As we have shown on this web site,
proponents of tribal governments often use the charge of racism to discredit the
legitimate views of their opponents to obstruct valid debate on federal Indian
policy issues. The following text was posted on the web site of the Montana
Human Rights Network ( http://www.mhrn.org ).
MHRN sees itself as a guardian and watch dog of evidence of racial
discrimination and "hate groups" in the State of Montana. The
executive director is Ken Toole, a long time liberal political activist and
recently elected State senator. Toole has positioned himself and MHRN as self
appointed sentinels and protectors of Indians and tribes in Montana along with a
long list of other potential social injustices defined and identified by MHRN.
It is interesting to note that, in Toole's zest to safeguard Montana's social structure
from perceived discrimination and politicaly conservative opinions, he freely
and without much thought feels quite at ease in making loose and offensive
personal attacks against individuals who don't happen to kowtow to his view of
the world.
The following is the rebuttal to an article
written by Toole suggesting a Montana couple, the husband a full blood Indian
and tribal member, had racist behavior simple because their views conflicted
with his own.
March 25, 2002
This column serves as a partial rebuttal to a charge of racism leveled by the Montana Human Rights Network and its Director, state Senator Ken Toole, D-Helena, against Roland and Lisa Morris. MHRN was required to post it on MHRN's website and to notify MHRN members of this posting as part of the settlement reached in September 2001 of a defamation and infliction of emotional distress suit brought by Roland and Lisa Morris against Toole and the MHRN.
The Facts
A member of the Chippewa Tribe of Minnesota, Roland Morris is a full-blooded Native American. With his wife Lisa, he has five children, all of whom are members of the Chippewa Tribe. With Lisa, he has received custody of four of his grandchildren, all of whom are members of the Chippewa Tribe. Lisa and Roland took custody of their grandchildren to protect them from the unending cycle of violence, drugs, alcohol, neglect, abuse and crime they personally witnessed and suffered in the reservation setting. In this process, they have struggled with some of the harsh aspects of the Indian Child Welfare Act ("ICWA"), which protects Tribes even at the expense of individual Indians.
Roland and Lisa and their children live in northwest Montana in the town of Ronan, within the boundaries of the Flathead reservation. They are not members of the Flathead Tribes, but they live and work and own land and property there. They are not unusual. About 84% of the population of the Flathead Reservation consists of people who are not members of the Flathead Tribes. Because of federal Indian policy, fully 50% of the land mass of the Flathead reservation is not tribal land. Instead, the 84% nonmember individuals, cities and towns, the State of Montana, and the federal government own 50 percent of the land within the exterior boundaries of the reservation. As residents of Montana living in a town within the boundaries of the Flathead reservation, they have firsthand experience with overreaching by the tribal government. Indeed, the Flathead Tribes claim the right to try and punish Roland and his children for alleged violations of the Tribes’ criminal code, just because they are Indians, but they do not allow them or any non-tribal member to vote in their elections, run for office, sit on a jury or act as a tribal judge. The Flathead Tribes exclude all nonmembers from these rights simply because of their race or ethnicity, i.e. they are not Flathead tribal members.
The Charge
In January 2000, the Montana Human Rights Network published a 45-page report entitled "Drumming Up Resentment: the Anti-Indian Movement in Montana." As its principle author, Toole labeled Roland and Lisa Morris racists against Indians primarily because of their opposition to the exercise of tribal governmental powers, termed "sovereignty" or "jurisdiction," over people who are not members of the tribe attempting to exercise such power.
The "Research"
The Report was more than 5 years in the making and, according to Toole in deposition testimony, it took approximately 6 to 8 weeks of his full time labor to draft. His research, however, according to his testimony under oath, consisted of little more than reading newspaper clippings kept by a tribal activist and speaking with a half-dozen or so individuals, almost all of whom were members of the Flathead Tribes or employees or former employees of those tribes. None of the people he spoke with represented any view contrary to the one he held.
While he skimmed one elementary textbook on federal Indian law, and perhaps read a clause or two of a treaty, he did not read a single U.S. Supreme Court decision on Indian law, which is the source of such law, and he did not read a single law review article on the issues.
