A distinguished gentleman warrior in the cause for Indian justice

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WASHINGTON ? "Distinguished gentleman" is the most commonly used term for members of the U.S. House of Representatives, even for those who are neither distinguished nor gentlemanly.

The distinguished gentleman from Flint, Mich., really is a distinguished gentleman ? the please-and-thank-you kind whose word is his bond. More policy-maker than politician, Rep. Dale E. Kildee, D-Mich., has crafted federal Indian law for most of his 26 years in Congress and the dozen he served in the Michigan legislature before that.

A wide boyish smile and youthful face belie his 72 years, and he is known for out-pacing many colleagues and staffers more than a quarter-century his junior. He and wife Gayle have raised three children and are grandparents of two. He is scholarly, courtly, diplomatic and patient, as would be expected of a 10-year veteran of classroom teaching who was educated in history and political science at Catholic seminary and the Universities of Michigan and Peshawar, Pakistan.

Kildee has distinguished himself on both the Education and Resources Committees, where he is a senior member, and as co-chair of the Congressional Automotive Caucus.

But it was in his capacity as co-chair of the Congressional Native American Caucus that the gentleman from Michigan shown brightest on July 17.

He led the House through a thorny debate over two Indian-related provisions of the appropriations bill for Interior and related agencies. After a divisive floor fight, he emerged with two decisive victories for Native Americans and a better-educated House.

One of the appropriations provisions was sponsored by Rep. Frank R. Wolf, R-Va. For the past few years, Wolf has had a bee in his bonnet about the efficacy of tribal gaming operations. He wants a moratorium on approving new ones and on recognizing any more tribes. His provision would have set up what Kildee called "yet another study commission."

Kildee argued that Congress has had over 70 different Indian study commissions, a number of them on Indian gaming. "We've had our gambling commission report already," says Kildee. "I felt it was really an insult to say to Indians, 'We're going to study you, again' ? to go out with their suits and briefcases and study Indians one more time.

"The motivation for the study was not" ? he pauses for a moment to choose his word very carefully ? "objective."

Kildee and his Native American Caucus co-chair, Rep. J.D. Hayworth, R-Ariz., made the case that the study was diversionary and would siphon off scarce funds from federal Indian health, education and economic development programs.

The study provision was rejected by nearly two-thirds of the House members, by a vote of 273 to 151.

The other appropriations provision dealt with trust funds accounting and was more difficult for most House members to grasp. It sounded ministerial and harmless, and it had the blessing of the Bush administration and Interior Appropriations Chairman Joe Skeen, R-N.M., and Ranking Member Norman D. Dicks, D-Wash.

That is to say that the odds were against Kildee being able to muster enough votes to strike the provision.

Far from innocuous, the provision was designed to alter the facts and federal liability in the multi-billion-dollar trust funds case pending in federal district court since 1996. Plaintiffs in the case are some 500,000 individual Indian account holders who want the Trustee United States to account for their trust funds and to repay monies that it never paid to the Indians.

For more than 15 years, Congress has been trying to get an accounting of the trust funds, too. It ordered one dating back to 1887, the year the General Allotment Act was passed and began to break up tribal landholdings and parcel them out to individual Indians.

The appropriations provision on accounting would have given Interior what it wants, but what the court and Congress have not granted: permission to account only for those funds from 1985 to the present, forgiving a century of the trustee's poor record-keeping and non-payment.

"To say that the federal government gets a clean slate before 1985 was, to my mind, very offensive," said Kildee. "That was legalizing malfeasance, misfeasance and non-feasance, and in some instances legalizing theft."

Kildee worked diligently to educate his colleagues and to keep them focused on the fairness of the matter: "This is the Indians' money. It's not any grant we gave them or any appropriation. It was their own money they earned from their lands. It's extremely important, especially when we see what the private sector has done in not having good accounting methods, for government to do all that is humanly possible to give a good accounting to the Indians."

