In recognition of Indigenous People’s Day on October 14th, we are featuring an article from one of our community partners in lieu of the Executive Director Column. The views expressed in this opinion piece are those of the writer and do not reflect the positions of King County Bar Association.
As our country’s presidential candidates offer divergent promises to protect our constitutional freedoms, one segment of America remains categorically excluded from any such promises.
Be it the promise of life, liberty, or the pursuit of happiness, the original Peoples of this country have never been included in any of America’s promises.
Calling them “merciless Indian savages,” Thomas Jefferson excised America’s original Peoples from the central promise of the Declaration of Independence. As recently as 1978, the U.S. Supreme Court excluded the only Americans indigenous to the United States from the Bill of Rights’ universal promises.
Tribal citizens have never enjoyed America’s constitutional freedoms of speech, assembly, privacy, due process, equal protection, or belonging. Tribal citizens’ right to belong as Americans is not even protected by the Fourteenth Amendment. That right is conferred by federal statute, which Congress took nearly 150 years to pass.
It was not until 1924 when Congress passed the Indian Citizenship Act1, Public Law 68-175, granting American citizenship to “all noncitizen Indians born in the territorial limits of the United States.” Tribal citizens remain exempt from America’s central promise, though, and the deprivation of constitutional freedoms is dehumanizing and debilitating.
The country’s failure to universally venerate Indigenous humanity correlates to endemic rates of juvenile incarceration, reservation violence against women, missing and murdered Indigenous people, and suicide. Indigenous people in Washington suffer a suicide rate 34% higher than the general population2.
Yet nobody — I mean nobody — in a position of power today has promised to do anything to confront or rectify this inconvenient truth.
In 1896, Tribal citizens were not yet considered American citizens, the Supreme Court ruled them exempt from the Bill of Rights. Capturing the then prevailing federal sentiment and policy concerning America’s original Peoples, Theodore Roosevelt proclaimed ten years earlier: “I don’t go so far as to think that the only good Indians are the dead Indians, but I believe nine out of every ten are.” The Supreme Court’s ruling in Talton v. Mayes, 163 U.S. 376 (1896) contributed to an environment where American freedoms were not allowed or protected on Indian reservations.
In 1934, Congress passed the Indian Reorganization Act (IRA), which superimposed federal Indian constitutions and bylaws upon Tribal nations. As Nick Estes explains in Our History is Our Future, the IRA fostered “a winner-takes-all” system that “turned relatives against each other” and “broke down the family kinship unit that . . . was fundamental to decision making” in Indigenous societies. By the 1960s, Tribal civil rights violations became pervasive.
In 1965, the ACLU joined Tribal citizen groups in telling Congress about the rise of Tribal politicians who “suppress[ed] by threat of disenrollment, any dissenting views.” The ACLU called disenrollment “one of the most compelling defects in Indian law.” Seeking to correct the defects created by the U.S., Congress amended the Civil Rights Act of 1965 with the Indian Civil Rights Act (ICRA) in 1968. Commonly known as the Indian Bill of Rights, ICRA guaranteed Tribal citizens freedoms similar to those promised by the U.S. Constitution, including the right to belong.
Ten years later, however, U.S. Supreme Court Justice Thurgood Marshall gutted ICRA. In Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), he ruled that ICRA did not allow Tribal citizens to bring civil rights claims against Tribal nations in federal court, with the exception of habeas corpus. Conference notes reveal that the Burger Court’s truest intention was to stem the surge of ICRA suits filed in federal court. See e.g. Dodge v. Nakai, 298 F.Supp 17 (D.Ariz. 1969).
While expressly protecting Tribal sovereignty, Santa Clara Pueblo sanctioned discriminatory treatment of Tribal citizens and emboldened Tribal politicians to violate their people’s most basic rights with impunity. Tribal citizens have since been shunned by federal judges, as well as Tribal and state court judges, sending a message to Indigenous people that they do not matter.
Making a dire situation worse, the futility of Tribal civil rights advocacy caused by Santa Clara Pueblo results in the denial of legal representation. Lawyers are deterred from even trying to help, fearing there is no remedy available to Tribal citizens. Indeed, a study3 conducted by our state’s Supreme Court found that nine out of ten Indigenous persons in Washington do not receive needed civil legal assistance, including for “denial of services from an Indian tribe” or being “discriminated against or terminated from a job by a tribe.”
That 90% of Indigenous people with civil legal needs are denied legal advocacy should unnerve our bench and bar.
To be sure, many Tribal nations exercise their sovereignty to honor and enforce civil rights laws, including ICRA. But far too many do not, as a result of this country’s dismal legacy of colonization and the perpetuation of neocolonial, constitutional governance structures imposed by the IRA.
Tribal nationalist and neocolonialist forces also operate to exclude Indigenous people from any seat at the table amid our country’s societal and racial reckoning.
Instead of delivering performative Indigenous land acknowledgments, our profession can help rectify this tragedy. Our state’s Supreme Court should address the systematic dehumanization of Indigenous people, having rebuked4 the “devaluation and degradation of black lives” in 2020. Equal rights and legal aid organizations should challenge “defects in Indian law” that degrade Indigenous humanity, as the ACLU did before Congress in the 1960s. Practitioners should quite literally answer Indigenous people’s calls for legal representation, and amplify their cries for freedom.
If you care about Indigenous humanity, please do something. Or is freedom just another word?
Gabriel S. Galanda belongs to the Round Valley Indian Tribes and is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights firm. Gabe dedicates this column to Blackfeet Tribal citizen and former King County Superior Court Judge Debora Juarez. In 1995, Bar Bulletin published an anonymous letter to the editor from “dedicated” lawyers and judges that degraded her judicial accomplishment and dishonored her and the original Peoples of these lands.
1 Library of Congress, Digital Collections, Today in History, June 2, https://www.loc.gov/item/today-in-history/june-02/
2 Washington State Health Department, Nations first Native and Strong Lifeline Launches as Part of 988, https://doh.wa.gov/newsroom/nations-first-native-and-strong-lifeline-launches-part-988
3 The Washington State Civil Legal Needs Study, https://www.courts.wa.gov/newsinfo/content/taskforce/civillegalneeds.pdf
4 https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary%20Legal%20Community%20SIGNED%20060420.pdf
