legal representation, the right to free speech, free press and freedom of assembly, the right to own land and a home, and to be free from dictatorial governments -- these are the rights that will free Indian people from the oppression and widespread poverty they now live under.
And giving reservation Indians these rights would require no costly lawsuits or expensive attorneys. We should simply grant them these rights, as they deserve as American citizens. But doing so would mean an end to their separation on federally controlled racial "homelands," and an end to this charade of "sovereignty." The federal government, who owns and controls tribal land, does not appear ready to give that up. Neither do Indian government officials who enrich themselves off of misguided federal policies.
USA Today, May 21, 2004
Feds probe tribal prison deaths
Federal investigators have uncovered abuse, neglect and inhumane conditions in the Native American prison system that could have contributed to some deaths, Interior Department officials said Thursday.
An undisclosed number of deaths are being investigated by the department's Inspector General's Office as part of an investigation into run-down prisons on tribal lands across the nation, said Dave Anderson, Interior's assistant secretary for Indian affairs. He declined to elaborate on the number of deaths being investigated, how the victims were killed or whether they included employees as well as inmates.
Anderson said investigators have found that some juvenile offenders have been forced to share cell blocks with adult inmates in the prison system, which in 2002 held 2,006 inmates in 74 prisons scattered across 55 million acres of Indian lands in the USA.
The probe also has found that some guards routinely have been put at risk because of staffing shortages in 30-year-old facilities where some cell doors no longer can be locked.
Several facilities with no running water, heat or working toilets are depicted in a videotape that was prepared by Ed Naranjo, a retired law enforcement official with the Bureau of Indian Affairs (BIA). The bureau oversees the prisons as part of the Interior Department. The tape, which also shows areas in which inmates could get access to guns seized in criminal cases, was given to Interior investigators earlier this year.
Hawaii Reporter, August 24, 2005
Native Americans Issue Warning About Akaka Bill, Federal Recognition
No Protection from the U.S. Constitution, Gambling, Unfair Competition in Business and Custody Disputes All Bring Down Native Americans
By Malia Zimmerman
Native Americans throughout the county working to help tribal members with a variety of issues say they are trying to warn native Hawaiians who may be considering supporting the Akaka Bill, about the problems with federal recognition and how it affects their world.
The Akaka Bill, which is pending a vote before the U.S. Senate this September 6, would, according to its own author U.S. Sen. Daniel Akaka, allow Hawaiians to gain federal recognition as a Native "tribe" and could even lead to secession or an independent nation of Hawaiians-only. "That could be. As far as what's going to happen at the other end, I'm leaving it up to my grandchildren and great-grandchildren," Akaka said when asked by a NPR reporter if the bill could lead to sovereignty or outright independence.
Many Native Americans who understand the Akaka Bill are worried enough about its potential impact on Hawaii, the nation, and individual Hawaiian citizens that they, and their associates in states across the mainland, are lobbying against the bill in Congress.
Here is why.
There are so many problems, that 4 out of 5 Native Americans no longer live within reservations or submit themselves to tribal governments.
That is in part because Federal Indian policy promotes tribalism and tribal governments, and depends upon the those governments to act in the best interest of their members.
Some tribes do represent their people well, but most don't, according to Elaine Willman, a Native American of strong Cherokee ancestry through her mother and father's lineage.
Since 2002, Willman has served as Chair of the Citizens Equal Rights Alliance, formed in the early 1980s to assist enrolled tribal members with oppressive tribal governments. More recently the Citizens Equal Rights Alliance assists non-tribal members and communities confronting aggressive tribal overreaching, land claims and off-reservation tribal casinos.
She says Native American tribal governments and federal Indian policy, are not only a failure, in terms of providing quality of life for American Indians, but in many cases, have caused great disruption, disappointment and desolation within their own reservations, and nearby communities they border.
Accompanied by Kamie Biehl, a videographer, Willman recently made a 6,000-mile journey across 17 Indian reservations between Washington State and New York. On camera, they captured the voices of tribal members, local elected officials, law enforcement personnel, farmers, bankers and teachers. Many of these Americans of diverse cultures who spoke with Willman have grown up together and are now bonded, not only by their past experiences, but by their deep worries about the spread of tribalism in America, which they see is not in the best interest of individual American Indians. It's all about promotion of power and influence of tribal government leaders, they say.
