By
Scott Seaborne
In the February 2003 edition of CERA News, we asked if you thought your elected leaders were motivated by advocacy or avarice.
In this edition of CERA News, we ask a similar question. Would your representative introduce legislation that was harmful to your interests and then disguise the language or hide the language in other unrelated bills so you wouldn't know about it?
This is the question raised by Senate Bill 578 (S.578) and the companion House Bill 2242 (H.R. 2242) and the sponsor, US Senator Daniel Inouye (D-HI).
Senator Inouye, by most accounts is a good man. He was born in Hawaii in 1924 of humble means, was a good student, and worked hard for his money. Following the Japanese attack of Pearl Harbor in 1941, Inouye enlisted in the Army were he rose swiftly in rank to become a platoon leader in the European theater during WWII. There he was awarded a Bronze Star, Purple Heart and other citations. After the War Inouye returned to school using financial assistance from the G.I. Bill to get a law degree. Later he was elected to Hawaii's State Legislature. When Hawaii became a state in 1959, Inouye was elected to the US House and he has returned to Congress as Hawaii's State Senator since 1962. Senator Inouye has served on the Senate Committee on Indian Affairs (SCIA) for about 16 years.
The question we raise now is whether a distinguished and respected US Senator is using his good reputation to promote homeland security or is he trying to deceive the public and Congress over the real intent of his bill S.578 and companion bill H.R. 2242?
When Inouye introduced S.578 on March 7, 2003, he said, “Mr. President, I raise today to introduce a bill that would amend the Homeland Security Act of 2002 to include Indian tribal governments amongst the governmental entities that are consulted with respect to the activities carried out by the Secretary of the Department of Homeland Security.” Inouye continues, “…this measure also makes clear that for purposes Homeland Security, the United States recognizes the inherent authority of tribal governments to exercise jurisdiction currently with the federal government to assure that applicable criminal, civil and regulatory laws are enforced on tribal lands.”
This is Senator Inouye’s “silver tongue” approach. His stated purpose of S.578 was to include Indian tribal governments and their reservations in Homeland Security preparedness. That sounds like a laudable idea so what could be wrong with that? Answer: Indian tribes are already included in the Homeland Security Act of 2002. The Act expects tribes to cooperate and coordinate homeland security activities with local governments but many tribal leaders are demanding separate tribal security programs and funding under exclusive tribal control.
Inouye conveniently failed to elaborate on Section 13 of this bill. Section 13 contains the following language: “…For the purpose of this Act, Congress affirms and declares that the inherent sovereign authority of an Indian tribal government includes the authority to enforce and adjudicate violations of applicable criminal, civil, and regulatory laws committed by any person on land under the jurisdiction of the Indian tribal government…” and “…The authority of an Indian tribal government described in subsection (a) shall…” extend to “(A) all places and persons within the Indian country…under the concurrent jurisdiction of the United States and the Indian tribal government; and (B) any person, activity, or event having sufficient contacts with that land, or with a member of the Indian tribal government, to ensure protection of due process rights.”
CERA lawyers and legal advisors reviewed Section 13 just after the bill was introduced and were immediately concerned with the Section 13 language which appeared to grant powers to tribal governments that recent decisions of the US Supreme Court rulings prohibited.
What is the true purpose of these bills? Is this is a red-herring attempt to expand tribal government jurisdiction, in a surreptitious fashion, over hundreds of thousands of non-Indian US citizens without their knowledge? The hidden agenda behind S.578 and H.R. 2242 can be easily exposed. Inouye and members of the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) have been working on this expanded tribal jurisdiction agenda since that fateful day, Sept. 11, 2001. While the Nation was distracted by the terrorist attacks that day, tribal leaders began planning their strategy to overturn Supreme Court decisions, of which they did not approve.
Because federal Indian policy is such a quagmire of conflicts and confusion on good days, it requires US Supreme Court interventions on the bad days. The tribal sovereignty “industry” has been disappointed lately in the Supreme Court rulings on tribal sovereignty and jurisdiction. It seems the Court didn't agree with their views of tribal government powers. The Supreme Court feels tribal governments should exist within a hierarchy of federal-state-tribal government laws and jurisdictions but NCAI, NARF, tribal leaders and Senator Inouye thinks Indian tribes should be, at the very least, as sovereign as the states of the Union. If this “sovereignty establishment” has its way we will need a new national flag with 610 stars on it! There would be 50 stars for the states and 560 more stars for the tribal governments.
