Sunday, April 26, 2015

Part II: Are Native Americans Entitled to Civil Rights Protections

In the first post on the violations of civil and human rights ( Are Native Americans Entitled to Civil....) written by guest blogger Paul Johnson, he concluded by asking this question:

Was it an oversight of Congress to omit the power to enforce these rights for tribal citizens?  The obvious answer is NO!

If Congress had wanted teeth in the ICRA they would have included provision for enforcement, or they would have amended the ICRA after over forty-five years. The Santa Clara Pueblo v. Martinez (1978) decision ruled that:
As originally introduced, the Act (ICRA) would have required the Attorney General to 'receive and investigate' complaints relating to deprivations of an Indian’s statutory or constitutional rights, and to bring 'such criminal or other action as he deems appropriate to vindicate and secure such right to such Indian.'...Congress retains authority expressly to authorize civil actions for injunctive or other the event that the tribes themselves prove deficient in applying and enforcing it’s (the ICRA) substantive provisions.”
So the Supreme Court says it is Congress' job to provide remedy if Tribes don't enforce the ICRA and protect the rights of their citizens. Obviously Congress is not motivated to act on behalf of harmed tribal citizens, so we can blame Congress for enabling Tribes to terminate members, but Congress must bear only part of the responsibility. The Supreme Court also says that:
". . . To abrogate tribal decisions, particularly in the delicate area of membership, for whatever `good' reasons, is to destroy cultural identity under the guise of saving it." 402 F. Supp., at 18-19.
So the Santa Clara Pueblos v. Martinez decision limits the power of the Federal Government to interfere with tribal decisions. And even though the ICRA guarantees Indian Civil Rights, Santa Clara Pueblos v. Martinez goes on to say that the ICRA:
...provides that States may not assume civil or criminal jurisdiction over 'Indian country' without the prior consent of the tribe, thereby abrogating prior law to the contrary.”
So the government can't enforce civil rights protections on reservations unless Tribes waive their sovereign immunity. The NNABA resolution declares that human rights and fundamental freedoms of all shall be respected, but who is going to tell Tribes this? Not only has the Supreme Court ruled that the Federal Government can't interfere with tribal decisions on membership, but other court decisions have expanded on the Santa Clara Pueblos v. Martinez decision and consistently ruled that sovereign immunity protects Tribes against lawsuits, and this has enabled Tribes to violate the civil rights of their members.

It is clear that the ICRA was never meant to provide for the protection of the rights of Indians. Read the Supreme Court decision yourself if you want to understand the position of the Court. The whole idea was that Tribes would provide this protection for their own people as part of their commitment to self-determination. Congress assumed that Tribes would naturally promote the interests, welfare, and status of their citizens far better than the Federal Government. 

Who could have foreseen that Tribes would seek to intentionally harm their own members, their own family? That is NOT the Indian Way.

The NNABA resolution is forceful in its affirmation that the right of tribal citizenship is absolute and inherent, and the U.S. Views citizenship as sacrosanct. However, Tribes have taken destructive action against innocent individuals who have committed no wrong or harmed the Tribe in any manner whatsoever, stripped them of their citizenship, and justified these actions with reasons that are simply false and illegitimate. (OP: Changing blood quantum (Pala); correcting "mistakes" in membership rolls i.e. Chukchansi, Grand Ronde, Nooksack or politically motivated i.e. Redding Rancheria, Jamul, United Auburn) 
We will continue in PART III, please, share on Facebook and Twitter and make sure you address your tweets to your state's Senators and to @SenJohnBarrasso  and @indiancommittee and @NatResources and @civilrights.


White Buffalo said...

This may be an oversimplification, but congress has proven that its interest lie with those of influence and money. It is clear that “ICRA was never meant to provide for the protection of the rights of Indians”. The epidemic of disenrollment is evidence that assimilation of the culture is still on the agenda. It is simple give the select few a taste of riches and watch the system implode. Human nature is a sure guarantee that this path was intended from the onset of the Indian policy from 1968 forward. Now is it hopeless? Not at all for there are people who will never buy-in to the modern Indian way. It is time to record the wisdom of the elders who remember the stories. These and our stories are what we have to offer our descendants who will come after us. I do not need that casino. I do need my family.

In the spirit of Geronimo said...

Correction: Congress CAN waive Tribes Sovereignty. Remember that Congress is Congress.

Anonymous said...

Correct. Confess is congress. Furthermore, the BIA mandates that only Congress can revoke a tribes federal recognition.

Anonymous said...

I meant 'congress is congress'.

Reinstatement_Restitution said...

Congress has plenary power over Tribes, so they can pretty much do what they want to do, but some things would be very hard to do. For instance, any kind of legislation that would negatively affect the status of lands held in trust would be hard to get passed. From our own experience getting Congress to do anything at all is very difficult.

Right now the BIA is in the process of trying to update the procedure for Federal Recognition. The process is ridiculously long, and very few tribes that have petitioned get recognized. The AS-IA wants to relax the requirements. Tribes that want to be recognized are holding their breath. The House Subcommittee on Indian Affairs has to wade through a bunch of interference from those that don't want more tribes.

Can you blame them? Look at the path of destruction of the Tribes that disenroll. Who needs more of that?

The point is that changing the way Congress treats Tribes does not fix the problems at all. The change that is needed is to protect the civil rights of Tribal Members. Tribes have all the protections they need. That is how they get away with committing crimes against their own members.

Later on we can talk about some of the ways the situation can be improved. I have some ideas that might be feasible. In the meantime I am hoping that everyone will think carefully about their civil rights and whether or not they want to assert them.

For myself I believe that even more important than the protections of civil rights is the development of policy so that the BIA, the Courts, and the DOJ can offer some recourse to those that have been harmed by corrupt tribal leaders.

Anonymous said...

The only ones who can fix their commuities are members of the commuiites themselves-remember electing a govt based on political revenge and greed for maternal wealth is not a good idea