There are certainly exceptions, say Willman. A few tribes, such as the Puyallup in Washington State, The White Earth in Minnesota and Seminoles in Florida, have greatly enriched their members with gambling revenue. Most tribal members, even those whose tribes have lucrative casinos, still live in severe poverty and in the despair of addictions, crime and family dysfunction.
Willman and Biehl have produced a documentary and book, entitled "Going To Pieces ... The Dismantling of the United States of America."
Within the "issues" chapters toward the end of the journey-book, Willman included a chapter on Hawaii and the Akaka Bill, because she believes the problems she sees are on the verge of becoming a reality in Hawaii. And if race-based governments focused on collectivism, and not individual citizen protections, continue to spread -- if the Akaka Bill passes -- the precedent is set wherein Congress defiles the principles of equality in the Constitution and permits separate, balkanized governments apart from the United States.
"Every individual Hawaiian needs to consider the current freedoms and protections they enjoy, and how willing they are to enroll in some undisclosed ‘tribal’ governance system. A system that will likely neutralize or outright rescind their current privileges, rights and protections as a citizen of the state of Hawaii, and as a citizen of the United States," Willman says.
People Enrolled in Tribe Have No Legal Protection from U.S. Government
The Native American justice system is different than that in the United States. Few, if any, tribal governments fully acknowledge the Constitution or Bill of Rights within Indian reservations.
If a tribal member is convicted of a crime in tribal court, there are limited appeal options, if any.
Conversely, if a Native American tribal member commits a crime off of the reservation and then returns to the reservation, it can difficult to "extradite" that tribal member for accountability in the American justice system.
That is because the federal government has a "trust" relationship with tribal governments, but this does not extend to individual enrolled tribal members.
The federal government does not insert itself into "internal matters" of the tribe, which means troubled tribal members who lack basic U.S. Constitutional protections within their tribal government have no place to go in state or federal courts to complain about treatment received by their tribal government.
Native American Tribal Members Pay No Taxes to State or Federal Governments and Can Unfairly Compete With Outside Businesses
Willman and other Native Americans say tribal governments receive billions of dollars in subsidies from the federal and state governments and millions of acres of land. Tribal governments can operate through their enrolled members, tax-exempt tribal businesses, often located intentionally next to similar private businesses in communities.
Because tribal businesses are tax-exempt, and adjacent to private businesses that do pay tax, there is an unfair competition. The business that has to pay tax cannot compete under these circumstances, and usually closes down within a few months. The non-Native American employees lose their jobs and the community loses a vital part of its economy.
Former Supreme Court Justice Robert Klein, who represents the Office of Hawaiian Affairs, a government-funded organization lobbying for the bill, admitted in a debate Monday, Aug. 22, that under the Akaka Bill, businesses owned by native Hawaiians could be exempt from charging their customers state and federal taxes.
Gambling Start-Ups Blossom Despite Promises in Writing to the Contrary
Indian tribes are operating more than 411 Class III (slot machines) gambling casinos in areas where there was none before, even if they have promised in writing to the community and the government before acquiring the federal land for the casinos that they would not do so, Willman says.
There are loopholes, and only minimal enforcement in the Indian Gaming Regulatory Act that allow this, warns Willman. Once a separate, "tribal" government acquires land, virtually anything goes, the Native Americans interviewed for this story say.
Proponents of the Akaka Bill have denied there will be any gambling in Hawaii because of the Akaka Bill. However, U.S. Sen. Daniel Akaka has not yet made this clear in the current version of the Akaka Bill, a fact even the U.S. Justice Department notes in a recent letter to the state.
Native Americans interviewed for this story say even if the bill does clearly say "no gambling under any circumstances", once the land is transferred to a new Hawaiian government, the local and federal governments also transfer the power to make such decisions.
Willman says if gambling is legalized, expect an immediate, substantial and continuous drain on local businesses and economies, and a depletion of the state's sales and property tax resources.
State and local economies will take a heavy hit, as will the family budgets of thousands of Hawaiians.
"You never see an empty parking lot at a gambling facility," Willman says.
Indian Child Welfare Act Not In Best Interest of Children or Families
Congress has given tribal governments superior authority over parental rights of enrolled tribal members through the Indian Child Welfare Act.