This refusal to educate himself on the law of tribal jurisdiction over nonmembers - or even to do basic research on the subject - led Toole and MHRN to make uninformed yet serious and harmful charges against Roland and Lisa.
The "Analysis"
According to Toole, the "anti-Indian" movement is "racist at its core" because it "opposes the concept of tribal sovereignty." This movement, he says, consists of three parts, one of which is "lack of knowledge about history and law" relating to tribal sovereignty. Consequently, Toole says people who "oppose tribal sovereignty" are racist, even if they are "well-meaning." Thus, he says, while "there are well-intentioned people who are active in the anti-Indian movement who do not perceive themselves or their cause to be racist. . . [l]ooking at the total picture, we come to a different conclusion."
Note the word "conclusion." After years of simmering the work and months of drafting, Toole betrayed no uncertainty. No equivocal "opinions" for him. Not one sentence in the Report states or even hints that it is relaying mere opinions of the MHRN and Toole. No, after so much scholarly research, analysis, and deep pondering only hard conclusions, judgments really, will do. Uncertainty, equivocation, mere opinion, are too weak for this clear-eyed Torquemada. Only a "judgment" will do.
The "Judgment"
And this was it: Roland, a struggling upholsterer and full blood Indian, and Lisa, a mother to nine Indian children, are "anti-Indian" and "racists," primarily because they oppose the exercise of tribal governmental power over nonmembers, including themselves and their children. But the U.S. Supreme Court agrees with Roland and Lisa that Tribes rarely, if ever, should have such power. Why? Because of the serious deprivation of civil liberties implicit in allowing a tribal government to control people - non-tribal members - whom it excludes from equal rights of participation in the political process because of their race. So why does Toole say this is "racist"?
The Explanation
Toole’s defense hinges, as one might expect, on his personal definition of "racism," as well as other equally slippery and impossibly fine distinctions. (For example, Toole claimed in his answer to the Complaint that a charge of "racism" is not always defamatory but might have an innocent connotation. Similarly, he maintained, for a while, that actually he only labeled Roland and Lisa "anti-Indians" and, in another place, said that "anti-Indians" are racists. So, he says, he did not call Roland and Lisa racists. In his deposition he admitted, under oath, that the "inference is clear.")
Any dictionary, any direct, honest person, sees racism for what it is: "Discrimination or prejudice against someone based on their race." This clear, real definition did not suit Toole’s purposes, however, which was to label people who disagree with his notion of tribal sovereignty "racists." So he defined it himself.
Racism, he teaches us, "is a systematic effort to deny legally established rights to a group of people who are identified on the basis of their shared culture, history, religion and tradition."
Thus, Toole claimed alleged "anti-Indians" disagree with the "core concept of (tribal) sovereignty." This, he says, is the "effort to deny legally established rights" that makes such opponents of tribal sovereignty "racist by definition."
But the charge of racism against Roland and Lisa does not stick even using Toole’s personal definition. To determine whether he was justified in labeling Roland and Lisa "racists" even using his own personal definition requires an answer to the question whether their opposition to tribal jurisdiction over them sought to deny tribes their "legally-established rights" to exercise sovereignty over nonmembers. The answer is unequivocally "no."
The Law of Tribal Sovereignty
First, Toole simply does not know the law of tribal sovereignty as it does or does not extend to nonmembers. As noted above, he failed to read a single U.S. Supreme Court case on the issue, even though in the last 12 years, the Supreme Court handed down six or seven key decisions, each of which comports with earlier rulings and severely limits tribal sovereignty over nonmembers. He failed to read any pertinent law review articles. And he limited the people with whom he spoke about these issues to advocates of expansive tribal power. Toole plainly is in no position to judge.
But Toole, undaunted by his ignorance, remains self-righteously assured. Unfortunately for Toole and MHRN, the law of tribal sovereignty reveals his position as completely uninformed.