NARF and NCAI wrote draft legislation seeking a legislative overturn of the Supreme Court decision in Nevada v Hicks long before Senator Inouye ever thought of introducing amendments to the Homeland Security Act of 2002. Inouye, with close ties to both lobbies, was well aware of the NARF Supreme Court Project and the NCAI Tribal Sovereignty Protection initiative. In the beginning, Inouye was primarily supporting NARF and NCAI efforts to expand tribal sovereignty.
On February 24, 2003 Inouye attended NCAI’s Winter Convention in Phoenix AZ. In his prepared speech for the Convention, he announced that he could promote tribal sovereignty by including sovereignty language into a Homeland Security Amendment bill. While speaking there he talked much about tribal sovereignty and little about America's homeland security.
Inouye said at this meeting, “One of the most dangerous aspects of the U.S. Supreme Court ruling in the Nevada v. Hicks case is that it serves to underscore that other governments are perceived as having authorities that trumps those of tribal governments.”
He continued, “I would respectfully suggest that homeland security presents an opportunity for Indian Country to change that perception and to secure a status under Federal law that will not only recognize your powers and responsibilities as governments, but will strengthen your positions and your status in the family of governments that make up the United States.”
Inouye concludes his speech by saying, “And last but not least, the bill will reaffirm and declare that the inherent sovereign authority of tribal governments includes the authority to enforce and adjudicate violations of all criminal, civil, and regulatory laws committed by any person on lands within the jurisdiction of each tribal government.”
The following day, February 25, 2003, news wire stories reported on Inouye’s speech.
Quoting a story from Indianz.com, “He” [Inouye] “told attendees of the National Congress of American Indians (NCAI) that the goal was to overturn recent Supreme Court rulings by recognizing that tribes have primary law enforcement duties on their lands.”
The same article quotes Inouye saying, “Least of all, you should be as sovereign as any state in the union.” And Inouye added, “You have not only given your land, you have not only given your culture, you have given your blood to this Country.” “It is about time we have payback.”
Also the same day, NCAI sent out a press release that said, quoting Inouye, “This bill will reaffirm the sovereign nature of tribes and will allow tribes jurisdiction over criminal and civil cases and laws.”
On February 26, 2003 an article from Indian Country Today quoted Inouye, “If we get this bill passed, and that should be our goal, then you can throw Nevada v. Hicks out the window.”
Now contrast these statements from Senator Inouye to those he made prior to his introduction of S.578 in the United States Senate on March 7, 2003. How did Inouye get from tribal sovereignty to Homeland Security? It is apparent we have conflicting motives here. Which is the legitimate agenda, the silver-tongued Senator espousing improvements for Homeland Security or the fork-tongued Senator trying to expand tribal government jurisdiction over the limits set by the Supreme Court?
The most telling statement by Senator Inouye is when he told NCAI members that the homeland security issues represented an “opportunity” to “strengthen your positions” and “recognize your powers”.
The reason Senator Inouye and the tribal sovereignty special interests use stealth tactics to get their agenda passed into law is that it won't fly as a stand-alone position. The expanded tribal sovereignty agenda is so rife with negative consequences to local governments and civil liberties that they know the issue would die if they were candid and clear about these impacts if their agenda became law.
Senator Inouye’s silver tongue got a big coat of tarnish on July 30, 2003. The Senator conducted another hearing before the SCIA on his bill, S.578. The witness list before the Committee was stacked with tribal leaders extolling the virtues of fully including Indian tribes in the Homeland Security funding. There was little discussion of the infamous Section 13 by the tribal panel. The tarnish was applied by the testimony of United States Attorney, Thomas B. Heffelfinger, who is also the Chairman of the Attorney General Advisory Committee's Native American Issues Subcommittee. Heffelfinger focused his testimony on Section 13. Heffelfinger called Section 13, “A legislative overturn of the Supreme Court decision in Oliphant v. Suquamish Tribe.” Heffelfinger said, “…overruling Oliphant in a broad manner could result in complicated legal and practical law enforcement issues such as due process concerns, double jeopardy, and appeal rights. Enacting Section 13, prior to working through these complicated matters, is premature and we do not believe that S.578 provides the best avenue for doing so.”