Congress has stripped tribal parents of their rights, and then does not "interfere in internal tribal matters," so tribe's can overpower parents in order to preserve their culture, and parents are essentially helpless, Willman says.
If there is a divorce and the tribal member wants to leave the reservation, while one wants to stay, the tribe decides the children's fate, not the parents.
"Parents have very little, if any say, in this world," Willman says.
How Native American Recognition Applies to Akaka Bill
What does all this have to do with Hawaii and why should the people of the state care?
Native Americans watching the Akaka debate from afar say they believe proponents are unhappy with the U.S. Constitution and a republican form of government, and have a very different government in mind for Native Hawaiians.
They note the Akaka Bill’s main supporters are not willing to reveal what type of non-democratic, new government could or would be created in the future that may nullify the individual rights of newly enrolled "Hawaiian tribal members," Willman says.
The native Hawaiians who support the Akaka bill may expect an improved quality of life when switching allegiance away from the U.S. Constitution, but they are quite likely to experience exactly the opposite -- the loss of individual freedoms for the power of the collective whole, Willman says.
Hawaii’s Gov. Linda Lingle calls these discussions over a separate race-based government, a separate tax system, gambling, and a different justice system "scare tactics." Klein, who represents the Office of Hawaiian Affairs, repeatedly calls these facts presented by the Native Americans and others concerned with the Akaka Bill "fear-mongering."
But Willman says lives in this world, which is "reality" for thousands of Native Americans enrolled in 567 tribal governments whose leaders thrive, while people they are supposed to represent, don’t.
She counters that far more" frightening and deceiving" is the complete absence of information provided to Hawaiians regarding what shape and form a new government would take.
"Hawaiians are supposed to accept some secretive new government on faith alone, and believe that the new government will protect them as individuals where tribal governments do not promote individual protections. Most tribes do not even provide a secret ballot, forcing members to raise their hands in front of intimidating incumbent leaders. Raising one's hand at the wrong time during elections can result in the loss of a job, housing, services, ‘per capita’ (tribal stipends) and other needed benefits," Willman says.
Some proponents of the Akaka Bill admit that currently the bill leaves wide open the possibility of tax exemptions, gambling, land transfers and an independent nation from the United States, but justify its passage saying the bill is needed to protect native Hawaiian programs and lands.
Willman and other Native Americans interviewed say there are too many questions still to be answered, which the proponents of the Akaka Bill cannot or have not answered.
Do Indian Reservations Equal Apartheid?
by William J. Lawrence, J.D.
** Excerpts **
Editor’s note: Bill Lawrence is publisher of Native American Press / Ojibwe News and a member of the Red Lake Band of Chippewa. The following editorial appeared in the June 6, 2003 issue of the Ojibwe News.
The fact is that the federal government created Indian reservations in this country which were designed to separate people by race. The reservation system has largely been an abject failure in providing for the best interests of the Indian people.
As a member of the Red Lake Band and the publisher of the Native American Press/Ojibwe News, I am confronted daily with the reality that on most Minnesota Ojibwe reservations, despite the expenditure of millions of dollars annually by the federal and state governments, the problems of poverty, lack of economic opportunity, poor graduation rates, chemical dependency, serious health problems and unacceptable crime rates have not been solved. one of the original sources of the problem, we need to address the failures of Indian policy that have also created and supported these problems.
Then the federal government washed its hands of tribal governments, and except for sending money, left the Indian people saddled with unaccountable tribal governments. In most tribal constitutions there is no separation of powers. All power, legislative, executive and judicial, is concentrated in or controlled by the tribal council. James Madison, a founding father of the U. S. Constitution, described the accumulation of all of these powers in the same hands as “the very definition of tyranny”.
The Indian people are not protected by the Bill of Rights in dealing with tribal government, and have no access to the federal courts for redress of wrongs done to them by tribal government. Because tribal government all too often controls the tribal courts, directly or through the power of appropriations, there is no oversight and control of tribal councils. The result is rampant, continuous and ongoing problems with corruption, abuse, violence or discord. Most tribes do not give their members audited financial statements of tribal funds or casino funds, which may represent thousands of dollars per tribal member. It is literally impossible for tribal members to find out where all of the money is going.
