Testimony Concerning S. 1691 "The American Indian Equal Justice Act"

By William J. Lawrence, J.D.
Publisher of the Native American Press/Ojibwe News, Bemidji, MN

Member of The Red Lake Band of Chippewa Indians, Red Lake, MN

Before The Committee On Indian Affairs, United States Senate concerning S. 1691 “The American Indian Equal Justice Act”

Presented On April 7, 1998 At The Committee Hearing Held In Seattle, WA

Mr. Chairman, members of the Committee, good afternoon. My name is Bill Lawrence. I am an enrolled member of the Red Lake Band of Chippewa Indians in northern Minnesota. I am here in Seattle on my own time and at my own expense. I am not on any federal or tribal payroll.
I have worked 30 years in Indian affairs at the tribal, state, federal and private levels. For the past 10 years I have been the owner and publisher of the Native American Press/Ojibwe News, a weekly newspaper published in Bemidji, Minnesota.
The greatest injustice the federal government has imposed on Indian people during the 20th century is to make us citizens, but deny us most of the basic rights of citizenship. In 1968, Congress recognized this injustice and enacted the Indian Civil Rights Act. But the U.S. Supreme Court in the poorly considered Santa Clara v. Martinez decision ruled, in effect, that it is up to each tribal government to decide if and to what extent reservation Indians have any civil rights.
S. 1691 would, among other things, correct this injustice by amending the Indian Civil Rights Act so that we can hold tribal governments accountable when they deny us our rights.
Democracy is not simply the existence of free and fair elections, which I would argue often do not exist in tribal elections. Democracy is also defined by limiting the power of the government by such things as the rule of law, separation of powers, checks on the power of each branch of government, equality under the law, impartial courts, due process, and protection of the basic liberties of speech, assembly, press, and property. These do not exist on Indian reservations.
A given tribal government may claim these protections exist, but closer analysis usually reveals that claim to be a charade. And where one tribal government may extend some rights to its citizens, the next regime may not be so kind and can instantly reverse or ignore any tribal law or tribal constitutional protection, in the name of self-determination, and with the defense of sovereign immunity.
James Madison, a founding father and signer of the U.S. Constitution, said that government with no separation of powers and no checks and balances is the very definition of tyranny. That is what we have on America’s Indian reservations.
Tribal government opposition to a free press in Indian Country is very strong. Over half of Minnesota’s tribal governments do not allow the Native American Press/Ojibwe News to be sold on their reservations, and tribal interests have harassed and attempted to intimidate our advertisers and retail outlets. The paper has been confiscated from newsstands on numerous of occasions.
We are currently in state court fighting charges of trespass against one of our reporters for attending a meeting of the Minnesota Chippewa Tribe at a casino on the Mille Lacs reservation. He was arrested, handcuffed, and put in jail until the meeting they did not want him reporting on was adjourned. The state recognizes and enforces tribal police actions such as this.
Tribal sovereign immunity gives Indian people less rights and more government corruption, unaccountability, discord, and abuse of power. With the Indian Gaming Regulatory Act, which has overlaid a multi-billion dollar cash industry on top of an unaccountable government, the abuse of power has taken on new ferocity.
Federal Reserve Chairman Alan Greenspan said recently, “The guiding mechanism of a free market economy … is a bill of rights, enforced by an impartial judiciary.” There can be no denying that the lack of civil rights, the lack of legitimate courts, and the lack of government accountability is the single biggest reason there is so little economic activity on America’s reservations.
I first exposed the abuses of tribal court in 1972 in a law review article. Even after the U.S. Commission of Civil Rights put the BIA on notice of these abuses, the BIA’s only response was to increase funding to the tribal court. Since then I have personally been the victim of the Red Lake Tribal Council’s use of the sovereign immunity defense on five occasions.
On four separate occasions I have tried to get tribal financial statements which, according to our Constitution, are supposed to be available to tribal members. Tribal officials would order hearings to be postponed seconds before they were scheduled to occur, switch judges without notice, deny a right to a jury, change from a scheduled pre-trial hearing to a full trial without notice, deny an opportunity to call witnesses, and come to the first day of trial with a typed decision already in hand. Needless to say, I was denied my right to see tribal financial records.
In 1994, three tribal members asked me to represent them in Red Lake tribal court in an election dispute. Despite my legal background and eligibility in every way, I was denied a license to represent people in my own tribal court. They were afraid I would take cases against the council for violating people’s rights.
The 1990 U. S. Civil Rights Commission Report was published without one word about the abuses in the Red Lake courts, in spite of the fact that their investigation resulted in a 31-page description of civil rights problems at Red Lake. They left it out of the final report because the Red Lake government didn’t want it made public.
Former Washington Congressman Lloyd Meeds wrote a well-thought-out dissent to the 1977 American Indian Policy Review Commission Final Report, in which he said:

“If Indian governments are to exercise governmental powers as licensees of the United States, it is imperative that they be fully answerable for the improper exercise of those powers. Tribal sovereign immunity should … not be allowed to interfere with Federal court enforcement of federally protected civil rights.”

And a 1989 report of the Senate Select Committee on Indian Affairs made the following accurate observation:

“Since Congress has the ultimate responsibility for federal Indian policy, we in the Senate and House must accept the blame for failing to adequately oversee and reform Indian affairs. Rather than becoming actively engaged in Indian issues, Congress has demonstrated an attitude of benign neglect. …[B]y allowing tribal officials to handle hundreds of millions in federal funds without stringent criminal laws or adequate enforcement, Congress has left the American Indian people vulnerable to corruption.”

Let it be said right now that sovereign immunity has nothing to do with Indian culture or tradition. It is a concept that developed in the Roman empire and was used by European monarchs to protect them from challenge or criticism. Tribal sovereign immunity has essentially told a generation of tribal leaders that once they are in office they are above the law and can do whatever they please. The only culture that tribal sovereign immunity is protecting is a culture of corruption, denial of rights, and unaccountability.
In closing, I would like to quote a great American, the late Dr. Martin Luther King. He said, “Injustice anywhere is a threat to justice everywhere.”