A goal so constitutionally indefensible that Senator Inouye now claims it’s not true

Editor’s note: The following letter was forwarded to PERM by Citizens Equal Rights Alliance (CERA).

On February 24, 2003, Senator Daniel Inouye (D.Hawaii) stated that he would introduce a bill on Homeland Security with the goal of overturning recent Supreme Court rulings by recognizing that tribes have primary law enforcement duties on their lands. Sen. Inouye stated that the bill would “recognize [tribal] powers and responsibilities as sovereign governments” and strengthen the position of tribal governments and their status. “Least of all, you should be as sovereign as any state in the union.”

Sen. Ben Nighthorse Campbell (R. Colo.) stated that this legislation was part of a larger tribal sovereignty initiative to overturn Nevada v. Hicks and Atkinson v. Shirley, among other Supreme Court decisions. The Homeland Security Amendment in Senate Bill 578 was the first step in the so-called “Hicks Fix” that would give tribal governments civil, criminal and taxing authority over U. S. citizens who were not members of the tribe.

What a difference six months makes. On July 30, 2003, the hearings on Senate Bill 578 commenced, and Sen. Inouye presented a statement disclaiming any intent to strip U. S. citizens of their constitutional protections. Instead, Sen. Inouye claimed that Senate Bill 578 was really very narrow, only applying if a person were to engage in an act of terrorism. This only allowed a tribal police officer to hold the individual until they could be turned over to a federal authority, for violating federal law and subject to prosecution in federal court – not tribal court.

Really? First of all, if that was the only goal of Senate Bill 578, let me suggest that it can be replaced by one sentence: “Tribal law enforcement can detain individuals suspected of participating in terrorist acts in violation of federal law who shall be turned over to state or federal authorities at the earliest possible opportunity.” That of course is not the goal of Senate Bill 578, as Sen. Inouye made clear in his February statements, supported by Sen. Campbell. Instead, Senate Bill 578 is the opening salvo in the “Hicks Fix”.

Sen. Inouye’s July statement even contradicts itself. While the July statement claims that if a person was to engage in an act of terrorism, they would violate federal law and would be subject to prosecution in federal court not tribal court, the statement also describes the intent of Senate Bill 578 for Homeland Security purposes as follows: “Congress affirms and declares that the inherent sovereign authority of an Indian tribal government includes the authority to enforce and adjudicate violations of applicable criminal, civil, and regulatory laws committed by any person on land under the jurisdiction of the Indian tribal government.” Why is the language “adjudicate” in that sentence if it only applies to federal terrorism law to be tried in federal court? Why is the term “civil and regulatory laws” included if it is only federal criminal law?

The fact of the matter is that this bill is a broad effort to state a “Congressional intent” that is designed to overturn numerous Supreme Court decisions including Nevada v. Hicks, Atkinson v. Shirley, United States v. Montana, Strate v. A-1 Contractors, Inc., and Oliphant v. Suquamish Indian Tribe. This bill is an effort to begin the process of subjecting the 400,000 people who live within present and former reservations to tribal criminal, civil and taxing jurisdiction, even on land that those individuals own, by a government in which the individuals cannot participate. The result of the tribal sovereignty initiative (“Hick’s Fix”) will be a broad, sweeping usurpation of the constitutional rights of these 400,000 United States citizens, and potentially the millions more who travel through Indian reservations or former reservation lands.

There is a misunderstanding that Indian reservations are unique, homogeneous enclaves of members of a single Indian tribe. In fact, because of federal policies that lasted for fifty years from 1880 to 1930, millions of acres of land were transferred to private land ownership by hundreds of thousands of United States citizens. The population of Indian reservations today is generally about 50/50 between Indians and non-Indians. In many states the majority of citizens living on present or former reservation lands are not Indian and not members of that tribe. Because Senate Bill 578 would allow tribal government to be constituted anyway it wants, tribal government need not be democratic, there need not be an independent judiciary, and the mandates of the Bill of Rights would not apply.

It is therefore not surprising that Sen. Inouye is attempting to claim that those opposing Senate Bill 578 are misconstruing Senate Bill 578. Even Sen. Inouye can no longer support the true purpose of this bill, as he and Sen. Campbell did before the National Congress of American Indians in February. No one is calling tribal governments or the Indian people terrorists. That is outrageous. What thoughtful opponents of Senate Bill 578 are stating, however, is that this is the first step in the effort to elevate tribal governments to a status of sovereignty equal to that of states, and to subject individuals who are not members of that government to the civil, criminal and taxing authorities of tribal government, without the protections of the United States Constitution.

Fundamentally, United States citizens cannot be subject to jurisdiction by a government in which they cannot participate by voting and holding elective office. This concept is so fundamental it underlies the Declaration of Independence, as well as the United States Constitution and the Constitutions of every state. Despite the platitudes regarding the goal of recognizing “inherent tribal sovereignty” the reality is that this bill would be used to overturn numerous Supreme Court decisions and could strip United States citizens of the protection of the U. S. Constitution.

Rather than deny both the language and the goals of Senate Bill 578, since Sen. Inouye can no longer publicly support its true goal, he should do the honorable thing and withdraw support for Senate Bill 578. This bill means exactly what Senators Inouye and Campbell said it meant in February, 2003. Truth, unfortunately, appears to be a victim in the war on terrorism in Senate Bill 578.

If Sen. Inouye believes that he can defend this bill, he should invite the critics of the legislation to testify before the Senate, in an open public hearing, so that the whole truth behind Senate Bill 578 and its goals can be laid before the United States Senate and the public. I will await Sen. Inouye’s invitation to testify, and we both can test the accuracy of our analysis.

Randy V. Thompson

Nolan, MacGregor, Thompson & Leighton
710 Lawson Commons
380 St. Peter Street
St. Paul, MN 55102