The sad truth is that true democracy does not exist on most Indian reservations. Tribal elections are often not free and fair. True democracy also means that the powers of government are limited by such things as the rule of law, separation of powers, checks on the power of each branch of government, equality under the law, impartial courts, due process and the protection of basic liberties of speech, assembly, press and property. None of these exist on most Indian reservations. Instead, tribal chief executives and councils possess near dictatorial control over tribal members. Not only do they control the tribal court, police and flow of money, but they control which members get homes, jobs, healthcare services and even exercise control over children who are enrolled members. If they live on a reservation, Indian people who speak up run the risk of losing their homes, jobs, healthcare and other services, making internal government reform even more difficult.
The failure of tribal reservations is demonstrated by the fact that less than 20% of the Indian population live on reservations. At the same time, because the policy of the U. S. Government from about 1880 to 1934 was to open up reservations to private land ownership and settlement by non-Indians, nearly half of the people who reside on reservations are not Indians. Nevertheless, tribal governments not only deny their own members rights, but seek to assert the jurisdiction of tribal government over non-Indians. Widespread intermarriage between Indian and non-Indian people has further blurred the lines as to who is and is not an “Indian”.
Despite the protests raised by Commissioner Merriam’s reference to “apartheid,” no widespread public outcry greeted the thoughtful opinions of Justice Randall, writing separately in two Court of Appeals’ opinions in 1997, when he described the disastrous effect of our Indian policies as “red apartheid”. Justice Randall reviewed the treatment of the Indian people by the United States Government, beginning with the statement of Red Cloud that the only promise the federal government kept was “they promised to take our land and they took it.” Justice Randall argues that the claim that tribes are sovereign has never been the reality for 200 years, and to pretend otherwise is a cruel lie. Our actions as Americans spoke louder than our words. He concluded, however, that the solution is not to go down the “separate but equal” pretense of Plessy v. Ferguson for African-Americans, as the Supreme Court infamously held in 1896 until it reversed course in Brown v. Board of Education in 1954. The solution is to give the Indian people the full rights of citizenship, and the full protections of the United States Constitution. You cannot have economic reform on reservations until you have political reform. Justice Randall’s opinions can be found in Granite Valley Hotel Limited Partnership v. Jackpot Junction Bingo and Casino and Cohen v. Little Six, Inc., both decisions of the Minnesota Court of Appeals. Separate but equal never worked for African Americans, so why do we believe that it will work for Native Americans? Commissioner Merriam was correct when he suggested that any system that separates people under different rules and regulations based upon race is inherently suspect.
I am proud of my heritage as a member of the Red Lake Band, and share the desire of the Indian people to preserve their languages, their cultures, their customs and their traditions. But in a world of accelerating change globally, to believe that the Indian people can isolate themselves on small parcels of land on this earth and defy the winds of change is a prescription for economic failure and cultural elimination. Tribal governments naturally resist the efforts to open up accountability, create a system of free and fair elections, bring true democracy to the Indian people, and grant the Indian people the same rights as others enjoy under the Bill of Rights and the United States Constitution. The current system insures that tribal governments control the flow of billions of dollars of federal, state and casino dollars.
It is past time to have an open discussion, without charges of racism, of whether having different rules for two peoples living in the same area is a wise public policy. We need to have an open and free discussion as to whether or not the Indian people at long last deserve to be brought under the full protection of the United States Constitution, the Bill of Rights and the federal courts. Today, dozens of individuals who are fully qualified for membership in the Mdewakanton Dakota Community are denied that membership because of financial and political greed. They have no redress in the federal courts, nor within tribal government.
The sad truth is that today, tribal governments are the biggest oppressors of the Indian people. The critical issue is not the negative implications of the word apartheid. The issue is whether this system of reservations and tribal governments which treats the Indian people as second class citizens should be reformed.
‘We've Had Problems Since The Mayflower'
By KAREN FLORIN
Day Staff Writer
Published on 8/3/2003
*** Excerpts ***
The Narragansett Indians opened a smoke shop on their Charlestown, R.I., reservation last month, knowing the state considered it illegal for the tribe to sell tax-free cigarettes. Two weeks earlier, the Shinnecock Indian Nation broke ground on a casino in Southampton, Long Island, without federal, state or local approval. The Wampanoag Tribe of Gay Head, who built a shed for their shellfishing business on their reservation without obtaining local permits, is engaged in a legal battle in Martha's Vineyard.
