By
Bill Lawrence
Publisher/Editor, The Native American Press/Ojibwe News
Reprint of The Native American Press/Ojibwe News, August 8th
Last week PRESS/ON published extensive testimony by Thomas Heffelfinger, US attorney for the District of Minnesota. He testified on Senate Bill 578 before the Indian Affairs Committee. Heffelfinger is Chairman of the US Attorney General’s Advisory Sub-Committee on Native American Issues (NAIS). While recognizing the need to address the risks to Homeland Security that the remoteness of reservation lands might pose as well as the potential for terrorist attacks that essential infrastructure elements, (dams, power plants or gas pipelines) might attract, NAIS has strong reservations about Section 13 of S.578, sponsored by Senators Nighthorse Campbell and Inouye, Chair and Vice-chair respectively of the Senate Indian Affairs Committee.
The specific concern about the bill’s Section 13 is that it is a legislative overturn of the U.S. Supreme Court’s decision in Oliphant v. Suquamish Tribe and could have far reaching results.
In that decision the Supreme Court held that tribal courts could not exercise criminal jurisdiction over non-Indians. The decision limited authority by tribal law enforcement over non-Indians who are apprehended for crimes committed in Indian Country. Section 13 of S.578 seeks to reverse this decision. The bill is concurrently introduced in the House of Representatives as H. R. 2242.
This is bad news for the tremendous number of non-Indians who live on or near reservations. It is also bad news for tribal members who already are living under a system where their civil rights are in constant jeopardy. Bad news because, if it is passed, it will be an important victory for Native American groups with a vested interest in preserving the status quo, the National Congress of American Indians (NCAI) for one.
The National Congress of American Indians supports the bill as part of their agenda “to mount an organized effort to halt and reverse the Supreme Court’s erosion of tribal sovereignty.” (Sovereignty Protection Initiative-NCAI web site.) According to the editor of CERA News (Citizens Equal Rights Alliance), Darrel Smith, who is also a reservation resident, “These bills are an expression of their agenda and have the impressive political support of the national tribal establishment with their casino-enriched campaign and lobbying millions.”
NCAI supports the bill; CERA and NAIS oppose the bill. What is at issue?
The opposition believes that overturning the Supreme Court decision will have major, deleterious effects on non-Indians living on or near Indian reservations. And the numbers of these individuals is substantial as is the impact of extending authority to tribal jurisdictions. According to CERA only 479,390 Indians live on reservations with 440,000 non-Indians also living on these reservations. The 2000 census indicates there are 3.3 million non-Indians living in areas that are classified as “Indian Country.” The action of overturning the Oliphant decision could result in giving “dominant tribal groups the power to impose whatever form of government, constitution or tribal judicial system they wish over hundreds of thousands of these non-Indians who dwell in ‘Indian Country.’” (CERA testimony.)
It could further curtail the civil rights of tribal members who live on reservations by broadening the power of those who hold positions of leadership. Tribal members’ civil rights are already a weakened commodity on reservations. The passage of S.578 could make this situation considerably worse.
The U.S. Attorneys, who are the chief federal law enforcement officers in their respective states and who make up the Native American Issues Subcommittee (NAIS), evidently agree with the above. Heffelfinger’s testimony states that the due process system is at issue, “including separation of powers, provision of indigent defense counsel, jury pools and appellate and habeas corpus relief.” (For details see PRESS, 8/1/2002, p6) The issues of tribal court competency, conflict-of-interest and access to documents and records are also of concern.
Furthermore, there are other options available that can “allow tribal law enforcement to be full partners in providing for a secure homeland while avoiding some of the adverse impact of a significant expansion of tribal jurisdiction.” [Emphasis mine.] These options include expanded use of ‘cross-commissions’ [authority from state, local or federal entities to arrest non-Indian criminal suspects] and of tribal law enforcement’s authority to detain individuals suspected of violating state or federal law.
So passing this piece of legislation under the guise of Homeland Security is a fraud. What’s at issue is the tribal establishment’s desire to re-exert total control over the reservation population as well as its resources. And do it without any responsibility or accountability for their actions.
