by Andrew Walden
Spurred on by testimony November 10th from President Obama’s handpicked US Associate Attorney General Thomas J Perrelli, the US Senate Committee on Indian Affairs may soon vote to advance legislation placing all Americans under the jurisdiction of unaccountable Tribal police officers and Tribal courts.
Perrelli is pushing for passage of Senate Bill 1763, the so-called Stand Against Violence and Empower Native Women Act, also known as the SAVE Act. Introduced by Hawaii Democrat Senator Dan Akaka October 31, the SAVE Act was referred to the Indian Affairs Committee which Akaka chairs. The bill is cosponsored by ten Democrat Senators.
When Hawai`i Free Press commented on a November 9 Akaka press release by pointing out that SB1763 could allow any “Akaka Tribe be able to Arrest, Prosecute, and Imprison Non-Tribal Members”, Akaka’s Press Secretary Jesse Broder VanDyke demanded censorship. By email he wrote:
“Your headline here is insulting, misleading, and plain wrong. You should take it down immediately…. What is the basis for the completely false and offensive headline you attached to our press release?”
Perhaps VanDyke has confused Hawai'i Free Press with other Hawai'i media outlets. This writer wonders how and where VanDyke got the idea he could order reporters around. In any case, there is nothing “false” about the headline and we couldn’t care less if VanDyke, Akaka or anybody else is “offended.”
And here is the answer to VanDyke’s question:
The SAVE Act extension of Tribal jurisdiction over non-tribal members and events on non-tribal land would dramatically expand the jurisdiction of any Akaka Tribe. Notably, Akaka, along with then-Rep Neil Abercrombie, in 2009 re-wrote the Akaka Bill to create an instant legal jurisdiction with legal immunity for tribal officials. This cost Akaka the support of House and Senate Republicans as well as Hawaii’s Republican then-Governor Linda Lingle and Hawaii’s then-Attorney-General Mark Bennett, but Akaka has stuck with the instant jurisdiction version ever since.
Under SAVE, any Akaka Tribe would have jurisdiction not only over Tribal members, but the estimated 73% of Native Hawaiians excluded from the Tribe by the Waihee Roll Commission operating under Akaka’s restrictive membership rules. The Tribe would also rule over the approximately 80% of Hawaii residents who have no Hawaiian ancestry. The Akaka Tribe—which unlike most Indian tribes would start out wealthy and bristling with lawyers—would also have jurisdiction over persons throughout the United States.
Under current law, Tribal authorities have no jurisdiction over non-tribal members nor do they have jurisdiction over crimes committed outside of Tribal lands. If enacted, SB1763 would change all of this--reversing US law and precedent going back to the first Indian treaties. In 1885, the Major Crimes Act (MCA) codified the treaty arrangements, placing most felonies committed even by Tribal members on or off Tribal land—including rape—under exclusive federal jurisdiction. That Tribes have jurisdiction only over Tribal members was reaffirmed by the 1968 Indian Civil Rights Act and more recently by the 1978 US Supreme Court decision in Oliphant v Suquamish Indian Tribe.
Writing for the 6-2 majority in Oliphant, Chief Justice William Rehnquist describes a scenario where 50 people attempt to form an unaccountable government ruling over 2,928 other people:
According to the District Court's findings of fact "[The] Madison Indian Reservation consists of approximately 7,276 acres of which approximately 63% thereof is owned in fee simple absolute by non-Indians and the remainder 37% is Indian-owned lands subject to the trust status of the United States, consisting mostly of unimproved acreage upon which no persons reside. Residing on the reservation is an estimated population of approximately 2,928 non-Indians living in 976 dwelling units. There lives on the reservation approximately 50 members of the Suquamish Indian Tribe. Within the reservation are numerous public highways of the State of Washington, public schools, public utilities and other facilities in which neither the Suquamish Indian Tribe nor the United States has any ownership or interest."
The Court ruled:
Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.
In spite of all this history, the November 11th AP headline in one Michigan newspaper reads: “NEW: Justice Department tells Senate: Tribal courts lack authority over non-Indians in domestic-abuse cases.” The November 11 Honolulu Star-Advertiser headline is, “Abuse of Indians Draws Scrutiny.” Much of the rhetoric backing SAVE pitches the bill as the solution to a “rape crisis” in Indian Country. SAVE comes hot on the heels of another rape bill--the Tribal Law and Order Act (TLOA) which provided more federal law enforcement resources to tribal lands within the existing framework of federal jurisdiction. President Obama signed TLOA into law on July 29, 2010.
Stopping rape is a Sacred Cause. What better way to dissuade serious analysis of SAVE’s effect?
In spite of the Oliphant ruling, SAVE would not be the only legal lever granting Tribal authority over non-tribal persons. Life under SAVE is presaged by a 1978 law known as the Indian Child Welfare Act. ICWA is already being used nationwide to reach into the homes of non-Indians divorced from or never married to Tribal members and seize their part-Indian children. Advocates demanding reform of ICWA explain:
Though ICWA Supporters say safeguards within the Indian Child Welfare Act prevent misuse, scores of multi-racial children have been hurt. Kids, never involved with the reservation, are forcefully removed from safe, loving home and placed with strangers - sometimes unsafe strangers.
