Do Indian Reservations Equal Apartheid?

By William J. Lawrence

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. You can contact and subscribe to this weekly newspaper by going to the links section on the PERM web site at www.perm.org. Or you can go directly to the Ojibwe News web site at www.press-on.net.

Tribal governments are quick to blame the problem on racism. While that may be Recently Minnesota’s DNR Commissioner Gene Merriam set off a firestorm of protests from tribal governments when he stated that “any system of apartheid based on race is inherently misdirected.” Tribal governments accused Merriam of comparing the legal exercise of treaty rights with one of history’s most brutal and racist systems of government, and called for his resignation. The Governor and the Commissioner quickly issued apologies. But this shouldn’t be the end of the story.

Commissioner Merriam raised an issue that we need to discuss fairly and openly as a society. There is a serious question whether tribal governments were truly offended by the use of the term “apartheid”, or whether they wanted to end any discussion of this issue by elected officials. Because the term “apartheid” is associated with the racist creation of tribal homelands in South Africa, the use of that term allowed tribal governments to attack Merriam’s statement without dealing with the substantive issues underlying his position. 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.
Let’s begin with the basic facts that tribal governments do not want to discuss. Tribal governments were created by constitutions imposed upon various Indian bands and tribes by the Bureau of Indian Affairs. 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.

The sad fact is that without reform we will still be discussing the “Indian problem” fifty and one hundred years from now. We need to take the time now to discuss a solution that will work in the best interests of the Indian people, whether or not that is in the best interests of current tribal governments. Tribal governments chastised Commissioner Merriam for allegedly comparing the situation of the Indian reservations “with one of history’s most brutal and racist systems of government.” The sad reality is that the Indian people were also subject to one of history’s most brutal and racist systems of government, and as part of that system were pushed onto reservations through federal Indian policy.

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.