The conclusion of Native American Activist Paul Johnson's treatise on the violations of civil rights in Indian Country. Please check out the previous two posts:Part One and
Part TWO
. Thank you Paul for your excellent work on this critical issue infecting Indian Country
The selective nature of disenrollments illustrates the
bias and discrimination that motivates these heinous actions. Tribes select
entire extended families and target them for elimination. They place unfair
standards only on those they wish to eliminate, with full knowledge that there
are other tribal members who could not meet the same standard. Disenrollees are
treated differently under the law than other tribal members, and this is what
is meant by the violation of the right to equal protection under the law. Equal
protection means not only that all people shall be treated equally in the
enforcement of the law, but also that all people shall have equal access to the
law. This right was intended specifically to prevent unfair or discriminatory
actions by those enforcing the laws from preventing individuals from obtaining
recourse or remedy.
Read the citation from the Fourteenth Amendment
carefully. It doesn't say citizen; it says person. In Yick Wo v. Hopkins (1886) the Supreme
Court ruled that:
“These provisions are universal in their application to
all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality, and the equal protection of
the laws is a pledge of the protection of equal laws. “
It doesn't apply to Indians though. Why does the Court
deny the civil rights of Indians? Because Congress denies the Civil Rights of
Indians. Why does Congress discriminate against Indians? The Supreme Court says
that protecting the civil rights of Indians means interfering with the
sovereignty of Tribes, but Tribes are domestic dependent sovereigns with lands
held in trust by the Federal Government. Congress has plenary powers over
Tribes. (OP: plenary power is a power that has been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power)
The politics that are being played by Congress and Tribes should not
result in the violation of the civil rights of tribal members.
This attitude toward Indians is not new. America has a
long and bloody history of mistreatment of native peoples. Nothing has changed
except that now Tribes have gaming. Along with the gaming came wholesale
corruption. The Federal Government allows the corruption as long as it is just
Indians hurting other Indians, but there are other ramifications that have not
been fully understood. The BIA now says disenrollees are not eligible for
federal services or programs because they are not members of a Federally
Recognized Tribe, and their internal policy states that disenrollees are not
entitled to per-capita distribution.
The BIA does not inform disenrollees that they are taking
these actions against them. They say that tribal law is controlling law for
tribal members, but disenrollees are not tribal members. So without committing
a crime or any transgression at all against the Federal Government, the BIA
denies services, programs, and revenue sharing to those who are otherwise
entitled and eligible. They do this without providing due process, and without
equal protection of the law. There is no legal definition of disenrollee, and
no federal regulation that tells the BIA that they have to stop seeing an
Indian as an Indian just because a Tribe decided to harm a selective portion of
their members.
Disenrollees can have their tribal membership terminated.
It happens all the time these days; however, Tribes do not tell the Federal
Government what to do. Why then is the BIA acting against disenrollees on the
instruction of Tribes? It appears that the BIA and Tribes are working together
to inflict harm and injury on innocent persons, and it is time for disenrollees
to recognize that they are U.S.
Citizens. In 1924 Congress granted all American Indians U.S. Citizenship, and
if their tribal membership is terminated, for whatever reason, Indians revert
to U.S.
Citizens, and they are entitled to all the rights and protections of the U.S.
Constitution and the Bill of Rights. In fact Indians are U.S. Citizens
even when they are also Tribal Citizens, and can always assert their rights.
This fact has been lost in the disputes over membership
and the BIA and Courts purposely avoid addressing civil rights violations. So
far the BIA and the Courts have been able to narrow the scope of their
decisions to frame disenrollment as internal tribal matters in which they have
no jurisdiction and cannot interfere. They are able to do this because the
disenrollees file their appeals and complaints against the Tribes. The Tribes
are immune to lawsuits, and the BIA has no jurisdiction, and the cases are
dismissed, or the appeals are lost.
The BIA should not disregard these rights and
protections, and the BIA should not apply tribal law to those who are no longer
tribal citizens. The problem is that disenrollees are so intent on regaining
tribal membership that they forget that they are U.S.
