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.

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