Senator Jon Kyl (R-Arizona) recently issued a statement after the passage of the reauthorization of the Violence Against Women Act, in which he argued that tribal governments (and I can only assume that he means governments recognized and organized under the BIA and the IRA), are racist by nature, and “by subjecting individuals to the criminal jurisdiction of a government from which they are excluded on account of race—would quite plainly violate the Constitution’s guarantees of Equal Protection and Due Process.” This is his argument for reasoning that tribal jurisdictions should not include enforcement on non-tribal members and all non-Natives who commit crimes within the exterior boundaries of Native territories.
Regardless of what his logic says about the U.S. government agencies who created those tribal governments, Kyl’s statement speaks to many issues—blood quantum, jurisdiction, budget allocations and education, to name a few. Many tribal governments share these issues with neighboring non-Indian communities and oftentimes tackle them together often sharing funding, services and infrastructure.
We have come to the point in our governments relationships to each other where we must discuss and design a way where we can interact under our separate laws so both our peoples are treated equally and fairly based on our values and within each of our sovereign legal frameworks. However, this is hard to do with elected Indian leaders running around willy-nilly publicly identifying themselves as Americans, which renders arguments of tribal territorial sovereignty moot. When compounded by the overly paranoid and aggressive philosophies of the extreme left and right wings of America’s elected leaders, solutions that are right in front of our face seem to drift out of arms reach. And when officials like Senators Kyl and Hutchison get their race baiting tentacles on them they are carried to the bottom of the sea.
My Iroquois relatives are taught from infancy that our relationship with the U.S. is framed around a government-to-government relationship, a policy relationship if you will, not government to race relationship.
The Iroquois-European policy relationships, which later included with the U.S., began—and continues to be—based on trade. Trade is diplomacy; good relations mean good trading partners. The common ground between our peoples and our governments would include a well maintained field where an ongoing discussion about our interactions take place, including when laws are being broken by our respective citizens.
Some have said that legal authorities should be brought into this discussion. I would think that those authorities would look to what worked in the past (the Treaty of Canandaigua, 1794 and 1796, and the Two Row Wampum that originated with the Dutch and Iroquois and passed on to the French, English and finally the Americans) to see how crimes were to be addressed.
ARTICLE 7 Canandaigua Treaty. Lest the firm peace and friendship now established should be interrupted by the misconduct of individuals, the United States and Six Nations agree, that for injuries done by individuals on either side, no private revenge or retaliation shall take place; but, instead thereof, complaint shall be made by the party injured, to the other: By the Six Nations or any of them, to the President of the United States, or the Superintendent by him appointed: and by the Superintendent, or other person appointed by the President, to the principal chiefs of the Six Nations, or of the nation to which the offender belongs: and such prudent measures shall then be pursued as shall be necessary to preserve our peace and friendship unbroken; until the legislature (or great council) of the United States shall make other equitable provision for the purpose.
If we are at that point in our relationship where we need to discuss as equals, as governments, how to handle criminals with a keen eye as to who they are, whose citizens they are, then someone needs to bring Senator's Kyl and Hutchison up to speed. They seem to be speaking the language of post-1865 when the states were discussing the fate of the freed slaves, i.e., "Just how equal are they to be?"
Senators Kyl and Hutchison, it is indeed time to drop the race-baiting and look back to when things worked well—when trust, friendship and trade were the currency of good diplomacy.
Ray Cook is Indian Country Today Media Network's opinions editor.