U.S. Civil Rights Commissioner Allen's statement on Indian Civil Rights

	reproduced with permission, from the Native American Press/Ojibwe News July 30, 2004


	U.S. Civil Rights Commissioner Allen's statement

U.S. Civil Rights Commissioner Allen's statement on Indian Civil Rights abuses is still valid after 13 years.

The long history of Indians being deprived of their civil rights is as shameful as was the taking of their lands. The shame however now falls upon the shoulders of their own tribal governments rather than on the mainstream government. Tribal Sovereignty is once again the culprit. It is this concept that allows the tribal court free reign.

Deprivation of Indian Civil Rights has been at issue for a long time--indeed as long as the history of Indian/White relations, commencing with the taking of their land, the subjugation of tribes, the institution of the reservation system and the attempted enculturation of the people. Much time and money has been expended to redress the issue but Indians still stand in limbo in regard to their civil rights protections.

This point is amply demonstrated in a document entitled “A Statement on the Report of the U.S. Commission on Civil Rights—Indian Civil Rights Act.” William Allen, a professor of political science at Michigan State University, wrote the article in 1991 to coincide with the publication of the Commission Report. He was and continues to be a member of the US Civil Rights Commission; he served as Chair of the Indian Civil Rights Act Commission in 1988-89. His Statement disapproves of the final report of the Commission.

“ . . . I cannot concur in a report that claimed fewer than ninety seconds of substantive Commission deliberation after more than six years study and six-hundred thousand dollars of resources invested in it. The report is far briefer than such an extensive record would seem to justify. Furthermore, the direction of its recommendations. . . is to infuse the federal government even deeper into custodial care of Indians, while the gravamen [essential part] of our findings is that that is the very source of most of the prob-lems we uncovered.” (page 1-Allenʼs Statement. Subsequent references will include only an indication of the page number.) The study began in 1986 and the final report, consisting of a mere 100 pages, was published in 1991.

Mr. Allen's statement of findings and recommendations not included in the original report are both valuable and insightful. He bluntly states that there is no basis for the federal government's position that it has had “plenary [absolute] power” over Indian tribes. To make such an assertion is to violate the constitution of the United States. The basis for the U.S. government's position lies in what Allen describes as the “fiction” of “government to government relations,” i.e. tribal sovereignty. (p.2) Mr. Allen points out that the tribes are “not in fact independent and sovereign.” (p.2)

One definition of the criteria for tribal sovereignty demands that tribes be governed by their own laws, must possess the absolute power of war and peace, and be in possession of “inviolable territory and sovereignty.” Obviously few tribes in the historic, precedent-setting past possessed all three elements and virtually none today do.

In Endnotes to the article, Allen delineates a long history of the confusion that has evolved over the conflicting governmental position concerning the administration of Indian policy, that is the premise that Indian tribes needed to be taken care of (the guardian to ward relationship) while at the same time, they should be considered “independent sovereignties.” Is it any wonder that there has been such a mishmash of Federal Indian policy when the governmental administration has been guided by the above inane mindset?

Allen's second finding is: The federal government “has failed to provide for Indians living on reservations guarantees of those fundamental rights it is obliged to secure for all U.S. citizens.” (p.2) This, he states, is the result of the passage of the Indian Civil Rights Act (ICRA) of 1968 and leads him to the conclusion that the ICRA should be repealed. (p.5)

The Act has been a failure in securing Indian rights because the Bill of Rights does not apply on the reservations because of the myth of Tribal Sovereignty. In effect, the ICRA subjects Indians who are, first of all, U.S. citizens, “to the indeterminate control of tribal governments without recourse to federal courts [and] thereby fails to provide the just constitutional claims for . . . all citizen . . ..” (p.3)

To support the position, Allen points out “Not one federal dollar has been spent on the enforcement of the fundamental civil rights of American citizens domiciled on reservations since the 1978 Supreme Court decision, Santa Clara Pueblo v. Martinez.” (p.2 This decision effectively emasculated the ICRA, leaving Indians with only what little protection the writ of habeas corpus offers. Habeas corpus simply demands that one be informed as to why s/he has been incarcerated.)