Citizens and allow the BIA to treat them as neither U.S. Citizens nor Tribal Citizens.
To make matters worse the BIA gives deference to the Tribal Leaders who are
hurting their own people no matter how corrupt the leaders are. The BIA says it
is reasonable for them to give deference to Tribes even though this deference
enables Tribes to violate their own Constitutions, Laws, Customs and
Traditions.
The BIA addresses only matters involving tribal law and
membership disputes and ignores any other arguments in appeals. The Courts rule
that Tribes are sovereign and immune to lawsuits. Congress specifically left
out provisions for enforcement of the ICRA. Disenrollees are painted into a
corner, with no recourse except to claim their Rights. How else are they going
to make any headway against a power structure that is completely
discriminatory?
The BIA will never interfere and help disenrollees get
reinstated. They have no rules, regulations, policies, procedures, court
decisions or empowerment from Congress to reinstate disenrollees. Even if a
Tribe's governing document gives the BIA this power, they will still try to
weasel out of doing something for disenrollees. Instead of seeking reinstatement,
disenrollees should tell the BIA that they are being denied due process and
equal protection under the law. They should demand a hearing, and an
opportunity to present evidence on their behalf with an independent judicial
review.
This strategy will have either of two outcomes. It is
possible that the BIA will rule that those disenrollees who assert their civil
rights are still eligible for federal services and programs despite being disenrolled.
Those disenrollees who obtain this ruling from the BIA will have proof that
they are Indians, and that the Tribe was wrong in disenrolling them. This is a
far better outcome than a decision not to interfere, and could lead to further
action.
If the BIA rules that the agency cannot provide
disenrollees a hearing or equal protection under the law, then the table is set
for a suit against the BIA. The Court will then have an opportunity to hear the
arguments and decide for all disenrollees whether or not they have civil
rights. In might also mean that disenrollees can file complaints with the Department
of Justice claiming civil rights violation by the Tribe against a U.S. Citizen
with the support of a judicial decision that says that Tribes do not have the
right to determine your eligibility for federal services and programs.
There is even a chance that the Court might rule that the
BIA must change the internal policy that disenrollees are not entitled to
per-capita revenue sharing. This is where the whole strategy has been pointing.
Gaming Tribes have Revenue Allocation Plans with the BIA that state that Tribes
must share revenue with Tribal members. There are federal court decisions
(Short et al.v. United
States, 1973) that state all Indians of a reservation
are entitled to share revenue from reservation lands regardless of their tribal
membership status. By asserting their claim to civil rights protections
disenrollees might be able to remove the reason why the Tribe disenrolled in
the first place. If Tribes cannot withhold per-capita from disenrollees they
might not be so hasty to disenroll members. With the requirement for Tribal
membership out of the picture, then the Tribe will have to share with
disenrollees too or be in violation of their RAPs.
Can the BIA force Tribes to share revenue with
disenrollees? That question won't be answered until some brave disenrollees
assert their claim to civil rights protections. There is also the NIGC, and
gaming Tribes must file Tribal Gaming Ordinances with the NIGC that state they
will share revenue with tribal members. Along with the Tribal Gaming Ordinances
comes a waiver of sovereign immunity due to the provisions of the IGRA. Gaming
Tribes must sign such a waiver so that the NIGC can enforce the Indian Gaming
Regulatory Act.
The alphabet soup gets a little crowded here, and before
too much complexity drowns these actions in a slew of hearings and delays the
best weapon that disenrollees have is to stand fast to their civil rights and
see where the strategy leads. Most Tribes will probably reconsider their
disenrollment decisions if it becomes apparent that the federal government will
be forced to either investigate or act. No one knows if this strategy will work
though. It hasn't been tried before.
This is an opportunity to fight
disenrollment actions and force the BIA, the DOI, the DOJ and perhaps even
Congress to develop a policy that addresses the civil rights of Indians in a
meaningful way. We won't know until we give this strategy a ride and test it out.