It might look like the Summer of American Indian Resistance in the Northeast, with tribes and government officials clashing over everything from water rights and zoning ordinances to cigarettes and gambling. But Indian leaders say they are simply exercising their sovereign rights, not brazenly defying the law. They say such conflicts have occurred since Europeans arrived in the United States.
“For it to be an act of defiance we would be acknowledging the position the state has taken, that we have no rights,” said Randy R. Noka, first councilman for the federally recognized Narragansetts. He, his wife, Bella, and their son, Norman, were arrested along with five others when tribal members tried to stop state police from raiding the smoke shop on July 14. His daughter, Chali, was injured in the melee.
“We had a feeling we would be challenged by the state,” Councilman Hiawatha Brown said a day later. “We had no idea we would be storm-trooped.”
Outraged by the way their leaders and family members were treated, tribal members who witnessed the raid or gathered at the smoke shop in its aftermath evoked events that have scarred Narragansett people over the centuries. They recalled the Great Swamp Massacre of 1675, an attack on Narragansett women and children and elders, and harked back to the federal government's effort to detribalize them in 1880. They see the history of oppression extending to 1996 when the late U.S. Sen. John Chaffee attached a provision to an unrelated bill that requires the Narragansetts to get state and local approval to open a casino.
“Folks have to realize, it wasn't an isolated event, the troopers storming the reservation that Monday,” said Noka. “It's an ongoing history. It's the stories you heard or read when you grew up, stories your grandparents and great-grandparents told.”
Kurt Jordan, a lecturer in the American Indian program at Cornell University, said it is important to talk about things that happened 400 or 500 years ago.
“That's one of the things we think of as being a luxury, sitting on a beach reading about Thomas Jefferson,” he said. “But it's one of the things that's vitally important.”
The legal framework set during the earliest interactions between Indians and Europeans is still pervasive and still fundamental to the modern relations, Jordan said.
“It was originally constructed in a nation-to-nation way, a peer relationship from the very beginning done on a government-to-government basis,” he said. “Basically the natives assert today that nothing has changed and that is the basis of sovereignty.”
Still, the relationship between states and tribes remains a gray area in many ways, with contradictory court decisions and selective reading of precedent-setting cases, Jordan said. If native sovereignty is increased, states usually feel the brunt.
“There's no clear cut way to proceed,” he said.
“We've had problems since the Mayflower,” the chief told the governor.
In the aftermath of the raid, one man screamed he would be willing to die to protect the tribe's sovereignty. A woman brought up the hundreds of Sioux killed at Wounded Knee in 1890. There was talk of smallpox-infected blankets being distributed to Indians during the French & Indian War.
But over the next couple of days, Thomas and other tribal leaders were emphasizing that the tribe would wage its battle in the courts.
Cigarette taxes have long been a point of contention between tribes and states, and the U.S. Supreme Court has ruled on the issue three times. In general, Indian law experts say, Indians are supposed to tax cigarettes sold to non-Indians on their reservations unless they manufactured the tobacco products themselves. Some tribes enter into revenue-sharing agreements with states, just as they do for gambling, but states have a hard time collecting taxes from those tribes that have no agreements.
“We were just exercising our sovereignty,” Smith said. “We have a right to do that. We own the land. The government doesn't have a right to tell us what we can do on our land. We have been giving the government courtesy by responding to their temporary restraining orders. We haven't broken any of those restraining orders. Out of courtesy we're dong that, but we still have the right. “
The 1,500-member tribe is not federally recognized. They started the process in 1978 but only just completed their application to the Bureau of Indian Affairs. Smith said it is “almost an insult” that they are asked to prove their identity.
Individual tribal members sell tobacco at three shops on the reservation, enterprises that Smith said benefit the tribe only slightly. One shop pays a lease and the others donate to different organizations on the reservation. When the first shop opened in 1983, local police tried to shut it down, Smith said, but “they were stopped by tribe members, then state police.” Elsewhere in New York, the Seneca and Mohawk tribes have had tense and sometimes violent encounters with the state throughout the year. Individual members continue to sell tobacco, and the state government continues its efforts to collect taxes.
Ten years ago in Connecticut, the state tried to stop Golden Hill Paugussett War Chief Moonface Bear from selling cigarettes out of the Colchester reservation. Indians armed with AK-47s held off state police for months. Moonface Bear eventually surrendered and was arrested, but state police never entered the reservation, and the war chief died of leukemia before his trial.