Based on his experience as a Civil Rights Commissioner, attending meetings in five states, listening to testimony from 178 persons including “private citizens who sought recourse to the Commission to complain of tribal government abuses of their civil rights,” (p.10), he suggests the following: “Congress would do better to replace the ICRA with legislation providing for the enforcement of the civil and constitutional rights Indians enjoy by virtue of their citizenship in the United States.” (p.6)

His conclusion comes from evidence presented that ICRA enforcement by tribes is spotty and in general not of an acceptable standard. The reasons for the unacceptable outcome are: claims of sovereign immunity, insufficient funding of the tribal court system, the Secretary of the Interior's failure to use the appropriate section of Public Law 93-638 to enforce the ICRA.

The effect of this has been: allegations of illegal searches and seizures, denial of right to counsel, ex parte hearings, denial or restriction of right to jury trial, due process and equal protections violations and cruel and unusual punishments. (p.3,4)

While Allen's statement is comprehensive, drawing on a treasure lode of accumulated historical background, the Commission's Report is a mere 100 pages. The Commission seems to have failed in its attempt to promote and secure civil rights for American Indians. After spending six years of investigation, an expenditure of $600,000. and numerous site visits, the Commission Report does not even meet with the approval of its Commissioners.

In a recent correspondence with Mr. Allen he stated “We have not yet seen the kinds of changes that I envisioned, but I take inspiration from the fact that many persons have found the statement over the course of the last 13 years and looked to it for guidance in dealing with these difficult issues.”

An interesting instance of the Commission's lapses or inadequacies is associated with a staff visit to Red Lake Reservation. We've reviewed a sizable document (47 pages in length, almost equal to half the length of the final Commission Report) that was sent to Chairman Roger Jourdain in May 1990.

Over a signature from General Counsel William J. Howard, the cover letter from the US Commission on Civil Rights indicates “This material is being forwarded to you in order to give your tribe an opportunity to file a response.” The material was originally part of a draft report but was never included in the final version.

The draft contained multiple instances of Tribal Court abuses. The chronicle begins in 1972 when the Bureau of Indian Affairs (BIA) was initially notified of alleged problems at the Red Lake Court of Offenses with the intent they should to provide constructive remedy, which they did not do.

By 1977 the Department of Justice (DOJ) was preparing to sue the Red Lake Tribe because it had decreed that attorneys must be members of the Tribe and understand Chippewa in order to appear as counsel in the tribal court.

The Tribe defended its position on the grounds that “outside non-Indian, professional attorneys frequently disrupt Tribal Court proceedings and attempt to bamboozle lay Indian judges, prosecutors, clerks, jurors and witnesses.” (p.25 of the Commission's Red Lake Draft)

This practice led to frequent litigation based on denial of the right to counsel. The District Court for the District of Minnesota proclaimed in Good v.Graves. “The evidence in this case leads this court to the inescapable conclusion that the rights guaranteed petitioners by the Indian Civil Rights Act were trampled upon by the officials of the Red Lake Court of Indian Offenses.” (p.29)

The Tribe ultimately acknowledged to the Commission “there were today no Red Lake members who are professional attorneys” and that “defendants must be represented by lay counsel.” (p.35,36)

The BIA attempted to rectify this situation and other problems by issuing a memo, November 12, 1985, by Hazel Elbert, Acting Deputy Assistant Attorney for Indian Affairs, to Tribal Chairman Jourdain. It stated, in part: “It has come to our attention that courts of Indian offenses may be violating mandates set forth in the Constitution of the United States; The Indian Civil Rights Act. . ..” The memo listed nine items, which required Court compliance. They included such items as removal of records was unlawful, court employees are prohibited from taking fine money, Court personnel must comply with Freedom of Information Act, indigent defendants must have a court appointed attorney, criminal defendants had the right to jury trial, professional attorneys must be allowed to practice before the Court of Indian Offenses. Most importantly, the memo dictated “The Indian Civil Rights Act and the Constitution of the United States guarantee that individuals appearing before courts of Indian Offenses will be afforded all of those rights guaranteed by the Constitution to all citizens of the United States in any federal court.” (p.31,32)

Chairman Jourdain responded almost immediately saying, “You are hereby directed to withdraw your order to BIA personnel enforcing the Hazel Elbert memorandum.” He indicated that if BIA officials at Red Lake attempted to enforce the directive, the Tribal Council would “order the removal of all individuals who enforce said memorandum.” (p.32)

Other Red Lake shenanigans include at least two cases barring the news media from the reservation and the confiscation of Court records to avoid scrutiny. In 1985 Senator Boschwitz and Representative Stangeland requested an investigation by the U.S. Comptroller General of the Red Lake system. The request was evidently not answered.