Both the Clinton and Bush administrations have tried to get around the accounting mandates of Congress and the court, rather than providing an accounting or devising a formula to settle the lawsuit, or both.

This recalcitrance led Judge Royce Lamberth to find two Clinton cabinet members, the Interior and Treasury secretaries, guilty of contempt of court. He will soon decide if Bush's Interior secretary, Gale A. Norton, is in contempt. The judge is also close to deciding whether or not set up a trust funds receivership and to starting the accounting phase of the trial.

"We did do a good teaching effort," says Kildee. "The margin was outstanding. It wasn't even close. We were cautioned by certain people, 'Maybe you shouldn't take this to a record roll call because we'll lose and that'll hurt our position over in the Senate.' But Kim Teehee and I really felt in the heart of our hearts that we were going to win."

Kimberly Teehee, Cherokee, is a lawyer who has served as executive director of the Native American Caucus since 1998. She returns regularly to her home in Claremore, Okla., where she is a Stomp Dancer.

It was Teehee's strategy to marry the two issues on the study commission and trust funds accounting, over the objections of some Gucci Gulch lobbyists for Indian nations. As the only full-time staffer for the Caucus, it was her job to respond to myriad requests for information in the days preceding the House votes. She wrote the Caucus arguments by day and searched for brightly colored paper in the middle of the night "so our message wouldn't be lost in the sea of white paper on everyone's desk," said Teehee.

"We would not have had the victory on the House floor, but for the efforts of Rep. Kildee and Kimberly Teehee," says Keith Harper, Cherokee, a staff attorney with the Native American Rights Fund and lead counsel in the trust funds litigation.

"They thought from the very beginning that we could win this on the House floor," said Harper. "They put in the hard work convincing other members, getting 'Dear Colleague' letters out, doing all those things that are necessary to get the message out. They were fighting against some very powerful people, but they knew they had the truth on their side, that the provision was fundamentally unfair."

Harper calls it "ironic" that, at a time when the Bush administration is pushing for greater corporate accountability, "they're looking for less governmental accountability to Indians, when they know for a fact that the government has mismanaged the trust for decades and now doesn't want us to be able to determine to what extent they have mismanaged it and (the extent of) their liability.

"Mr. Kildee was able to make that case on the floor and engage other members in making that case. It led to an extraordinary event: 281 to 144 votes, with 88 Republicans crossing the aisle."

Kildee ranks this floor fight "in the top one percent of Indian issues" in terms of threats to Indian rights. "We've had the (efforts to impose a) 35-percent tax on Indian business, including gaming. That was a very offensive thing because it was attacking sovereignty. We've had attacks on the Indian child welfare act, where a sovereign nation certainly has authority over the adoption of its own children. We've had attacks on taking land into trust.

"But this was hitting at the very heart of our trust responsibility of making sure that money that was owed to the Indians was accounted accurately."

Reflecting on the root of opposition to his efforts to strike the provisions, Kildee says, "I don't think everyone who supported putting those two amendments in were doing it out of evil intent. It was more, 'Let's get it behind us, it's too complicated.' If it were their Irish ancestors who were owed money ? I'm Irish, so I can say that ? they might not think it was so complicated, right?

"Some just don't like the idea of sovereignties existing. Some may have a bias or prejudice against Native Americans. Some find some economic competition from Native Americans. A lot of them thought it was too hard to reconstruct (the records) and we can probably never totally, exactly reconstruct them."

Kildee thinks that some of his colleagues were most concerned about the cost of reconstructing the records. "But this is a cost we have to pay," he insists.

Using the comparative example of the annual $16 billion for foreign aid, he says, "This isn't foreign aid; this is money we are paying to the Indians that is theirs. We're taking from the bank what is theirs in the bank and remitting it to them. If we can give $16 billion to foreign countries, we can certainly give to our Native Americans that which is already theirs and that for which we were supposed to have been the banker, the trustee."