Heffelfinger noted Inouye’s bill also conflicted with another existing law by stating, “Under the Indian Civil Rights Act, tribal courts are limited to misdemeanor punishments.” In fact this entire incident begs the question as to the quality of Senator Inouye's legal staff and the Senator’s own legal training that all these legal and Constitutional conflicts weren't better addressed before bringing the bill forward.
Mr. Heffelfinger identified other obvious conflicts with individual rights and civil liberties protection in Section 13. He indicated Inouye's bill raised problems with “Separation of Powers”, “Indigent Defense Counsel”, “Jury Pools” and “Appellate and Habeas Corpus Relief”. In respect to civil liberties he said of Inouye's bill, “As the working group considered Section 13, specifically an Oliphant-fix, generally it became clear that specifically expanded tribal jurisdiction raised serious issues regarding protections for individual’s due process rights.”
Heffelfinger noted the odd placement of tribal sovereignty issues with homeland security efforts. He said, “Homeland security concerns are primarily law enforcement concerns, not tribal court concerns. It is the ability of tribal authorities to investigate and arrest suspected terrorists that is at issue, not the ability of tribal courts to prosecute such individuals. (It is highly unlikely that the federal government would defer federal felony prosecution in such cases to tribal court misdemeanor prosecution." Heffelfinger characterized Section 13 language as a “significant expansion of tribal jurisdiction.”
Heffelfinger concluded, “Without offering comment on the specifics of the remainder of the Bill, we note that Section 13, as currently written, is too broad because it would expand tribal criminal jurisdiction over non-Indians without adequately providing for common rights defendants expect in federal or state courts.”
While attorney Heffelfinger may have exposed the ruse in Inouye's bill, NARF and NCAI remain committed to repeat these kinds of legislative hi-jinks to expand tribal powers trumping the Supreme Court's oversight of tribal sovereignty. At the their July 13th, 2003 convention in Phoenix, NCAI passed “NCAI Resolution #PHX -03-001” The resolution states “Whereas, support for these bills is consistent with the TSPI [Tribal Sovereignty Protection Initiative] Tribal Leaders Steering Committee's strategy for enhancing and protecting tribal governance by inserting concepts from the comprehensive TSPI bill draft into other legislation that is moving or has some prospects for success and S.578 and H.R. 2242 are such bills.”
Clearly S.578 and H.R 2242 appear to be just the beginning of efforts to hide sovereignty expansion language in other bills rather than allow the tribal sovereignty agenda to face open national debate.
The Heffelfinger testimony on July 30, 2003 clearly vindicates CERA and CERF's concern and warnings about the Section 13 language and the hidden sovereignty agenda.
This agenda is hidden because the Indian sovereignty lobbies, including Inouye and S.578 co-sponsor colleagues Akaka, Cantwell and Nighthorse-Campbell, argue that current laws restrict tribal governments from arresting and prosecuting criminals acts by non-Indians and their attempts to hide sovereignty language in other bills is their attempt to correct what they perceive as bad rulings of the Supreme Court. If their concern is getting non-Indians to comply with the law, I can offer a quick solution. There are, already, fully trained and equipped law enforcement personnel, agencies and infrastructure existing in state and local governments that are fully capable of arresting non-Indians. They are state and local police forces with authority within Indian reservation boundaries. The NARF-NCAI-Inouye argument that Indian reservations are a potential security breach is a better argument to extend existing state jurisdiction over Indian reservations than an argument to expand tribal law enforcement jurisdictions that threaten our civil liberties.
Currently. S.578 and H.R. 2242 are still pending in Congress. If you are living on an Indian reservation, living near an Indian reservation, traveling through an Indian reservation, patronizing a tribal casino, doing business on an Indian reservation with an Indian tribe, have contact with Indian land or tribal member, your civil liberties maybe severely impacted if these bills pass into law. Please contact your elected representatives and let them know you oppose these two bills and you object to hiding tribal sovereignty initiatives in unrelated legislation.
Remember, if these sovereignty initiatives are so good then why do otherwise fine leaders resort to disguising them in other bills rather than address them out in the open. The next time you go to the voting booth, ask yourself who spoke with a forked tongue.
Please visit our website at www.citizensalliance.org for more details on S.578 and H.R. 2242