EPA is Destroying Constitutional
Rights
by Ruben Spiedel and Jim Petik
The EPA is pushing non-members under tribal environmental jurisdiction in various places around the country. County Commissioners and a citizen's group raise their objections to an EPA proposal in this letter.
Dear Mr. Carlson:
Thank you for the informational meeting you held in Mclaughlin,
South Dakota on Dec. 11, 1997. The Corson County Commissioners and People for Corson
County are concerned about the EPA's proposal to transfer primary jurisdiction over
municipal water systems to the Standing Rock Environmental Quality Commission (SREQC). Due
to the national scope of Federal Indian Policy, over 370,000 non-members on reservations
and millions of others near reservations are threatened by this and other similar
proposals. We have the following basic concerns about the proposal.
The right to vote in government is one of the most basic rights in our
country. In Art. IV, Sect. (4) the Constitution says, "The United States shall
guarantee to every State in this Union a Republican Form of Government." A law
dictionary defines a republican government as, "a government of the people; a
government by representatives chosen by the people."
The Supreme Court has said, "By the Constitution, a republican
form of government is guaranteed to every State in the Union, and the distinguishing
feature of that form is the right of the people to choose their own officers for
governmental administration, and pass their own laws in virtue of the legislative power
reposed in representative bodies whose legitimate acts may be said to be those of the
people themselves; but while the people are thus the source of political power, their
governments, national and state, have been limited by written Constitutions, and they have
themselves thereby set bounds to their own power, as against the sudden impulses of mere
majorities." The Court went on to say that governmental powers "must be
exercised by representatives of the people; that the basis of representation is suffrage;
that the right of suffrage must be protected and its exercise prescribed by previous
law" (Duncan v. McCall 139 U.S. p. 449(1890)).
Having limited representation on the SREQC, as proposed by the Standing
Rock Sioux Tribal Council (SRSTC), is helpful but doesn't provide any real protection
because the decisions of the Commission could be overruled by the tribal council.
Therefore, we still object to the SRSTC proposal because it would subject non-members of
the tribe to tribal jurisdiction even though we are excluded from equal participation in
tribal government because of our race and ancestry.
If the tribe exercised their environmental powers under the EPA's
proposal and cited one of our non-member communities for a violation, we would be forced
to either pay the fine or enter into the tribe's court system. We object to being subject
to the tribal court system because we are excluded from having any voice in the structure,
rules or personnel of the tribal court. We are excluded from having a part in selecting
the judge or serving on any jury that might or might not be involved. The EPA's proposal
effectively denies us access to constitutional courts and the right to a jury of our
peers.
The long term experience of tribal members in the tribal system is also
not encouraging for us. The present tribal governments were established after the Indian
Reorganization Act of 1934. After over sixty years, Indians on reservations are still not
protected by either the state or the federal constitutions. Minnesota Appeals Court Judge
R. A. (Jim) Randall has clarified this problem very well in the Cohen v. Little Six legal
opinion:
"It is not known to all reading this opinion that the following list of state and
federal constitutional guarantees and rights are not in place for Minnesota Indians
domiciled on a reservation: There is no guarantee that the Minnesota Constitution, the
United States Constitution and its precious Bill of Rights will control. There are no
guarantees that Civil Rights Acts, federal or state legislation against age
discrimination, gender discrimination, etc. will be honored. There are no guarantees of
the Veteran's Preference Act, no civil service classification to protect tribal government
employees, no guarantees of OSHA, no guarantees of the Americans with Disabilities Act
(1990), no guarantees of the right to unionize, no right to Minnesota's teacher tenure
laws, no right to the benefit of federal and state "whistleblower" statutes, no
guarantees against blatant nepotism, no guarantees of a fair and orderly process
concerning access to reservation housing, and no freedom of the press and no freedom of
speech.
"In other words, all the basic human rights we take for granted,
that allow us to live in dignity with our neighbors, are not guaranteed on Indian
reservations under the present version of sovereignty."
The EPA proposal will require tribal members who live in the affected communities to be
subject to tribally enforced EPA regulations without the same constitutional protections
that other Americans enjoy. If this is the status of tribal members, what protection can
non-members expect from tribal government when we have even fewer rights and less
influence in tribal government than tribal members? Frankly, we don't know and we doubt if
anyone else does either.
Another concern is the tribe's legal ability to discriminate against
non-members. The tribe's ability to exclude non-members from voting is only the beginning
of this discrimination. Tribal law demonstrates examples of employment discrimination,
land lease discrimination, and tax discrimination. The entire tribal system is based on
exclusion and discrimination. Non-members are also excluded from equal access to tribal
government information.
At the informational meeting it was stated that any fees or fines that
may be levied (a power the SREQC will have) will be paid to the SREQC itself. In contrast,
fees or fines levied by the EPA are payable to the U. S. Treasury. Paying fines to the
SREQC would be like paying traffic fines to the traffic officer. The conflict of interest
and incentive to levy fines are obvious.
These concerns threaten our communities with the potential of many
legal problems, conflicts and financial strains. In contrast, tribal governments have more
immunity from lawsuits than any other government in the country. Even if tribal actions
some day prove to be totally negligent, arbitrary or unconstitutional, the tribe is
completely protected from any unwanted lawsuit by the legal concept of tribal sovereign
immunity.
Your proposal forces us, without our consent, to live under the
jurisdiction of a government that excludes us because of our race and ancestry, subjects
us to a court system that is not responsible to us, is not bound by either our state or
federal constitutions, has a legal right to discriminate against us and is protected from
any challenge from us by its sovereign immunity. These realities mean that you are
subjecting us to a jurisdiction that is almost completely unaccountable to us. How can you
pretend that we will have the equal protection of the law that we are guaranteed by the
Fourteenth Amendment?
We would like you to explain simply and specifically where you are
getting the authority to do these things. Is Congress mandating or allowing these actions?
Where does the EPA, Congress or the Courts get the authority to violate our human rights
against our will and without our consent? Most agencies of the federal government are
prohibited from discriminating on the basis of race. Please send us the basis of your
anti-discrimination regulations.
Sincerely,