NCAI resolution #PHX-03-010 states, “NCAI shall move forward to protect Indian Sovereignty by seeking enactment of S.578.” The tribal establishment benefits by maintaining the status quo because of the personal power that accrues to tribal leaders and because of the enrichment which the casinos have brought to the reservations. These new resources are managed, in many cases, entirely free from any need on the part of tribal authorities to be accountable to the tribe for expenditures and management of casino related revenues.
Tribal governments vary – ranging from the few that have “distinct and co-equal legislative, executive and judicial branches” to those that “do not have independent judicial branches. Lack of an independent judiciary creates opportunities for abuse….” (Heffelfinger, PRESS, 8/1/2003, p.6) On many reservations tribal government is absolutely autocratic. Once elected the power they wield is immense. It is exceedingly difficult for the tribal populace to change or to control the “in group.”
Tribal courts are subject to political pressure by the executive body (tribal councils) wherever there is no separation of powers – like on Minnesota reservations. Tribal members are not assured of due process; their civil rights are not guaranteed. The “in group” is not concerned over the erosion of individual rights. Under the Indian Civil Rights Act each tribe can determine their own civil rights. Therefore tribal members are entirely subject to those who hold the power.
If this is true for the tribal members, how much more of a threat is it to non-Indians living on or near reservations? Without separation of powers, the competency and efficacy of tribal courts is constantly in question. Without a competent judiciary, how are human rights monitored, sustained and guaranteed?
Under current law, the Feds and states have jurisdiction in major crime so it is hard to imagine how a change in the existing law would give tribes jurisdiction over terrorists anyway. If this bill should pass, I would be subject to eleven additional jurisdictions in the state. This would mean I could be sued in each of those jurisdictions; this is true for every other Indian in Minnesota. The new law would make this true also for the great number of non-Indians who live on or near Minnesota reservations.
It is possible that enactment of this legislation would create more problems then it would solve. It doesn’t seem like careful thought has gone into the formation of the bill; it doesn’t seem to have been discussed among the various tribes themselves to determine whether they would in fact want what the bill provides. Funding for needed programs and services is always a serious challenge. Given the facts of limited resources and rising demands (e.g. the increased incidence of crime on reservations, due in part to gaming) it is questionable whether tribes want or can handle the increase in responsibility. Adding these additional burdens to tribal courts and tribal law enforcement without proper consideration of all the factors involved seems problematic.
Tribal Sovereignty is the issue that is truly at stake. Recovering tribal authority taken away by Supreme Court decisions is a stated agenda item for NCAI. This appears to be the only answer as to why this legislation has been proposed.
To remain a viable institution, Tribal Sovereignty must in fact provide the same guarantees of civil rights and protections that government by and for the people of the USA provides. Along with these responsibilities, tribes ideally must also be able to provide all the needed elements of society such as health care, education, housing, a system of justice, law enforcement, etc. that are part of the US society as a whole. This scenario is nowhere visible, at least not in Minnesota.
Tribal Sovereignty at best can be viewed as an enlightened initiative to restore former tribal powers and perpetuate Indian cultural identities. At worst it is a “feel good” policy to assuage guilt over mistreatment of Native Americans. But it was always understood to mean a DEMOCRATIC process compatible with the existing civil rights, and guarantees, etc. that are embedded elements of the American social system.
For all the financial benefits that casinos have brought to reservations, the condition of the populace has not improved. It can be argued that conditions for the people have actually worsened while the condition of tribal leaders has improved markedly. For instance, tribal chairs routinely make upwards of $80,000 per year in salary and they enjoy substantial other benefits. Tex Hall, Chairman of the National Congress of American Indians is reported to have a yearly income in excess of $150,000.
Is it any wonder the tribal establishment wants all attacks on Tribal Sovereignty thwarted and an entrenched status quo? People throughout the country are appalled, as the information surfaces, at the enormous salaries American CEOs are receiving. Such excesses have in fact lead to serious financial difficulties for the companies, added risks for the investors and lay offs for the workers. The situation has attracted Congressional attention.
There is a parallel here with the situation that exists in “Indian Country.” Excessive benefits are accruing to the few who hold the power while the needs of the populace are being ignored or thwarted. And it’s ironic that the democratic process is being used to create this end.