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Internal Corruption Kills Sovereignty

“United States law creates a discriminatory system for administering justice in Native communities−−a system that allows criminals to act with impunity in Indian country, threatens the lives and violates the human rights of Native women and girls daily, and perpetuates an escalating cycle of violence in Native communities.”~ Indian Law Resource Center, “Ending Violence Against Native Women"

US Indian Civil Rights Act: What Is It & Why Was It Enacted

The Indian Civil Rights Act of 1968 was enacted by the United States Congress to afford the same civil rights protections afforded United States citizens, by way of the US Constitution, to tribal citizens.   

Modeled after the US Bill of Rights, it includes nearly all the same protections - such as freedom of speech, freedom to peacefully assemble, and the right to equal protection under the law - while omitting those federally protected rights that may directly interfere with tribal customs or sovereignty. 

Specifically, the ICRA did not contain the same provisions as they pertained to the separation of church and state as religion, as defined by individual tribal customs and traditions, were recognized as being integral components of the tribal council and court structures.   Additionally, since ancestry is the identifying component of tribal citizenship, prohibitions on discrimination based on race as detailed in the federal Bill of Rights were not included in the passage of the ICRA. 

One component that was also considered during hearings to pass the ICRA but has often been overshadowed by sovereignty concerns was to "protect individual Indians from arbitrary and unjust actions of tribal governments." (Santa Clara Puebla, 1978)


ICRA: All Those Rights And Only One Writ

The Indian Civil Rights Acts as written provides multiple federal protections for tribal citizens residing within reservation boundaries while minimizing interference with the tribal right to self-govern as established by federal treaties with the tribal nations. 

It’s within the attempt to maintain that fragile relationship of protecting the individual tribal citizen and the tribal sovereignty that Congress established the avenue of redress for charges of civil rights violations. 

SCOTUS has opined repeatedly over the years since passage of the ICRA that the only true allowable writ of review would be for those of habeas corpus, or unlawful detention by tribal authorities.  

Unfortunately, this established precedent has severely hampered the restorative justice needed on tribal reserves for violations of a non-custodial nature perpetrated by those meant to provide it in the first place: tribal councils and tribal courts. 

Moreover, as discussed during the hearing of Santa Clara Pueblo, the Indian Civil Rights Act was also enacted to protect tribal citizens from unjust actions from those very tribal governments, who by the definition of human nature alone are not incorruptible. 

The very fact that plenary authority over tribes has been legally established by Congress hundreds of times since the original treaty passings and yet has never been invoked to protect the civil rights of the very citizens who comprise those tribes is simply another example of the dualism exercised towards First Nation’s peoples by the federal government.


ICRA Versus Tribal Sovereignty

The rights afforded protection by the ICRA are intended to promote justice and a continued trust relationship amongst tribal nations and the federal government. Though tribal governments play a significant role in safeguarding these rights within their respective tribal communities, the United States Indian Civil Rights Act was also intended to provide a forum of redress for civil rights violations by the unjust actions of the tribal government itself. The federal government, through agencies like the Department of Justice and the Bureau of Indian Affairs, under the “Doctrine of Trust” legalese, is obligated to assist in the safety and security of tribes, within their role of guardianship.

However, as demonstrated in Santa Clara Pueblo v. Martizez, the highest federal court has continued to avoid interfering in ICRA cases by claiming tribes have provided their citizens with adequate forums to address non-custodial violations internally and without federal intervention. These forums only include tribal courts, tribal councils, tribal law enforcement, and tribal boards.  However, where is the individual tribal citizen able to find the protected right to redress when the redress is against those very forums that the federal government continues to hide behind? How does "protecting civil rights" only allow for reviews for writs of habeas corpus? Though many tribes do incorporate law enforcement personnel, actual detention facilities are not regularly utilized so the likelihood of a tribal citizen only being subjected to violations regarding unlawful detention (habeas corpus) are minimal, if not nearly non-existent. Add in the limitations placed by the multiple overlapping levels of federal, state, and tribal jurisdictions redress becomes a pipedream.

When it comes to jurisdiction, the federal government has a unique relationship with tribes. It recognizes tribal sovereignty, which means that tribes have their own self-governing authority. However, the federal government also has a responsibility to protect Native American tribes and their interests.This includes negotiating treaties, providing resources and services, and upholding trust obligations. It is a complex and important dynamic. Historically, the federal government, via the Supreme Court, has upheld treaty obligations and respected the inherent authority retained by tribes prior to colonization. However, within nearly every opinion rendered, there is a reference to the plenary authority of Congress which effectively renders tribal sovereignty an illusion to be taken away at whim by a simple legislative act.  The passage of the Major Crimes Act is a more than adequate display of this.  Yet, Congress has continually demonstrated that authority is only invoked when it benefits the federal government first, non-natives second, and tribal citizens never.

