Sovereignty and Civil Rights
By Julie Shortridge
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.
The federal government has what's called "plenary" power over land that is in trust status, which means they can literally do anything they want with it, and the people living on that land have no direct control or constitutional protections. Indians and non-Indians who live on reservations actually have no control over their lands, and people living near reservations are at risk too, because the federal government is expanding reservation land holdings at an amazing rate.
Tribal members are U.S. citizens, and as such, are eligible to serve in state legislatures, run for Congress as representative of a state, be appointed to state and federal constitutional offices, hold judgeships at all levels, including the U.S. Supreme Court, and run for president of the United States. These rights and privileges are not extended to foreign nationals of sovereign nations. They are extended to Indians because they are, in fact, U.S. citizens, and have been since Congress passed the Indian Citizenship Act in 1924. Many non-reservation Indians were U.S. citizens in the 1800's as well.
Off the reservation, Indians are free and equal citizens. Ironically and tragically, only on reservation soil do Indians lose their civil and constitutional rights.
The policies of tribal sovereignty and tribal sovereign immunity have hurt tribal members, impaired businesses trying to contract with tribal governments, stifled economic development on reservations, and denied basic rights to Indian and non-Indian patrons and employees of tribally-owned operations.
Our state courts, federal courts, state attorney general, governor and members of Congress do little to defend the rights of Indian and non-Indian people who are harmed by this federal policy.
Unfortunately, many judges, state officials and citizens carelessly assume that tribal sovereignty and tribal sovereign immunity are somehow righting past wrongs done to Indian people. Without careful analysis, many people assume that the "right" side of the issue, the "pro-Indian" side of the issue, is to support a policy of sovereignty and separate laws and governments for Indian tribes. But some officials are beginning to raise crucial questions about the policy of tribal sovereignty. A Minnesota Court of Appeals judge is one of the leaders of this new trend.
Judge Randall Challenges the "myth of tribal sovereignty"
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 continues:
[W]e have the power, the right, and the precedent to allow Indian economic enterprises such as gambling casinos and other businesses to operate within the framework of existing state and federal law. Do we have the will? ...[T]his state, this country, has the power and the legal right to protect any and all parts of Indian identity, culture, tribal assets, self-determination, religion/spirituality that needs to be protected, and yet do it all within the framework of treating American Indians like we treat ourselves, as normal citizens of this state, of this country. The real issue is, do we have the will? ...We should have learned by now that this duality in America is so intrinsically evil, so intrinsically wrong, so intrinsically doomed for failure, that we must grit our teeth and work through it. ...For some reason, we continue to insist that American Indians can be the last holdout, a race that is not entitled to be brought in to the fold, can be left to shift for themselves as long as, from time to time, we pat them on the head like little children and call them sovereign. 'Sovereignty' is just one more indignity, one more outright lie, that we continue to foist on American citizens, the American Indian.
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.
Free the Indians
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.