In May and June of this year the Court handed down two cases that are the culmination of almost 25 years of consistent decisions by the Supreme Court clarifying that Tribes have few, if any, powers over nonmembers. These last cases, Atkinson Trading Co. v. Shirley and Nevada v. Hicks, hold that tribes almost never have governmental authority over nonmembers. These aren’t even close questions - all nine justices concurred in both decisions; i.e. there was not one dissenter. Atkinson held that tribes cannot tax nonmembers within a reservation who are doing business on non-tribal land. Hicks held a tribe and its court didn’t have jurisdiction over a nonmember even for his conduct on tribal land. The opinion of the court emphasized that the Court has never found that a tribe had jurisdiction over a nonmember. Justice Souter, whose concurring opinion argues for an even more categorical rule against tribal jurisdiction over nonmembers, emphasized that "the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes." He added that a presumption against tribal authority over nonmembers would protect them from "intrusions on their personal liberty" by tribes. The exclusion of nonmembers both from equal rights in tribal processes and from understanding their particular "customs, traditions and practices" could have grave "practical consequences" for the rights of nonmembers.
Thus, even accepting Toole’s personal word bending, by his own definition opposing a tribe’s assertion of jurisdiction over a nonmember is not racist. According to the Supreme Court anyway, tribes almost never have such power; i.e they do not have "legally established rights" to control nonmembers in almost any case. Roland and Lisa’s opposition to overreaching by tribes to exert such power is not racism, therefore, even using Toole’s definition.
The Importance
Of course, Toole may argue the U.S. Supreme Court itself is a racist institution. One of your Board members, in fact, said so when I presented this rebuttal to them last October. Perhaps the Supreme Court too is "well-intentioned" and does not perceive itself as racist. The Justices must cower at the prospect of Toole’s learned judgment condemning them.
But they have good reason to consistently find against tribal jurisdiction over nonmembers.
The foundation of the Court’s decisions, and of Roland and Lisa’s opposition to tribal jurisdiction over nonmembers, is the factual deprivation of basic rights that nonmembers suffer when they are subject to a tribe’s governmental power. First you should know that opponents of such power, at least those I defend, do not deny there is a proper role for tribal governmental power, and it is precisely to exercise self-government.
But when such power extends to nonmembers, violations of civil rights occur automatically that we would not tolerate anywhere in the country. People are excluded from participating in government simply because they are not members of the tribe, i.e., they are excluded based on their race, ancestry or ethnicity. Nonmembers are denied the right to vote, hold office, sit on juries. If subject to a tribe’s criminal authority, a nonmember Indian could be imprisoned in a tribal jail for years, depending on how the charges were stacked. Yet, he or she has no right even to a fair jury. Simply put, because they are not Indians or are not Indians who qualify to be members of a tribe, nonmembers cannot give the "consent of the governed."
Ponder that lack. When dealing with any other type of government in this country we correctly demand all the rights such consent gets us in exchange. Indeed we celebrate these rights, in particular the right to participate in the government. In the tribal context nonmembers have none of these rights. That is a significant and dangerous deprivation.
The Damage
The charge of racism against Roland and Lisa Morris by the MHRN and Toole, of course, is absurd.
It is defamation arising from willful ignorance or malice. It matters not which.
It caused Roland and especially Lisa and the children no end of emotional distress. This included depression, lack of sleep, lack of appetite, loss of energy, and worse, which they have asked me not to detail. On an interpersonal level, labeling these people in this way caused them to be ostracized by some in Indian communities in Montana and Minnesota. Their children lost friends over this charge. It caused them a great and growing sense that slowly, steadily Indian people they had known for years were questioning their decency. And how could they not.
Notwithstanding Toole’s absurd claim to the contrary, racism is never benign. It is never innocent and the charge is always negative, always gives rise in decent people to revulsion and disgust at someone who would act in such a discriminatory manner.
The Remedy
That is why the charge of racism must be correct when it is leveled. You must know what you are talking about, and you must not allow your own biases to blind you. Do your research. You have harmed real people. Playing cute with definitions will not do. Playing fast and loose with the charge, only to admit, as Toole did under cross examination, that it may never have been accurate and that he cannot really know is simply unacceptable in civilized discourse. More, it is cynical, divisive, and dismissive of the accused as a person.
Jon Metropoulos
Attorney for Roland and Lisa Morris
P.O. Box 1715
Helena, MT 59624-1715
406-442-8560
jonmetro@gsjw.com