The Constitution, Nobility and Different Classes of Citizenship

By Darrel Smith 

Modern interpretations of federal Indian policy violate several well-recognized constitutional principles. The most fundamental of these is “the equal protection of the laws” guaranteed to citizens by the Fourteenth and Fifth Amendments. The creation of “sovereign” (independent and supreme) governments and reservations within state boundaries violates the provision that “no new State shall be formed or erected within the Jurisdiction of any other State…without the Consent of the Legislatures of the States concerned as well as the Congress.”1 Tribal governments within our system also violate the restraining legal balance between state and federal governments (federalism) as expressed, for example, in the Tenth Amendment. As tribal governments gain territorial authority,[i] they violate other vital constitutional protections for hundreds-of-thousands[ii] of non-members such as the guarantees of “a Republican Form of government,”[iii] the right to vote[iv] and the right to a state jury of our peers.[v]

            Federal Indian policy also violates lesser-understood provisions of the Constitution. For example, in a hearing of the Senate Committee on Indian Affairs on Feb. 27, 2002, Senator Campbell said, “It seems to me that they [tribal members] should have two sets of rights: that of being Native Americans as given in the treaties and that they inherit being an American, like any other American.” In contrast, the Constitution says, “No Title of Nobility shall be granted by the United States…. No State shall…grant any Title of Nobility.”[vi] The Constitution’s strict prohibition against granting any “Title of Nobility” was the original Constitution’s “equal protection of the law” guarantee. It forbade both the federal government and the states from creating different classes of citizens. A dictionary defines “nobility” as “1. A class in society composed of persons having hereditary title, rank and privileges; the aristocracy.”[vii]

Tribal governments and their memberships are based on race and heredity. Tribal members have special identification cards literally entitling them to “cradle to grave” privileges. Whole agencies of the federal government (BIA and Indian Health Service for example) are dedicated to these special benefits and the entire government is dedicated to a special “trust” and “government to government” relationship with them. They have a unique “sovereign” legal status and have special legal immunity and protection from being sued. As the only governmental unit that can be involved in political campaigns, they can convert tax dollars to campaign contributions without the same restrictions other Americans face.[viii] Their special legal status allows them to be government wards, sovereigns and minority citizens at the same time. That there is no objective evidence that these constitutional violations generally benefit Indian people is especially tragic. The overwhelming evidence is that Indian people are, in fact, harmed by these policies.[ix]

The Supreme Court has said, “Congress' Article I powers to legislate are limited not only by the scope of the Framers' affirmative delegation, but also by the principle that the powers may not be exercised in a way that violates other specific provisions of the Constitution.”[x] Whatever questionable “affirmative delegation” Congress claims to have for federal Indian policy,[xi] this policy certainly is being “exercised in a way that violates other specific provisions of the Constitution.” It’s time for us to return to the fundamental constitutional principles that have allowed our diverse population to live in relative harmony, tranquility and prosperity for over two hundred years.