It May Take a Constitutional Amendment to Bring True Justice to Indian Country

By Ed Des Lauriers

By virtue of the Indian Citizenship Act of June 2, 1924, all Indians born in the United States are citizens of the United States, and citizens of the states they live in, even though they may live on a reservation. They can vote. They pay most local, state and federal taxes, including sales taxes. (They do not pay tax on land held in trust for them, or on income from that land.)

In 1961, a Constitutional Rights subcommittee of the Senate Committee on the Judiciary undertook a thorough investigation of the legal status of Indians and the problems they had exercising their constitutional rights in their dealings with federal, state and tribal governments. The work of the committee resulted in the passage of the Indian Civil Rights Act of 1968, a document patterned after the original Bill of Rights, which said that Indian tribes exercising their powers of self-government would be subject to many of the same constitutional limitations and restraints that are imposed on federal, state and local governments.
A noble effort that’s not working.

A Supreme Court decision in 1978 (Santa Clara Pueblo v. Martinez) pretty much rendered the Indian Civil Rights Act worthless. The court ruled that Indian tribal governments themselves could decide how and to what extent Indian civil rights would be applied. The result is that Indians today – our first Americans – are consistently denied constitutional protections of speech, press, and perhaps most importantly, the protections of a fair and just legal system.

“If you cannot afford a lawyer, one will NOT be appointed for you!”

Even the Civil Rights act of 1968 did not include the right to counsel except at the defendant’s “own expense”, but that is not the largest problem with the Indian in-justice system. The major problem is that there is no separation of powers on the reservation. Tribal leaders are the executive, legislative, and judicial branches of government all rolled into one. Not since the Feudal Lords our forefathers crossed the Atlantic to escape, has there been such tyranny in a system of government.

Due process is a different process in Indian country.

Generally, Indian citizens subject to the jurisdiction of tribal governments must first exhaust venues provided by tribal governments if they wish to enforce their equal protection guarantees in federal court. (And, as we’ve mentioned earlier, counsel is not provided except at defendant’s expense.) In a noteworthy case a few years ago, during the 2 year reign of Roger Jourdain on the Red Lake Reservation in northern Minnesota, his administration controlled a court that, according to Minneapolis Star and Tribune investigation, denied jury trials, jailed people for days without specifying charges, and denied prisoners the opportunity to post bail. Jourdain and his council actually managed to bar lawyers in the state of Minnesota who could qualify on that basis.

Civil rights seldom enter the courtroom in Indian Country.

In another case on the Red Lake reservation, a woman reported being…”kicked out of my house a week after my husband died.” She says her husband was long persecuted for his political beliefs which conflicted with tribal policies. She was at a probate hearing in a Red Lake Reservation courtroom when, she says, tribal police walked in with an order of exclusion signed by the chairman. She was escorted to the reservation border and told never to come back. She left behind her car and all her belongings. She says her civil rights were never considered.

What American would endorse racially-based courts?

Think of it: African-American Courts, Hispanic Courts, Hmong courts. A thoroughly un-American, un-constitutional concept you must agree. Yet, that’s exactly what we have in the Indian in-justice system. While we may think we are doing Indian peoples a favor, allowing the myth of Indian sovereignty to continue under the guise of preserving Indian independence, history and culture, we have created situation of almost complete dependence on government programs, and established a nightmarish and redundant tribal court system.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in the time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Amendment XIV

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, within its jurisdiction the equal protection of the laws.

While our non-Indian court system is not perfect, it at least attempts to afford us constitutional protections. Don’t we owe that much to our Indian Citizens? We tried, and failed to deliver that in 1968. Maybe it’s time to try again.

The 5th Amendment to the Constitution guarantees equal protection to citizens under the laws and regulations imposed by the federal government. The 14th Amendment guarantees equal protection to citizens under the laws and regulations imposed by state governments. But neither the 5th nor the 14th Amendments guarantee equal protection to citizens under the laws and regulations imposed by tribal governments. Instead, citizens subject to the jurisdiction of tribal governments must depend on the Indian Civil Rights Act of 1968 for equal protection guarantees.

We think it will take a constitutional amendment to fulfill the INTENT of the Indian Civil Rights Act of 1968.

The equal protection guarantees in the 1968 Act, while modeled after the U.S. Bill of Rights, is not coextensive with the Bill of Rights, and are not immediately enforceable in federal court. Generally, citizens subject to the jurisdiction of tribal governments must first exhaust venues provided by tribal governments if they wish to enforce their equal protection guarantees in federal court. Unfortunately, the separation of powers inherent in the U. S. Constitution is alien to the culture of tribal governments where the executive, legislative and judicial branches are inextricably connected. Therefore, citizens seeking to enforce equal protection guarantees afforded to them under the 1968 Act may , and usually are, subject to tribal government roadblocks which, because of the cost and delays are difficult, if not impossible, to overcome.

“The accumulation of all powers-legislative, executive, and judiciary in the same hands may justly be pronounced the very definition of tyranny.”

-James Madison

Therefore, CERA proposes passage of the 28th Amendment to the U.S. Constitution

Amendment XXVIII:

All persons (including natives and aboriginals) born or naturalized in the United States, (including territories, Indian reservations and trust lands,) and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No Indian tribe, band or community shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any Indian tribe, band or community deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And giving reservation Indians these rights would require no costly lawsuits or expensive attorneys. We should simply grant them the rights they deserve as American citizens.