During the same summer of 1993, Eastern Pequot member Mark R. Sebastian was arrested for trying to block a North Stonington road crew from fixing a road on the reservation because he feared the roadwork would damage significant archaeological sites. He ultimately pleaded guilty to creating a public disturbance and paid a fine. He appealed the jurisdiction issue to the state Supreme Court and lost. Today, both Connecticut tribes are trying to open casinos, a step that requires cooperation with, and from, local, state and federal officials. The outcome remains unclear.
Why Indians are Second Class Citizens: Congress’ Plenary Power, Tribal Sovereignty and Constitutional Rights
By Darrel Smith
[The author is a reservation resident. He is the Editor of CERA NEWS and Secretary/Treasurer of Citizens Equal Rights Foundation (CERF).]
** Excerpts **
The U. S. Government as Tyrant.
The Supreme Court has recognized this plenary power of Congress on numerous occasions. One recognition is in the Santa Clara Pueblo v. Martinez (1978) decision which states, “Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.”4 The Santa Clara decision refers back to an earlier Supreme Court decision called Lone Wolf v. Hitchcock (1903). In that decision the Supreme Court stated, “Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government….The power exists to abrogate the provisions of an Indian treaty…. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.”5
How the federal government finds authority for this permanent, absolute, congressional power over a group of American citizens in the Constitution is both sobering and frightening. For more discussion of the possible foundations of this congressional power over Indian affairs read the articles entitled “Where's the Government's Authority…” under “Legal Principles” in the “Legal Issues” section of our web site at www.citizensalliance.org.
Adding another Tyranny.
Unfortunately, Congress’ absolute power over Indian affairs is just one hurdle tribal members on reservations must overcome in an effort to obtain “the equal protection of the law” supposedly guaranteed to all citizens by the Fifth and Fourteenth Amendments to the U.S. Constitution.
Indian tribes possess the inherent authority to establish their own form of government, including tribal justice systems.
As a part of this “sovereignty” tribal governments possess a high degree of sovereign immunity “precluding suit against the sovereign (government) without the sovereign's consent.”11 Again the U.S. Code says, “Nothing in this chapter shall be construed to affect, modify, diminish, or otherwise impair the sovereign immunity from suit enjoyed by Indian tribes.”12
The Supreme Court has also supported the concept of tribal sovereignty and said in Santa Clara Pueblo v. Martinez, “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed as limitations on federal and state authority. Thus, in Talton v. Mayes, 163 U.S. 376 (1896), this Court held that the Fifth Amendment did not ‘operat[e] upon’ ‘the powers of local self-government enjoyed’ by the tribes. Id., at 384. In ensuing years the lower federal courts have extended the holding of Talton to other provisions of the Bill of Rights, as well as the Fourteenth Amendment.” The limitations on state constitutional authority is also specifically noted in Santa Clara Pueblo v. Martinez when the Court says, “States may not assume civil or criminal jurisdiction over ‘Indian country’ without [436 U.S. 49, 64] the prior consent of the tribe.”13
The Supreme Court in its Nevada v. Hicks (2001) case stated, “it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes.”14 The U. S. Court of Appeals (Ninth Circuit) has described this lack of constitutional protection very simply when they stated, “This holding is consistent with other judicial decisions finding the Constitution inapplicable to Indian tribes, Indian courts and Indians on the reservation.”15
Thus, tribal members on reservations live under two contradictory, tyrannical forms of government. Inexplicably, Congress has plenary (absolute) power over their affairs and tribal governments have independent, supreme, dominion, authority and rule over these American citizens as well. Meanwhile, tribal governments are protected from being sued for abuses of civil or constitutional rights by their sovereign immunity. Finally, this absolutist tribal authority is guaranteed and protected by the power of the federal government because of its so-called trust responsibility to tribal governments.
A Secret… “Voluntary Consent.”
The Supreme Court in Duro v. Reina, (1990), has stated that, “It is significant that the Bill of Rights does not apply to Indian tribal governments.” The Court contends that tribal governments get their “unconstrained” power over tribal members because tribal members voluntarily gave up their Bill of Rights protections, and their Fourteenth Amendment equal protections, when they consented to become tribal members. Specifically they said, “The retained sovereignty of the tribe is but a recognition of certain additional authority the tribes maintain over Indians who consent to be tribal members…. A tribe's additional authority comes from the consent of its members.”16
One of the historical and philosophical foundations for Indian policy is the belief that Indians, like children or incompetents, “are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”17 This historical foundation continues to affect modern Indian policy.
