Dying in Indian Country

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   TRIBAL LEGAL JURISDICTION OVER

NON-MEMBERS:

        We understand the difficulties many tribal governments have with maintaining law and order when they have legal jurisdiction over only part of the population. However, the United States Constitution guarantees all citizens a republican form of government. US Citizens are guaranteed due process, separation of powers, the provision of indigent defense counsel, jury pools and appellate and habeas corpus relief."  


Does that guarantee hold even within Reservation Boundaries?

Jurisdiction over NON-MEMBER INDIANS:

(Enrolled in a Native American tribe, but NOT of the tribe on who's

reservation they have been arrested.)

In 1988, in the case of Greywater v. Joshua, the 8th circuit court of appeals held that tribal criminal jurisdiction did not include non-member Indians.
The U.S. Supreme Court ruled in a case called Duro v. Reina that Tribes do not have the power to try non-member Indians for criminal offenses. Although the court hinted that there are constitutional reasons for this concerning the rights of individuals, it did not make its ruling on a constitutional basis.
 

Consequently, soon after the ruling Senator Daniel Inouye, D-Hawaii, attached a one sentence amendment to a defense appropriations bill temporarily overriding the Supreme Court's decision for one year. The next year, Senator Inouye, who chairs the Senate Committee on Indian Affairs, managed to have Congress pass a bill permanently overriding this ruling. This effectively subjects non-member Indians to the jurisdiction of the Tribes because Congress has almost unlimited power over Indian Affairs.

However, Congress cannot pass a law that violates the constitution. If the Supreme Court, in the Duro case had based its ruling on the constitutional rights of the non-member Indian, Congress could not overrule this decision.   Thus, it appears that the only remedy left to non-member Indians is to claim in court that tribal criminal jurisdiction over them is unconstitutional, regardless what Congress says.


Jurisdiction over NON-INDIANS:
(NOT enrolled in any tribe, but arrested on a reservation.)
Federal Court Judge Jim Randall was quoted in "Indian Country Today", February 29, 1996 as saying, "Why are we tolerating segregating out the American Indians by race and allowing them to maintain a parallel court system and further, subjecting non-Indians to it? We do not have African-American courts, Hispanic courts, Chinese courts. This is red apartheid. This entire issue of sovereignty rests on red apartheid"

In Oliphant v. Suquamish Indian Tribe, (1978), the Supreme Court rules that criminal jurisdiction over non-Indians would be inconsistent with the Status of Tribes as dependent sovereigns.
In Brendale v. CT&B Yakima, (1989), The U.S. Supreme Court held that hunting on fee land was not a "serious impact" that "imperils tribal political integrity", etc., to warrant an exception to the general rule: tribal government does not have authority over nonmembers or non-tribal land. Although there have been many rulings all the way up to the Supreme Court which state that tribal governments do not have jurisdiction over non-member, many tribal governments continue to push for jurisdiction. Tribal entities have also attempted to obtain jurisdiction through legislation, such as the 2003 S. 578, sponsored by Senator Inouye, D-Ha, and innocently referred to as an amendment to the Home Security Act. (sister bill H. 2242)
Off the reservation, everyone has a voice in the city and state government. They have a part in electing the representatives to serve them, therefore, have a voice in the laws that govern their private property.
However, when you live within the exterior boundaries of an Indian reservation, non-members cannot elect a representative, and do not have a voice in the laws that govern them on the reservation. To suggest taxation without allowing representation is unjust and something I hope would not be tolerated on American soil for any length of time, reservation or no reservation. It's been said :

          1. If a person doesn't like it, they shouldn't have moved onto a reservation in the first place.
          2. When you are traveling, you submit to the laws of whichever community you are in even though you have no vote or representation there. It is the same situation for those stepping within the boundaries of a reservation.

        Response:

        1. Moving onto a reservation in the first place:
          1. There are some families living within reservation boundaries that have homesteaded there from time before the Reservation was established. At that time, tribal jurisdiction wasn't an issue.
          2. For others, the federal government opened Reservation land up to homesteading at the turn of the century. Many times it was advertised as a "former" reservation. It was the intention of Congress at the time to dis-establish the reservations. Tribal jurisdiction still wasn't an issue. People were not aware at that time that the home they built and land they nurtured for their children would one day struggle with these issues.
          3. Many people today are unaware of the laws when they buy land within the boundaries of a reservation. They have no idea of the legal ramifications of living on or near a reservation.
          4. Others, like some residents of Ledyard, Connecticut, found themselves inside the boundaries of a Reservation after the boundaries were suddenly expanded. (Read "Without Reservation" by Jeff Benedict). Did anyone know whey they purchased their home ten or fifteen years prior that this could happen?

        2.  Legal jurisdiction while traveling:

            1. It is true that we need to and expect to submit to local jurisdiction wherever we travel. However, when a person has a second residence in a foreign country, or has a second home at the lake, they still have a voice in the laws governing their primary residence. They can still vote at their primary residence. 
            2. If they choose to become residents of the foreign country or make their second home a primary residence, they can do that. When they do so, they obtain the right to vote at the new residence. 

        However, when your primary home is within the exterior boundaries of an Indian Reservation, (and remember, some families lived on the reservation long before tribal jurisdiction became an issue) you don't have these choices. You are not allowed to vote in the laws that govern you. Despite that this is a country where it is assumed people may move freely, when you buy property within the boundaries of a reservation, property that was opened to homesteading by the federal government, you don't have the option or becoming a resident and voting, although some tribal governments are now attempting to tax and regulate non-members. President Clinton said in his 1998 State of the Union message "discrimination against any American, is un-American".

        One last point rarely brought up is the economic benefit non-member property ownership has had on many reservations. Some of the most poverty stricken reservations are those that are closed to non-member property ownership. The truth is, non-members spend money within the Reservations. If Reservations desire to become less dependent on Federal dollars, the money has to come from somewhere. Non-members are good for the economy.


        The bottom line is that the reservation system was a destructive attempt from the start. Among many other reasons, it is impossible to have 500 "nations" within one nation, with checkerboard jurisdictions and laws. A system of corporations, rather than governments, would preserve the constitutional rights or all US citizens, tribal members as well as non-members, while at the same time retaining all the assets of the tribe under their own control. Tribal members would be stockholders in their own corporation, making decisions about how the assets are maintained, while at the same time they would be citizens and voters in the county and state governments. There would be no checkerboard legal system, tribal members would enjoy full constitutional rights, and still have full control over their natural resources.

        ©1997, 1998 - 2008 copyright - All Rights Reserved


Home  Roland Morris Senate Committee Testimony      Drug Store Racism      

Raising Racism     Roland J. Morris's Story     Standing Up to Be Counted

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