June 30, 2003
The
Honorable J. Dennis Hastert,
Speaker of the House
Cannon House Office Building
Room 235
Washington, D.C. 20515
RE: H.R. 2242 and S. 578, Tribal Government Amendments to the
Homeland Security Act of 2002
Dear Speaker Hastert,
This letter serves a twofold purpose: 1) to fully explain our serious opposition to the above-described legislation; and 2) to question the intent and legislative conduct of the 4 Senate and currently 28 House sponsors of these bills.
Citizens Equal Rights Alliance (CERA) is a national organization of community education groups that monitor and seek to preserve Constitutional and civil rights for individuals on or near Indian reservations. We have affiliate organizations in at least 17 states, and have been nationally active since 1988. We are particularly active in AZ, CA, CT, ID, MN, NE, NM, NY, OR, SD, WA and WI.
CERA supports appropriate involvement of any U.S. citizen in matters of Homeland security as coordinated through local, county, state and federal law enforcement and public safety systems. No involvement in Homeland Security matters should, however, disrupt, pre-empt, remove or otherwise diminish the clear governance of local, county, state and federal government.
We call your attention to H. R. 2242, "Tribal Government Amendments to the Homeland Security Act of 2002," and its counterpart in the Senate, S. 578, with our concern about the general intent contained within all sections of this legislation; but most frightening to American citizens is language at Section 13, which states:
"SEC. 13. CONGRESSIONAL AFFIRMATION AND DECLARATION OF TRIBAL GOVERNMENT AUTHORITIES. (a) IN GENERAL- For the purpose of this Act, Congress affirms and declares that the inherent sovereign authority of an Indian tribal government includes the authority to enforce and adjudicate violations of applicable criminal, civil, and regulatory laws committed by any person on land under the jurisdiction of the Indian tribal government, except as expressly and clearly limited by--(1) a treaty between the United States and an Indian tribe; or (2) an Act of Congress. (b) SCOPE- The authority of an Indian tribal government described in subsection (a) shall-- (1) be concurrent with the authority of the United States; and (2) extend to--(A) all places and persons within the Indian country (as defined in section 1151 of title 18, United States Code) under the concurrent jurisdiction of the United States and the Indian tribal government; and (B) any person, activity, or event having sufficient contacts with that land, or with a member of the Indian tribal government, to ensure protection of due process rights." [Emphasis added]
Quite frankly, Speaker Hastert, the net effect of Section 13 above if passed, removes the protections of state and local government provided by our U.S. Constitution and substitutes an expanded form of the Indian Reorganization Act of 1934—tribal government—to be foisted upon citizens by the elected officials sponsoring H.R. 2242 and S. 578. These bills directly impact over 400,000 citizens who lawfully own fee-patent property within original or former exterior boundaries of Indian reservations, and/or who live or work within exterior boundaries of reservations but are not enrolled tribal members. The bills will impact millions of other citizens who may have "sufficient contacts" with a reservation or "tribal member." The bills also affect all entities "doing business" with a tribe, "any person, event," and many millions of unsuspecting Americans who may intentionally or accidentally travel through an Indian reservation. As crafted, the intentional expansion of tribal authority over American citizens is nearly limitless.
Other sections of these bills would give tribal governments authority equal to states under the Homeland Security Act of 2002 without the safeguards of either our federal or state constitutions.
If enacted, HR2242/S578 would allow tribal governments to define what constitutes the "purpose" being served, what constitutes a "threat" to homeland security, and renders ambiguous, the term "homeland." Would tribes be protecting America's homeland or their tribal "homeland?" Any person at odds with a tribal government or having fallen out of favor with a tribal government could be at serious personal risk should this egregious legislation pass.
We believe that the sponsoring of H.R.2242/S.578 is a thinly veiled attempt to institute tribal sovereignty in an effort to force American citizens to lose the protection of their Constitutional and civil governments and submit to the Indian Reorganization Act of 1934. Such conduct rises to levels of questionable legislative competence and creates a clear breach of public trust.