As tribal members become more aware of their diminished status, will they demand equal rights or will they be mollified by the perceived warm bosom of the reservation system? Will they sell their constitutional birthright for “a bowl of stew or ‘a handful of merchandise-mostly trinkets’” or will they demand the equal status they deserve as American citizens? Meanwhile, for the federal government to maintain that tribal members gave up their most precious citizenship rights without their knowledge, or any safeguards, is abhorrent.
Political power is not created out of a vacuum. It comes at the expense of other governments, or the people themselves. In this case, it comes primarily at the expense of the tribal members who live on reservations. Speaking of tribal sovereignty, Minnesota Appellate Judge R. A. (Jim) Randall has said, “‘[s]overeignty' is just one more indignity, one more outright lie, that we continue to foist on American citizens, the American Indian.”19
Let's Pretend We Gave Indians Civil Rights.
In response to repeated complaints from tribal members about the violations of their fundamental rights by tribal governments, Congress passed the Indian Civil Rights Act (ICRA) of 1968. Passage of this Act was an explicit, legal admission on the part of the federal government that tribal members on reservations are without the protections of the Fourteenth Amendment and the Bill of Rights.
Thus except for unjust imprisonment, a tribal member can only seek remedy from the same tribal government that he believes may have already violated his rights. Imagine how effective our federal and state constitutions and our other federal civil rights acts would be if citizens could only seek relief from the government entity that may have already violated our rights. This civil rights problem is worse on reservations because tribal governments are protected from suit by sovereign immunity and very few have separated powers and an independent judiciary.
Is There Anything Missing from This Picture?
Minnesota Appeals Court Judge R. A. (Jim) Randall has had a long term, special interest in Indian affairs and has spent considerable time reading, visiting reservations and talking to tribal members. He made the following comments about constitutional protections on reservations in the 1997 Granite Valley v. Jackpot Junction legal opinion:
“It is not known to all reading this opinion that the following list of state and federal constitutional guarantees and rights are not in place for Minnesota Indians domiciled on a reservation: There is no guarantee that the Minnesota Constitution, the United States Constitution and its precious Bill of Rights will control. There are no guarantees that the Civil Rights Act, federal or state legislation against age discrimination, gender discrimination, etc. will be honored. There are no guarantees of the Veteran’s Preference Act, no civil classification to protect tribal government employees, no guarantees of OSHA, no guarantees of the Americans with Disabilities Act (1990), no guarantees of the right to unionize, no right to Minnesota's teacher tenure laws, no right to the benefit of a federal and state “whistleblower” statutes, no guarantees against blatant nepotism, no guarantees of a fair and orderly process concerning access to reservation housing, and no freedom of the press and no freedom of speech. In other words, all the basic human rights we take for granted, that allow us to live in dignity with our neighbors, are not guaranteed on Indian reservations under the present version of ‘sovereignty.’”22
Judge Randall calls tribal sovereignty “a pancake makeup coverup of Plessy which allowed ‘separate but equal’ treatment. See Plessy, 163 U.S. at 551, 16 S.Ct. at 1143 (holding that ‘equal but separate accommodations for the white and colored races’ for railroad passengers was constitutional).”23 The Plessy decision and the “separate but equal” concept have been wholly repudiated since the Brown v. Board of Education decisions of the early 1950's. Current federal Indian policy is even worse than the Plessy concepts, however, because it doesn't even make a pretense of equality.
Is This Citizenship?
William J. Lawrence, J.D. is publisher of the Native American Press/Ojibwe News. He has spent over thirty-two years working in Indian affairs, including as an Agency Superintendent for the federal Bureau of Indian Affairs, as an Executive Director of a tribe and director of adult Indian education for the Minnesota Department of Education. He gave the following testimony to the U. S. Senate Committee on Indian Affairs in Seattle, Washington on April 7, 1998:
“The greatest injustice the federal government has imposed on Indian people during the 20th century is to make us citizens, but deny us most of the basic rights of citizenship….