The situation continued unabated and uncensored. In 1987 attorney Richard Meshbesher was hired as counsel but was informed, “that he will not be allowed to practice in the Red Lake Court of Indian Offenses until and unless he is licensed by the Red Lake Tribe.” When Mr. Meshbesher inquired of the Tribal Secretary about information and procedures for obtaining a license he was told “there are no procedures available by which he could become licensed to practice before the Red Lake Court of Indian Offenses, and further, that the Red Lake Indian Tribe has no plan or intention of developing or putting in place procedures by which he, or any other attorney, could become licensed to practice. . . .”

This made me laugh out loud. I thought I might have slipped into the reading of an Alice in Wonderland episode instead of the Confidential Report of the U.S. Civil Rights Commission.

If the Meshbesher episode is not curious enough, we have the BIA relinquishing in 1987 any and all control over “the administration of justice on the Red Lake Reservation by permitting the Tribe to establish its own Court under a 93-638 contract. (p.37,38)

When questioned about the appropriateness of turning the Court over to the Tribe, given the long history of abuses, the BIA stated “Our position is that we wish to get the tribe in a position of operating its court system as quickly as possible and begin working with the tribe to try to have a quality court system as soon as possible. . .” (p.44)

This action is unconscionable in light of the 1987 statement in federal court concerning Good v. Moran. “Plaintiffs' claim [violation of due process]. . .is an indictment of the Court of Indian Offenses on the Red Lake Indian Reservation. It is a claim which charges that the Red Lake Court of Indian Offenses denies the fundamental rights provided under the [ICRA] to its own people more often and with greater fervor than it protects them. . . . [and] charges that the Red Lake Court of Indian Offenses has established de facto the denial of fundamental rights as the norm rather than the exception in the administration of justice on the Reservation. . . . The claim raises great concern in this court and should raise even greater concern in the court of Indian Offenses on the Red Lake Reservation.” (p.39)This material indicts the Red Lake Court system and is most likely indicative of conditions throughout the reservation system.

The obvious comes to mind. We recently reported on the Red Lake Court Evaluation done by Mary Pearson. Her observations bear out the fact that there has not been significant improvement in the situation at Red Lake since the time of the Civil Right Act investigation. In brief, she stated the Red Lake Court is seriously deficient in most every aspect. Personnel are in serious need of profes-sional training, and violations of ICRA continue to occur.

Paradoxically, federal funding for tribal courts commits the tribe to compliance with ICRA. Since any federal monies are accompanied by the condition that tribes abide by all federal statutes, including the ICRA, we can only speculate why the Red Lake Tribal Council, in the absence of self-help, has not been compelled by the feds to initiate and accomplish a serious over-haul of the court system.

Whether the new Red Lake Tribal Council will pursue reform in any meaningful way is an unanswered question. It is a distinct possibility that unless Red Lake makes substantive progress toward reform, the BIA could retrocede the contract, meaning the feds could step in and administer the court, hire judges, etc. The Band would thus lose all its authority to administer its own tribal justice system.

Note: the subject matter of Allen's Statement contained other insights and commentary that we will return to in a subsequent commentary.

A few other relevant articles & websites:

U.S. Commission in Civil Rights - homepage

A Quiet Crisis - Federal Funding and Unmet Needs in Indian Country [139-page .pdf file]
U.S. Commission on Civil Rights, July 2003

civilrights.org review of A Quiet Crisis

Historical Documents & Speeches: Civil Rights Act of 1964

International Indian Treaty Council - homepage

Leonard Peltier Defense Committee - Statement about FBI Involvements on Pine Ridge Reservation
August 4, 2004

Minneapolis-St. Paul News Coverage of Minority Communities
U.S. Commission on Civil Rights, December 2003 -- access through publications index

or by emailing the Civil Rights Commission at publications@usccr.gov

Minnesota Public Radio: A Short History of Indian Civil Rights
by Melanie Sommer - April 2001

Morris K. Udall - The American Indians and Civil Rights, speech at American University, October 4, 1965

New York Public Library - reference resources on Native Civil Rights

The Colonial Double Bind: Sovereignty and Civil Rights in Indian Country, Eric Cheyfitz, University of Pennsylvania Journal of Constitutinal Law, Vol. 5., no. 2 (2003)

Tribal Court Clearinghouse: Indian Civil Rights Act of 1968

2002 U.S. Commission on Civil Rights hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 107th Congress, April 11, 2002

www.virtual_library - Index of Native American Legal Resources on the Internet