Forcing American citizens to submit to this extreme affirmative action emanating from the Indian Reorganization Act of 1934, by substituting tribal governments for their traditional American government, is unconscionable. Such an act would immediately deny American citizens who are not enrolled members of a tribe the right to participate or vote in an Indian tribal government that governs them. These bills directly contradict Art. IV, Sec. 4 of the Constitution guaranteeing a republican form of state government to all citizens and violate the Equal Protection Clause of the Fourteenth Amendment.
Legislation that denies application of the U.S. Constitution within the territorial boundaries of the United States will surely foment conflict among American citizens. After all, it is conflicts like this that has taken our military to Kosovo, Bosnia, Afghanistan and Iraq. To further balkanize our government with federally sanctioned apartheid under the banner of Homeland Security would no doubt lead to even greater tension between American citizens.
Section 13 of S. 578/H.R.2242 contains language that "limits" the power of Section 13 by including two exceptions. Section 13 is expressly and clearly limited by: (1) a treaty between the United States and an Indian tribe; or (2) an Act of Congress." However, Treaties enacted in the 1700s and 1800s never contemplated the day when Indian tribes would have the sole territorial power to tax, regulate or otherwise govern settlers or other American citizens. Treaties do not address these issues, and therefore entirely lack "express limitations." Likewise, no Congressional legislation has ever condoned tribal authority exerting full and total jurisdiction or governance of people who are not Indians. The "express and clear" limitations of Section 13 are a complete ruse. To the contrary, the lack of any expressed "limitations" in treaties or legislation provides no limitations. Section 13 does NOT include the clear and express limitations of "rulings of the U.S. Supreme Court and its subordinate federal and state courts" generally constraining tribal authority to matters of self-determination or cultural integrity over its members and properties. We believe this omission is intentional.
CERA has tracked with concern, the political forces of the National Congress of American Indians (NCAI) and Native American Rights Fund (NARF), especially their "Sovereignty Protection Initiatives" targeted to undo many recent U.S. Supreme Court (USSC) rulings they dislike. USSC rulings have generally and appropriately limited tribal authority to the internal affairs of enrolled members and tribal properties.
HR2242/S578 ignore and simultaneously challenge authority of the USSC and lower courts of our judicial system that protects people who are not Indians from tribal authority. The bills attempt to strike down many Supreme Court rulings that limit tribal authority to its members and properties. Examples of cases to be Congressionally overruled by Section 13 of these bills include but are not limited to: Oliphant v. Suquamish Tribes-1978 (Tribes have no inherent authority over criminal conduct of non-members); Montana v. United States-1981 (tribes lack civil authority unless by consensual agreement to govern non-members or unless the tribe can prove it must have jurisdiction over a non-member to protect self-governing status); Atkinson v. Shirley-2001, (a tribe may not tax a non-member); and, Nevada v. Hicks-2001 (a state's jurisdiction does not end at a reservation border; reservations are part of a state's territory).
H.R. 2242 and S. 578 place every American citizen in peril of becoming resident aliens subjugated to tribal governance at the hands of a few misguided elected officials in the House and Senate. Removing Constitutional guarantees from a selected set of American citizens and subjecting them to government by another entity is unprecedented in the history of this nation. A clear and resounding message needs to be sent to all federal elected officials that reminds those who would facilitate federal Indian policy, that they may not support Indian authority so as to deprive or harm the individual constitutional rights of other American citizens.
We ask that you share our concerns with your colleagues, and provide us with any reassurance that you can that:
1) The majority of Congressmen will oppose H.R. 2242 and its counterpart in the Senate, S. 578;
2) Citizens who are not enrolled tribal members will never be unwillingly disenfranchised by federal Indian policy legislation or federal policies that force submission to tribal authorities; and
3) CERA's Indian policy experts, as well as our knowledgeable legal counsel, may be provided opportunity to testify on behalf of the millions of citizens who will be impacted by this legislation.
Clearly stated, the enactment into law of H.R. 2242 and S. 578 would create a constitutional separation of powers crisis between Congress and the United States Supreme Court. We thank you for your attention to this matter.
Sincerely,
CITIZENS EQUAL RIGHTS ALLIANCE (CERA)
Elaine
D. Willman
Chair
P.O.
1280
Toppenish, WA 98948
Phone: 509-865-6225 Fax: 509-865-7409 Email: toppin@aol.com
Website: http://www.citizensalliance.org
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