Indian Reservations:
America's Model of Destruction

A Brief Expose' of America's Disastrous Indian Policies
by Darrel Smith
June 1997

PART III

Rights, Protections and Values

"It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others; or their case may, by change of circumstance, become his own."

--- President Thomas Jefferson

1776 or 1996?

    The reservation system and tribal taxation, licensing, and regulation of non-members raises many fundamental questions about our country and our values. The foundation of liberty in America, the Declaration of Independence, tells us that "all men are created equal." But on Indian reservations, all men are not treated as equals, either by the United States government or by tribal governments.
    The Declaration of Independence states that governments derive "their just powers from the consent of the governed," yet the vast majority of non-members have never acceded to tribal authority.
    Among the colonists' grievances listed in their Declaration is the complaint that King George pressured the colonists to "relinquish the right of Representation in the Legislature." Currently, non-members have absolutely no right of representation in tribal governments.
    The King had "combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation." Non-member reservation residents are similarly aggrieved by tribal governments that claim sovereign authority to regulate their lives, even though these "sovereigns" are apparently not bound by this nation's Constitution.
    The Declaration goes on to cite the most memorable of the colonists' grievances - "For imposing taxes on us without our Consent." Tribes have been given the right to tax non-members without their consent.
    The colonists tried to caution the British and had "warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us."
    Ultimately, the people we now honor as the founders of our country warned England of the negative consequences "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism. . . ."

Did the Constitution Come with a Limited Guarantee?

    It is absolutely inconceivable that Indians and non-members living and working on Indian reservations are denied the same protections and rights enjoyed by Americans everywhere else in the country.
    Article IV, Section 4 of the Constitution reads: "The United States shall guarantee to every State in this Union a Republican Form of Government . . . ." The right to vote is the very foundation of a republican form of government. Does this mean that Indian reservations are not part of a state, and therefore exempt from "a Republican Form of Government"?
    The Fifteenth Amendment guarantees that, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race . . . ." Some argue that tribes are not racial, but rather that they are political entities. Such an argument attempts to conceal reality behind a smoke screen. They are political entities whose membership is based solely on race and ancestry.
    Further, Section 2 provides that "The Citizens of each State shall be entitled to the Privileges and Immunities of Citizens in the several States." Are those who live within reservation boundaries no longer citizens of the state?
    The Fourteenth Amendment guarantees the "equal protection of the laws." This guarantee is constantly violated for all reservation residents.

A Special Status for Tribal Members

    Special classes of citizens were common in Europe at the time this country was founded. Early political leaders recognized the inherent unfairness of such systems and made special provisions to see that nothing similar developed in this country. For instance, they adopted a constitutional provision which denies both national and state governments the ability to grant titles of nobility.
    While Indians are not considered members of nobility, the ability to take advantage of being a member of a "sovereign nation," ward of the government and minority citizen simultaneously results in a similar "special status."
    Whenever individuals or groups of individuals are singled out for special treatment under the law, persons who are not members of the "elite" group necessarily are subjected to "second class" status.
    What is not as readily apparent, but still true, is that the group that has the "special status" is also disadvantaged in many perverse ways. Thus the "special status" itself, while addictive, also becomes a form of oppression.

Liberty for All?

    American heritage was created when the founding fathers based the future stability of the fledgling nation on the individual's right to vote and the right to self-determination. The issue was important enough to them that they pledged "their lives, their fortunes, and their sacred honor" to gain it. During the Revolutionary War, many of those founding fathers lost their lives and fortunes over issues of taxation and representation.
    Nearly a century later, this nation fought a bloody civil war, at least partly over the issue of citizenship rights for black Americans.
    Eventually, American women demanded the right to vote, and waged a lengthy, but ultimately successful, campaign to obtain that right. The second half of this century is replete with examples of distinct classes of American citizens successfully demanding that they receive equal treatment under the law, regardless of their race, gender, national origin, or ethnicity.
    In the past decade, America joined other nations to pressure South Africa into granting black South Africans voting and citizenship rights. Our elected officials have gone so far as to send American troops to foreign countries to guarantee the basic liberties of oppressed minorities. It is sadly ironic that Americans have lost their lives defending democracy in other countries while our government ignores similar travesties here at home.

"What is the Constitution to Us?"

    For the American government to allow the situation that exists on Indian reservations to continue is utterly hypocritical. So long as we have different rules for different people, based solely on the race of those people, the problems will persist. Until Americans of Indian descent are treated as individuals, and not as tribes, true democracy in this country will not exist.
    Many reservation residents feel they have been moved backwards in time at least two centuries. In 1794 a group of Sheffield workmen demanded "What is the Constitution to us if we are nothing to it?" Hundreds of thousands of reservation residents in this country are beginning to ask similar questions about our government and its policies . . . and their voices are getting louder.

The Bottom Line

"Our aim is to recognize what Lincoln pointed out: The fact that there are some respects in which men are obviously not equal: but also insist that there should be an equality of self-respect and of mutual respect, an equality of rights before the law, and at least an approximate equality in the conditions under which each man obtains the chance to show the stuff that is in him when compared to his fellows." --- President Theodore Roosevelt

Findings of Fact

A Second Civil War?

    A University of Puget Sound Law Review article (Vol. 14, p.216,1991) sums up the present problem this way:

    "The current  'civil war' being waged over the extent of tribal government power over non-members and their lands and resources within the original reservation boundaries simply reflects the tension between two sets of promises: the first promise made to the Indian tribes in the treaties and the second promise made to non-Indian citizens in the allotment acts."