“United States law creates a discriminatory system for administering justice in Native communities−−a system that allows criminals to act with impunity in Indian country, threatens the lives and violates the human rights of Native women and girls daily, and perpetuates an escalating cycle of violence in Native communities.”~ Indian Law Resource Center, “Ending Violence Against Native Women

One of the dissenting opinions provided during Santa Clara Pueblo actually seems to acknowledge this always available but rarely utilized authority when discussing the determinations on whether ICRA expressly waived tribal sovereign immunity as it pertains to the civil rights protected within the Act. Justice White wrote “the fact that a statute is merely declarative and does not expressly provide for a cause of action to enforce its terms does not, of course, prevent a federal court from fashioning an effective equitable remedy." 

And yet, to date, a precedent has yet to be established that protects tribal citizens from the governmental structure presiding over them. Shocker. When has the United States government EVER done right by the Native Americans? Shoot - they JUST designated the original inhabitants of the United States as actual citizens in 1924.

Thirty years after they massacred hundreds of tribal members, to include women and children, at Wounded Knee. Sixty years before they finally closed the last United States Indian residential boarding school where they kidnapped, abused, and murdered our children. The one my mother attended.

Stopping Internal Erosion of Tribal Sovereignty

While case law has historically demonstrated a federal desire to protect the sovereignty as recognized by the hundreds of treaties passed in the late 1800’s, the tribal governments themselves have frequently been the entities to cause the most destruction to the idea of tribal self-sufficiency and self-governance. Left unobstructed via the federal court’s reluctance to interfere and limitations imposed by jurisdiction, what recourse is available to implement the intent behind the Indian Civil Rights Act (ICRA)?

One of the more recent cases providing a potential alternative avenue to address civil rights violations perpetrated by tribal officials on their constituents occurred in 1997, the United States v. Wadena. In this case, a tribal member was charged with conspiracy in violation of a federal criminal policy. Section 241 of the United States Code makes it illegal for two people to conspire to violate the constitutional rights of another person. Wadena having established a precedent for federal interference on non-custodial civil rights violations, and voting rights being a protected act included within ICRA, corruption within tribal governments could potentially be addressed utilizing this same precedent. 

For example, recently within the Sault Sainte Marie Tribe of Chippewa Indians, a special election was conducted to fill a vacant seat. The vacancy was a result of the resignation of a former official who had been pending removal for criminal offenses and civil offenses to include election fraud and tampering, as detailed by an internal investigation. Part of those illegal activities resulted in many of this individual’s supporters being elected to office via illegal means, such as illegal campaign activities and contributions. Their election to office occurred prior to the reveal of their illegal and unethical activities, so now that those individuals are in positions of power within the tribe and therefore a part of the self-governance process, individual tribal citizens have little recourse to address the issues that have been uncovered regarding this corruption. 

Exercising the sole remaining option available, the special election was held. Adhering to the codes and bylaws of the tribe’s constitution and ordinances, at the end of the election process, an overwhelming majority of voters selected their choice of candidate. Viewed as opposition by the sitting board, the illegally elected members of the Sault Tribe of Chippewa Indians Board of Directors, individuals who have been proven to have participated in violating their constituent's ICRA protected rights and violating our tribal constitution and bylaws, have since not only refused to honor the tribal member’s votes and seat the highest vote getter as required by our constitution - they have gone even further and have cancelled the election in it’s entirety and have left the largest unit in the tribal service area without full member representation on the board of directors for over a year. 

This is in clear violation of not only the Indian Civil Rights Act but also meets the standards necessary to be granted writ of certiorari by the federal judicial system, the Supreme Court of the United States. Additionally, this board has continued to act in their own best interests to the detriment of the tribe: misappropriation of federal dollars, retaliatory and discriminatory employment practices, abuse of office, and the icing on the cake – mail fraud.

It is a positive cornucopia of criminality and an abhorrent display of unethical behaviors by those meant to emulate it for the guardianship of the citizens who elected them. While the federal government has spent decades putting on a show of respect for tribal sovereignty and the right to self-governance, the very individuals tasked with implementing it within the boundaries of the Ojibwe reserve have done more to erode it in the past year than the previous two decades. 

Seven generations forward and seven generations back – that is the principle our tribe was built on and it’s past time we incorporate that ideology in a way that truly reflects Mino Bimaadiziwin.  Even if it takes federal interference to obtain it.  A’Ho.

Wahsay Geezhgo Kway

"Shining Sky Woman"

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