Kildee says that "the fact that we won so well" sends this message: "We have now in the Congress a number of people sufficiently organized to block anti-Indian legislation. We haven't lost one issue, by the way, since the Native American Caucus was formed. That may happen someday, but I hate to lose where justice is involved."

Fundamentally, Kildee is an educator who does his homework and is happy for teachable moments. "The Appropriations Committee was taught with this vote that there is a force out there that goes beyond the 110 members of the Native American Caucus," says Kildee. "Since we established the Caucus in the 105th Congress, we've grown from six members and have educated both the staff and members of the Appropriations Committee that you don't touch Indians in an injurious manner."

Kildee's baptism by fire in congressional Indian affairs came with a lawsuit in his own backyard ? U.S. v. Michigan ? which upheld treaty fishing rights and decided in favor of tribal management of treaty fisheries in the state.

As a state legislator, he "always supported the Indians," championing laws to pay the tuition for Michigan Indians to go to public colleges and to establish the Michigan Indian Commission. The treaty fishing case was different ? the hottest of the hot-button issues in his home state.

In the face of tremendous political pressure to undercut the court case, Kildee recalls that he "took the Indian side for two reasons. First, I had read the treaties, which made very clear that Indian fishing rights were guaranteed in perpetuity. Second, I read the Constitution. I think that many people back then hadn't read Article I, Section 8, which recognizes the three sovereignties that the Constitution recognizes. Some had never recognized that treaties under the Constitution are the supreme law of the land."

Kildee applies his own experience when recruiting new members for the Native American Caucus. "There are only two things they have to do: to recognize the real retained sovereignty of the Indian nations and to have the courage to vote for protection of that sovereignty. So, they don't have to be wandering around in the wilderness, wondering what Indian rights are."

He encourages new members to "first read the Constitution ? because each one of us takes an oath to uphold that Constitution ? where Congress regulates commerce with foreign nations, among the several states and with Indian tribes. Second, I would give them a copy of (Supreme Court Chief Justice) John Marshall's famous decision that this is a retained sovereignty."

Kildee always carries copies of the Constitution and the Marshall decision in his pocket. He recalls a conversation several years ago with a member of Congress, who said, "I concede that we granted the Indians a certain type of sovereignty." Kildee responded, "We didn't grant them anything. It's a retained sovereignty," and gave the other member the Marshall decision. He remembers another congressman saying, "It may be there in the Constitution, but I still don't like it," to which Kildee replied, "You may not like the amendment setting up the income tax, but you better pay your taxes."

Kildee believes that people generally and in Congress are more aware now that "these are real sovereignties."

What Kildee sees on the immediate horizon for the Native American Caucus is to protect Indian rights and to reclaim Indian land and jurisdiction. "First of all, make sure there's no slicing away at sovereignty and treaties. There are some tribes out there with such little land, because their land has been illegally taken from them for the most part, that we have to help them get land."

He calls a tribal land base and a tribal language "the best two anchors for sovereignty." He says that "a lot of us are making sure that we don't pass amendments, by Mr. Istook (Rep. Ernest Istook, Jr., R-Okla.), for example, that would have made it more difficult to take land into trust. We need to look at some of the Supreme Court decisions where they limit the sovereign right of the Native Americans on their own land when it comes to dealing with Indians. I would like to see Congress set aside those court decisions on the right of exercising real sovereignty on sovereign lands."

Kildee's best advice to Native Peoples is to "reach out beyond their own membership to the other populations and to those who seek public office. Every Native American leader has to inform and educate especially those who are in a position to make decisions on a state legislative front and in the national Congress."

Harper marvels at the distinguished gentleman's ability to galvanize so much support so quickly. One reason for Kildee's success, says Harper, "is that he is a true believer in the cause of Indian justice.

"The message is loud and clear from the Congress: we win, if we take it to the mat. We in Indian country ought to be learning from this. The eye-opener for me is that we can win up there and we can get the type of reform that can lead to the government finally living up to its trust responsibilities."