Thus the federal government has changed the original promises it made to both the tribes and the homesteaders, but there is a vast difference between the two groups.
    While Indians may have received sordid treatment at the hands of the U.S. government, the changing promises to tribes were generally accomplished with some kind of tribal consent and new agreements. The promises to the homesteaders were broken without consultation, consent, or compensation of any kind. Instead they have been treated very much like unwanted, illegitimate children. In spite of the fact that almost as many non-members as tribal members live on reservations, their problems, and even their physical presence, appear to be not only inconvenient, but embarrassing as well.
    Many Indians and non-Indians feel betrayed and cheated by the policies of the federal government. Since the Civil War era, the reservation system represents one of the greatest systematic violations of the principles expressed in the Declaration of Independence, and Constitution, this country has experienced. Current federal Indian policies destroy property values and trap both Indians and non-Indians in economic, social, and personal chaos.
    Such massive violations of our most basic values and principles couldn't be justified even if they were highly successful. Instead, Indian policy has been a generally recognized failure and embarrassment primarily because of these same violations. It is time to return dignity, respect, and opportunity to Indian reservations.
    Ethnic and racial tensions are exploding all over the world. We are being very optimistic if we think they can't develop in this country on our reservations. Far too often, Indians blame non-Indian neighbors for their social and economic situation, and non-Indians blame Indian neighbors for theirs.
    The real culprits, however, are the federal policies which breed tension on reservations. Until our Congress and our President honestly examine the issues and address them head-on, the embers of discontent and destruction will continue to burn.

Recommendations For The Federal Government

"Justice delayed is democracy denied." --- Robert F. Kennedy

End Federal Discrimination on Reservations

    A final example might drive home the need for change. According to a former tribal chairman, over ninety million dollars comes into the Pine Ridge Indian Reservation each year. In 1990, there were 11,180 Indians that lived in the reservation. Shannon County lies totally within this reservation and in 1994, it was listed as the second poorest county in the nation by the Bureau of Economic Analysis. What will it take before Congress realizes that there is something wrong with this system - and then does something about it.
    A major readjustment similar to that which occurred a century ago is necessary. A primary obstacle to that readjustment will be the significant forces that benefit from the current system and its multibillion dollar federal budget. While Congress formally controls tribes through the BIA, as modern political theory predicts, tribes exert significant informal control over the Indian related actions of Congress. This is accomplished in several ways. Networks of tribal lobbyists and law firms are very active and effective. The congressional committees that deal with Indian issues are staffed primarily with tribal members as is the BIA itself. Tribal representatives have spent years successfully cultivating a sympathetic relationship with the media and few Senators or Representatives relish the thought of being portrayed by the media as hostile to Indians and their programs. As a result, very few laws have passed Congress in the last few decades over the collective opposition of the tribes. Support for a major readjustment will come from the rapidly increasing number of people who are beginning to realize the growing tragedy these policies cause.
    The current discriminatory Apartheid system needs to be intelligently and systematically dismantled if reservation Indians are ever to share in the freedom, rights and prosperity most of us enjoy.
    As Judge Randall has argued, our American society is wonderfully flexible, adjusting to many different ethnic and economic needs. Our society has accommodated ethnic groups like the Old Order Amish and others without putting them on reservations. We regularly demonstrate that we have the legal framework to help all kinds of people who need help, and many who don't. He has said:

"[T]his country, has the power and the legal right to protect any and all parts of Indian identity, culture, tribal assets, self-determination, religion/spirituality that needs to be protected, and yet do it all within the framework of treating American Indians like we treat ourselves, as normal citizens of this state, of this country. The real issue is, do we have the will?"

Implement These Recommendations

1. Extend full and equal constitutional protection to all American citizens.

2. Devise a practical way to enforce contracts, including allowing aggrieved parties to file suit in state or federal court.

3. Separate the political and economic functions of tribes.

4. Extend guaranteed equal voting rights and political participation to everyone under tribal jurisdiction.

5. Eliminate the guardian/trust roles of the federal government, transferring functions to individuals, the local representative government, or other responsible entities.

6. Eliminate the territorial status of reservations.

7. Consider establishing temporary tax credits or enterprise zones to stimulate economic activity and employment on reservations.

8. Protect non-members from tribal taxation, regulation and licensing requirements.

9. Require all tribal claims to be filed solely against the federal government to be paid in monetary damages from general tax revenue.

10. Move Indians toward true self-determination - the same kind of self-determination other Americans enjoy, not one that is merely a disguise for another form of dependence.

Justice -- and Opportunity -- for All

    Finally, we need to ask ourselves a few simple questions. Have the policies of the United States towards Indians generally told a story of success or failure? Have these policies proved to be models that members of any other racial classification would like to have applied to their group? If the present approach to Indian policy hasn't solved reservation problems after over a hundred years of effort, how long are we willing to continue a similar approach? What are we really communicating when we insist that Indians need a permanent form of guardianship?
    As a group, Indians are as capable as any other group of people in this country. We need to return dignity, honor, respect, and the possibility of economic prosperity to reservation areas. The United States has thrived because our governmental systems have generally protected the genius and initiative of a free people. Depriving reservations of these protections, under the guise of favor, is truly an Orwellian form of oppression. Will you help reservations move toward a basic American ideal - that of being "one nation, under God, indivisible, with liberty and justice for all?"

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