Rodney King is not an educated man, but his plaintive cry in the middle of a Los Angeles riot,
Can’t we all just get along?
was freighted with wisdom far beyond book learning. I am reminded of my resolve to “get along” when I graduated from law school and became one of about 2,000 Indian lawyers at the time in the entire country. I would never, I had told myself, sue another Indian or a tribal government. We receive enough harm from the dominant culture without adding to it among ourselves.
That resolve didn’t last ten years.
One of my early mentors, who was then acting as a tribal court judge for a number of Western tribes, found himself blackballed for ruling in favor of a citizen against his tribal government. That was apparently perceived as biting the hand that fed him, so several tribes quit feeding him.
In spite of his stellar qualifications, he found himself passed over in favor of white judges who were apparently more pliable. In my last sentence, I wrote “white.” Didn’t I really mean “non-Indian?” Yes, but after I came to a complete stop to ask myself if I made an error — and a racially insensitive one at that — it dawned on me once more how the nonsensical construction we call “race” permeates everything in these disunited states:
History, because of the compromises with slavery in the Constitution and the resulting Civil war.
Politics, because of the complicated machinations the slave owners undertook to “protect their property” after they lost the Civil War.
Law, because you can’t combat racial discrimination without pretending that “race” has an objective reality it lacks.
And even, says the aged writer, how we use language in the 21st century, long after cultural anthropologists and even physical anthropologists have given up on race as a useful way to divide the species, H. sapiens. When I was an undergraduate, you could still gin up an argument among physical anthropologists about how many “races” there were.
That digression came from the thought that I’ve never seen a black tribal judge, but I have seen persons labeled with that bit of ingenious linguistic tomfoolery, “Hispanic.” I suppose it is meant to describe the descendants of settlers from the Iberian Peninsula while ignoring their indigenous blood? The only way to defend this language abuse is with the self-evident proposition that people are entitled to call themselves whatever they please.
So, you may ask, is it American Indian or Native American?
Neither. I am Cherokee, a citizen of the Cherokee Nation, one of circa 500 surviving indigenous political subdivisions. If there is need for a collective descriptor, I think the Canadians got the best idea: First Nations.
It’s hard to criticize tribal governments without giving credence to the nonsense that the Americas had no governments until the settlers imported them from Europe. Hard, but necessary.
I was socializing with a professor from an Oklahoma tribe, who was regaling me with stories of the corruption in his tribal government. Since I knew he was not ignorant of how to practice politics, I asked him why not vote the bum out?
Too many absentee voters.
So what? My tribe has absentee voters and we manage to run contested races. I’m an absentee voter.
Yeah, but in your tribe any candidate can get a voter registration list.
True. He had me there. The bum in question was later removed by a method not completely unknown in Indian Country, federal indictment.
I fell into another situation in a more personal way. A non-Indian administrator had essentially bought off an elected tribal government using the tribe’s own funds from casino operations. Virtually the entire tribe signed a recall petition, but there was no called election as required by the Constitution because the tribal judge would not rule on anything that challenged the government. At the time I got involved, poor legal advice had led the tribal majority into state court, which is a result even worse than federal court for its impact on sovereignty.
This contretemps was solved by massive (in relation to the size of the tribe) civil disobedience followed by federal indictment, and the corrupt administrator was convicted. While I am glad that the citizens got their government back and pleased that the non-Indian schemer will be contemplating his sins in the Club Fed, there is one thing about the scenario that is less encouraging.
As I was advising the majority behind the scenes, I was also giving them a blow-by-blow on the flaws in their Constitution and what could be done in the future to avoid outside intervention, if indeed there were to be a future. They listened gratefully and I had high hopes that changes would be made.
In the end, the only change that was made was that the crooks were removed and replaced by honest people. This leads me to wonder what makes us think we are so much better than the settlers? How much evidence does it take until we understand that we are not, and the best government structure is one that assumes dishonesty, a government of checks and balances with no absolute power and no ability to do tribal business in the dark. Corruption hates sunshine. Having the right structure counts even more than electing the right people.
During my time teaching in Indiana, a colleague from another Oklahoma tribe found himself charged in tribal court with “criminal libel” for criticizing his government on the Internet. When he filed a request for a jury trial and a notice of intent to rely on truth as a defense, the criminal charges went away.
It is not certain that truth would be a defense. At common law, a libel case was made out by showing that a defamatory publication harmed someone’s reputation and it was no defense that his or her reputation ought to have been harmed. The U.S. Supreme Court has established truth as a defense to libel of a public official as a matter of constitutional law, in one of several landmark First Amendment cases the current POTUS wants to see reversed. A tribal court, however, is under no obligation to follow the U.S. courts.
When the criminal prosecution failed, one of those criticized sued for civil libel in tribal court relying on the fact of tribal citizenship to confer jurisdiction over an Internet posting that happened in another state. With the defendants tapped out by the criminal case and unable to get representation from 750 miles away, the plaintiff got a default judgment. Now if my colleague goes home, any property he might have with him is subject to seizure by tribal marshals to satisfy the judgment.
Lawyers are trained not to be quiet in the face of manifest injustice. There are still too few Indian lawyers and it seems to me they should have more productive things to do than sue other Indians. However, non-Indian lawyers are insensitive to the lines between tribal and state governments, and generally ignorant of the paternalistic history of the Bureau of Indian Affairs.
Non-Indian lawyers just see evil and want to correct it by any means. Perhaps Indian lawyers should see it the same way, and it is tempting to whack at sovereignty when there is a scoundrel hiding behind it, but there are legal tactics that even in a just cause are too destructive of sovereignty. Reluctance to use anti-sovereignty tactics is the positive value of Indians suing Indians.
“Non-Indians tend to elect morons,” the late Vine Deloria, Jr. said, “Indians tend to elect crooks.” In context, the great man was talking about South Dakota, but a moron who claims global warming is a hoax currently represents Oklahoma in the U.S. Senate, while another resides at 1600 Pennsylvania Avenue. I think any Oklahoma Indian can name a few Indian crooks. After over forty years of watching these crooks in action, I’m ready to believe that Rodney King had a Cherokee grandmother. He was certainly giving Indians, no less than black people, correct advice.
Lately, I’ve been thinking I might have been too hasty in dismissing the idea that Indians can learn from settlers about how to govern wisely. I was thinking:
*Demand personal loyalty from prosecutors. Check.
*Stack the courts with judges who promise to put politics above all. Check.
*Appoint cabinet secretaries who steal hand over fist. Check.
*Soften up the public to believe that an election you do not win is illegitimate. Check.
*If anyone in the legislative branch tries to apply constitutional checks and balances, destroy their career. Check.
*If an ambassador objects to dealing with crooked factions of a foreign government, recall her. Check.
Who says we can’t learn from the settler government? Where else could we arrive at this bedrock principle:
Why settle for morons or crooks when you can have both?
Previously published on medium
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Photo credit: Steve Russell