“Democracy is not simply the existence of free and fair elections, which I would argue often do not exist in tribal elections. Democracy is also defined by limiting the power of the government by such things as the rule of law, separation of powers, checks on the power of each branch of government, equality under the law, impartial courts, due process, and protection of the basic liberties of speech, assembly, press, and property. These do not exist on Indian reservations….”
“James Madison, a founding father and signer of the U.S. Constitution, said that government with no separation of powers and no checks and balances is the very definition of tyranny. That is what we have on America's Indian reservations….”
“Let it be said right now that sovereign immunity has nothing to do with Indian culture or tradition. It is a concept that developed in the Roman empire and was used by European monarchs to protect them from challenge or criticism. Tribal sovereign immunity has essentially told a generation of tribal leaders that once they are in office they are above the law and can do whatever they please. The only culture that tribal sovereign immunity is protecting is a culture of corruption, denial of rights, and unaccountability.”
“In closing, I would like to quote a great American, the late Dr. Martin Luther King. He said, ‘Injustice anywhere is a threat to justice everywhere.”24
These facts raise some very fundamental questions. Is it the duty of citizens to serve their governments, or is it the function of government to serve the people? Does primary sovereignty rest with governments or the people? Where does the federal government get its authority to classify citizens into groups and then deny certain groups of citizens the equal protection of the law? Is this authority superior to the Fifth and Fourteenth Amendments to the U.S. Constitution?
This national discussion about equality for tribal members on reservations is long overdue. Tribal members need to join civil rights groups and demand full and equal constitutional protections. All American citizens and the federal government should be ashamed of, and embarrassed by, the patronizing, destructive, racist nature of federal Indian policy.
1 New American Standard Bible; Thomas Nelson Publishers; Genesis 25:29-34.
2 Britannica Encyclopedia; 15th Ed. 1986; Minuit, Peter; Vol. 8, p. 174.
3 United States Code; Title 25, Chapter 21, Section 1901.
4 Santa Clara Pueblo v. Martinez; 436 U.S. 49 (1978).
5 Lone Wolf v. Hitchcock; 187 U.S. 553 (1903).
6 U.S. Constitution; Amendments IX and X.
7 United State Constitution; Article I; Section 8; Clause 3.
8 Saenz v. Roe; 000 U.S. 98-97 (1999) see also Adarand Constuctors, Inc. v. Pena 000 U.S. U10252 (1995).
9 United States Code; Title 25, Chapter 38, Section 3601.
10 Black's Law Dictionary, 7th Ed; Bryan A. Garner, Editor; West Group, St Paul, MN; 1999.
11 Dictionary of Legal Terms; Steven H. Gifis; Barrons, New York, NY.
12 United States Code; Title 25, Chapter 39, Subchapter III, Section 3746, Tribal immunity.
13 Santa Clara Pueblo v. Martinez; 436 U.S. 49 (1978).
14 Nevada etal. v. Hicks etal. No. 991994. Argued March 21, 2001 Decided June 25, 2001.
15 Tom v. Sutton; 533 F.2d 1101, 1102-03 (9th Cir.1976).
16 Duro v. Reina, 495 U. S. 676 (1990).
17 Cherokee Nation v. State of Ga.; 30 U.S. 1 (1831).
18 Santa Clara Pueblo v. Martinez; 436 U.S. 49 (1978).
19 Cohen v. Little Six Inc., d/b/a Mystic Lake Casino; No. C6-95-928; Court of Appeals of Minnesota; Feb. 13, 1996.
20 Santa Clara Pueblo v. Martinez; 436 U.S. 49 (1978).
22 Granite Valley v. Jackpot Junction. No. C8-96-1024. Court of Appeals of Minnesota. Feb. 18, 1997.
23 Cohen v. Little Six Inc., d/b/a Mystic Lake Casino; No. C6-95-928; Court of Appeals of Minnesota; Feb. 13, 1996.
24 Oral testimony of William J. Lawrence, J.D; to the U.S. Senate Committee on Indian Affairs in Seattle, Washington on April 7, 1998.
25 The Great Chiefs Fought for Independence by Lisa Morris; CERA NEWS; March 2002; Vol. 7, # 2 .
26 Adarand Constuctors, Inc. v. Pena 000 U.S. U10252 (1995).
27 Saenz v. Roe; 000 U.S. 98-97 (1999).
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