PART III: Are Native Americans Entitled to Civil Rights Protections? Senate Indian Committee Must Have Field Hearings Senator Barrasso.

The conclusion of Native American Activist Paul Johnson's treatise on the violations of civil rights in Indian Country.  Please check out the previous two posts:Part One and Part TWO   .  Thank you Paul for your excellent work on this critical issue infecting Indian Country

The selective nature of disenrollments illustrates the bias and discrimination that motivates these heinous actions. Tribes select entire extended families and target them for elimination. They place unfair standards only on those they wish to eliminate, with full knowledge that there are other tribal members who could not meet the same standard. Disenrollees are treated differently under the law than other tribal members, and this is what is meant by the violation of the right to equal protection under the law. Equal protection means not only that all people shall be treated equally in the enforcement of the law, but also that all people shall have equal access to the law. This right was intended specifically to prevent unfair or discriminatory actions by those enforcing the laws from preventing individuals from obtaining recourse or remedy.

Read the citation from the Fourteenth Amendment carefully. It doesn't say citizen; it says person. In Yick Wo v. Hopkins (1886) the Supreme Court ruled that:

“These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws. “

It doesn't apply to Indians though. Why does the Court deny the civil rights of Indians? Because Congress denies the Civil Rights of Indians. Why does Congress discriminate against Indians? The Supreme Court says that protecting the civil rights of Indians means interfering with the sovereignty of Tribes, but Tribes are domestic dependent sovereigns with lands held in trust by the Federal Government. Congress has plenary powers over Tribes. (OP: plenary power is a power that has been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power)

The politics that are being played by Congress and Tribes should not result in the violation of the civil rights of tribal members.

This attitude toward Indians is not new. America has a long and bloody history of mistreatment of native peoples. Nothing has changed except that now Tribes have gaming. Along with the gaming came wholesale corruption. The Federal Government allows the corruption as long as it is just Indians hurting other Indians, but there are other ramifications that have not been fully understood. The BIA now says disenrollees are not eligible for federal services or programs because they are not members of a Federally Recognized Tribe, and their internal policy states that disenrollees are not entitled to per-capita distribution.

The BIA does not inform disenrollees that they are taking these actions against them. They say that tribal law is controlling law for tribal members, but disenrollees are not tribal members. So without committing a crime or any transgression at all against the Federal Government, the BIA denies services, programs, and revenue sharing to those who are otherwise entitled and eligible. They do this without providing due process, and without equal protection of the law. There is no legal definition of disenrollee, and no federal regulation that tells the BIA that they have to stop seeing an Indian as an Indian just because a Tribe decided to harm a selective portion of their members.

Disenrollees can have their tribal membership terminated. It happens all the time these days; however, Tribes do not tell the Federal Government what to do. Why then is the BIA acting against disenrollees on the instruction of Tribes? It appears that the BIA and Tribes are working together to inflict harm and injury on innocent persons, and it is time for disenrollees to recognize that they are U.S. Citizens. In 1924 Congress granted all American Indians U.S. Citizenship, and if their tribal membership is terminated, for whatever reason, Indians revert to U.S. Citizens, and they are entitled to all the rights and protections of the U.S. Constitution and the Bill of Rights. In fact Indians are U.S. Citizens even when they are also Tribal Citizens, and can always assert their rights.

This fact has been lost in the disputes over membership and the BIA and Courts purposely avoid addressing civil rights violations. So far the BIA and the Courts have been able to narrow the scope of their decisions to frame disenrollment as internal tribal matters in which they have no jurisdiction and cannot interfere. They are able to do this because the disenrollees file their appeals and complaints against the Tribes. The Tribes are immune to lawsuits, and the BIA has no jurisdiction, and the cases are dismissed, or the appeals are lost.

The BIA should not disregard these rights and protections, and the BIA should not apply tribal law to those who are no longer tribal citizens. The problem is that disenrollees are so intent on regaining tribal membership that they forget that they are U.S. Citizens and allow the BIA to treat them as neither U.S. Citizens nor Tribal Citizens. To make matters worse the BIA gives deference to the Tribal Leaders who are hurting their own people no matter how corrupt the leaders are. The BIA says it is reasonable for them to give deference to Tribes even though this deference enables Tribes to violate their own Constitutions, Laws, Customs and Traditions.

The BIA addresses only matters involving tribal law and membership disputes and ignores any other arguments in appeals. The Courts rule that Tribes are sovereign and immune to lawsuits. Congress specifically left out provisions for enforcement of the ICRA. Disenrollees are painted into a corner, with no recourse except to claim their Rights. How else are they going to make any headway against a power structure that is completely discriminatory?

The BIA will never interfere and help disenrollees get reinstated. They have no rules, regulations, policies, procedures, court decisions or empowerment from Congress to reinstate disenrollees. Even if a Tribe's governing document gives the BIA this power, they will still try to weasel out of doing something for disenrollees. Instead of seeking reinstatement, disenrollees should tell the BIA that they are being denied due process and equal protection under the law. They should demand a hearing, and an opportunity to present evidence on their behalf with an independent judicial review.

This strategy will have either of two outcomes. It is possible that the BIA will rule that those disenrollees who assert their civil rights are still eligible for federal services and programs despite being disenrolled. Those disenrollees who obtain this ruling from the BIA will have proof that they are Indians, and that the Tribe was wrong in disenrolling them. This is a far better outcome than a decision not to interfere, and could lead to further action.

If the BIA rules that the agency cannot provide disenrollees a hearing or equal protection under the law, then the table is set for a suit against the BIA. The Court will then have an opportunity to hear the arguments and decide for all disenrollees whether or not they have civil rights. In might also mean that disenrollees can file complaints with the Department of Justice claiming civil rights violation by the Tribe against a U.S. Citizen with the support of a judicial decision that says that Tribes do not have the right to determine your eligibility for federal services and programs.

There is even a chance that the Court might rule that the BIA must change the internal policy that disenrollees are not entitled to per-capita revenue sharing. This is where the whole strategy has been pointing. Gaming Tribes have Revenue Allocation Plans with the BIA that state that Tribes must share revenue with Tribal members. There are federal court decisions (Short et al.v. United States, 1973) that state all Indians of a reservation are entitled to share revenue from reservation lands regardless of their tribal membership status. By asserting their claim to civil rights protections disenrollees might be able to remove the reason why the Tribe disenrolled in the first place. If Tribes cannot withhold per-capita from disenrollees they might not be so hasty to disenroll members. With the requirement for Tribal membership out of the picture, then the Tribe will have to share with disenrollees too or be in violation of their RAPs.

Can the BIA force Tribes to share revenue with disenrollees? That question won't be answered until some brave disenrollees assert their claim to civil rights protections. There is also the NIGC, and gaming Tribes must file Tribal Gaming Ordinances with the NIGC that state they will share revenue with tribal members. Along with the Tribal Gaming Ordinances comes a waiver of sovereign immunity due to the provisions of the IGRA. Gaming Tribes must sign such a waiver so that the NIGC can enforce the Indian Gaming Regulatory Act.

The alphabet soup gets a little crowded here, and before too much complexity drowns these actions in a slew of hearings and delays the best weapon that disenrollees have is to stand fast to their civil rights and see where the strategy leads. Most Tribes will probably reconsider their disenrollment decisions if it becomes apparent that the federal government will be forced to either investigate or act. No one knows if this strategy will work though. It hasn't been tried before. 

This is an opportunity to fight disenrollment actions and force the BIA, the DOI, the DOJ and perhaps even Congress to develop a policy that addresses the civil rights of Indians in a meaningful way. We won't know until we give this strategy a ride and test it out.