On a page with dozens of letters from mothers and fathers whose children have been taken from them by tribal authorities, ICWA reformers point out:
YES - These letters have come from many different states. And NO - the tribes involved are not always from the same state as the child. ICWA allows tribes to petition for jurisdiction across state lines.
Saving Indian children was another Sacred Cause.
If enacted into law, SB1763—like ICWA-- would represent the “specific authorization” from Congress for Tribal police, prosecutors, judges and juries to assert jurisdictional authority over non-Indians. Not mentioned by the advocates as they endlessly expound poorly-sourced statistics about the “rape crisis”--Indian Tribes are not bound to obey or uphold the Bill of Rights of the US Constitution. Instead, Tribal governments are directed to require themselves to uphold the much more limited protections guaranteed in the 1968 Indian Civil Rights Act.
In practice, even these limited civil rights often mean little to Indian defendants facing corrupt and autocratic Tribal governments—and would mean even less to non-Indian defendants. In its groundbreaking 2001 expose, Civil Rights in Indian Country, Minnesota Public Radio describes the realities of life on the Red Lake Reservation in Northern Minnesota:
The US Constitution stops at the borders of Indian Country. The U.S. Supreme Court ruled more than 100 years ago that the document does not apply to Indians living on reservations. Legal rulings since then have established it's up to tribal governments to protect basic civil rights that non-Indians take for granted. If tribal governments abuse that responsibility, victims have few places to turn.
The Red Lake Indian Reservation in northern Minnesota has had a tribal court for more than a century. Chairman Bobby Whitefeather says the court does its best to protect the civil rights of band members. He admits that wasn't always the case.
"Previously, dissension was something that was not well tolerated by the administration at that point in time," he says.
Whitefeather is referring to the 32-year reign of former chairman Roger Jourdain, whose administration controlled a court that according to a 1986 Star Tribune investigation, denied jury trials, jailed people for days without specifying charges, and denied prisoners the opportunity to post bail. In 1982, Jourdain and the tribal council effectively barred lawyers from tribal court, unless they could speak the native language.
Describing the scene on the White Earth Reservation in Northwestern Minnesota, MPR explains:
White Earth's court system is built against a dismal backdrop of repression and corruption. The 20-year regime of former Chairman Darrell "Chip" Wadena, which ended in 1996, included a host of abuses: political favoritism, embezzlement, fraud and stolen elections. Judge Fineday admits there were civil rights abuses on a massive scale.
"The judge did what the tribal council wanted done, and if the tribal judge did something that the tribal council didn't like, they lost their job. If the tribal council didn't like you, you didn't get a job, you didn't get a house. The system was corrupt to its core," says Fineday.
Trusting in a government with that kind of past is hard to do, says band member Ray Bellecourt. He believes there are no civil rights on his reservation, and nowhere to turn for help.
"When your rights are violated up there, you've got one place to go - to the people that are violating it. And they're not going to act on it. It's like asking the gorilla to get off your back. It's not going to happen," says Bellecourt….
White Earth activist Marvin Manypenny says tribal councils have too much influence over tribal court systems. "You might as well have kingdoms, you know, a king making all the decisions for you. We demand participatory democracy," says Manypenny.
There could be lots of highly skilled talent available to a future Akaka Tribe. For instance, the Tribal Sherriff could be Bumpy Kanahele. The Tribal Attorney General could be Clayton Hee. The Tribal Judge could be Mililani Trask. And the Tribal Prison could be overseen by Warden Larry Mehau.
Criminal defendants are not the only persons whose rights are violated by tribal governments. There is no freedom of speech nor freedom of the press. MPR’s attempts to interview tribal journalists resulted in a story titled, “Speech on the Reservation Isn’t Free”:
Numerous journalists working for tribal newspapers or radio stations declined to be interviewed for this story, saying they fear economic reprisal. Media maverick Bill Lawrence isn't surprised.
"On the reservation, the tribal government controls the courts and almost every aspect of life. Unless you get along with them and write what they want you to write, you don't have long to exist on reservations," says Lawrence.
Lawrence (who passed away in 2010) is a veteran of legal skirmishes with tribal government. He publishes the independent Ojibwe News - what he calls the only truly independent newspaper in the state that focuses on tribal issues. Lawrence survives mostly on the ads bought by businesses in towns near reservations. He's currently involved in a lawsuit over the arrest of a reporter sent to cover a regular meeting of the Minnesota Chippewa Tribe executive committee.
"Orders went to have him arrested, and he was removed from the meeting - normally an open meeting. He was hauled 30 miles to the Mille Lacs County jail, and charged with trespass," Lawrence says….
Bill Lawrence says his paper has been banned in many Minnesota tribal-owned casinos, and businesses who advertise in his paper have been pressured by the Red Lake tribal government.
"Advertisers in the Bemidji area were told - if they advertised any more in our paper, they wouldn't be able to deliver their products to the reservation. The reservation would not buy their products. And it's going on right today," says Lawrence.
Red Lake Tribal Chairman Bobby Whitefeather says he does not ban any legitimate publication on the reservation.
"We don't even recognize that publication as a newspaper," says Whitefeather. When asked why, he responds, "because it is not objective."
Imagine that kind of censorship power in the hands of somebody like Jessie Broder VanDyke.