The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, October 07, 2003

Now the Federal Indian shakedown?

We know that, in California, today's Octopus [1] wears a headdress (my piece of September 30).

But, strangely, it had escaped me that a redskin raid to gladden Geronimo's heart is currently in progress in the sacred purlieus of Capitol Hill itself!

To wit, S 578, the Tribal Government Amendments to the Homeland Security Act of 2002 [2].

The first 12 sections of the bill are amendments of detail to the 2002 Act - the impression is one of a housekeeping exercise - no matters of principle at stake at all [3]. Of an utterly different character is §13:


    (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.

According to an analysis by the Citizens Equal Rights Alliance [4],
Section 13 would overturn a series of at least twenty years of Supreme Court decisions including the recent unanimous decisions of Nevada v. Hicks and Atkinson v. Shirley and Oliphant v. Suquamish Tribe.

Now, as I understand it, it's pretty commonplace for Federal legislators to attach riders to bills to slide them through when, if they constituted a separate bill, they would come under much more exacting scrutiny. This seems to be what's happening here.

I can't say I've considered the merits - perhaps, despite appearances to the contrary, the Indians have a case. There's plenty of law to digest for a start, before being able to tackle the substantive question.

It's the sneaky - though time-honoured: the old Southern Caucus would surely tip their hats! - way that the amendment is being got through that is the immediate cause for alarm.

Already, the Senate Committee on Indian Affairs has held hearings on S 578 (on July 30). The statement of Sen Daniel Inouye is instructive: it's not the first time a power grab comes justified by considerations of national security - Inouye is no more blameworthy than John Ashcroft in that regard! But the idea of Al Qaida roaming the reservations because of the Indian police's lack of an arrest power - you need to read it to believe it.

I can't identify anyone on the witness list likely to have spoken against §13: perhaps the Indian Affairs Committee is the Senate equivalent of a reservation, where the white man deigns not to intrude.

Certainly much more research needed - but how much time is there before the bill gets reported out? Can §13 be excised in the Governmental Affairs Committee (to which the bill has also been referred)?

In case you were wondering, there is a corresponding House bill, HR 2242, which has the same §13. It's been referred to five committees, none of which have held hearings.

What is the Administration's view on the matter? Not, I fear, the sort of bill to veto a year out from a presidential election...

  1. A rather more extensive search for Southern Pacific 101 fails miserably; there this summary of the Frank Norris novel; interesting tangential pieces are a summary (PDF - appendix of a RAND publication) giving the history of Los Angeles charter reform; and the (distinctly polemical!) Gangs of America on the supposed corporate takeover of American democracy (some takeover! some democracy!).

  2. Is that name right? I thought the short title always ended in the words Act of [the year it becomes law]. S 578, if it ever becomes law, will not become law in 2002!

  3. In fact, it seems to be the tribes wanting to dip their bread into the Homeland Security budget...

  4. Who they? Read what they say they are. Sticking up for white guys who own land on reservations, I think is the bottom line. Two hours ago, I'd no more notion of its existence than that of S 578!

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