The hate group Citizens Equal Rights Alliance (CERA), and those like it, use similar tactics to disguise their fear of brown people in positions of authority. They disguise their fear and hatred with bogus legal arguments designed to rile up local resentment and to enlist new uninformed members and contributors. When their popular slogans and phony catch-phrases are exposed to the light of reality, however, we learn that their real problem is with the Constitution.
CERA, for example, uses two arguments to support their “equal rights” disguise. First, they suggest that recognition of Tribal sovereignty is the product of some obscure and evil legal maneuver designed to trample the rights of white people. Actually, the legal recognition of Tribal sovereignty is required by the express language of the Constitution.
Article II, Section 2 of the Constitution reserves power to the President to make treaties with Tribes and foreign nations with the "advice and consent" of two-thirds of the Senate. Though unchanged in the Constitution, that presidential power to treat with Tribes was curtailed by statute in 1871, but the constitutional force of existing treaties remains. In fact, Article 6 of the Constitution requires that treaties remain “the supreme law of the land.” Treaties with Tribes, therefore, are the same as those with other nations and the Constitution requires that Tribes be treated honorably as nations that have sovereign powers over their territories.
The second theme of CERA’s hate slogans is that recognition of Tribal sovereignty somehow infringes on states’ rights. Again, the commerce clause of the Constitution settled that issue. Article I, Section 8, of the Constitution reserves to the Congress the power: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Incidentally, the language of the commerce clause as it first appeared in the Articles of Confederation, the predecessor to the Constitution, included states in the regulation of commerce with Tribes. The states soon recognized that arrangement was unworkable, however, and they ratified the existing constitutional arrangement for exclusive federal authority to regulate commerce with the Tribes.
Elaine Willman, a vocal leader of CERA, used this second argument to convince an element of the Washington attorney general’s office to join with her and another group she led to challenge the Yakama Nation’s utility tax, a group she called the Standup! Committee. Washington’s AG and Standup! argued that the Yakama Nation had no business in taxing utilities through a Yakama Nation law designed to address trespass by local utilities. The Washington Utilities and Transportation Commission saw through the disguise, as did the Washington courts, and in 2005 the State Supreme Court ruled against Willman and her anti-Indian group. Their tactics back-fired, and the resulting decision strengthened respect for Tribal sovereignty.
CERA also tried to convince the United States Supreme Court in a “friend-of-the-court” brief to find that Congress had no authority to recognize Tribal sovereignty to prosecute nonmember Indians for crimes committed on their lands in the 2004 case, United States v. Lara. The group argued that only the Supreme Court could recognize Tribal sovereign authority. Again, their efforts back-fired and Tribal sovereignty was strengthened by the decision that Congress could indeed confirm sovereign authority of Tribes. The bogus-argument disguise of these hate groups is not always exposed, however, and sometimes their members are themselves in positions of power.
Official actions fueled by racist views of people in power are seldom easy to confront. The recent decision of the Rosebud Tribal Court to retain jurisdiction over an action designed to address ballot-box stuffing and similar voter discrimination practices by the local electric cooperative is a good recent example. Rural utility cooperatives are virtually unregulated as a matter of public policy of most states. They are also backed by federal funding or financing of the Rural Utility Service (RUS) of the US Department of Agriculture.
Despite having 80 percent of its customers being Native Americans, the lawsuit at Rosebud claims the voting shenanigans of Cherry Todd Electric Cooperative prevented the election of Natives to its board of directors. Tribes must tackle similar problems with USDA-backed utility cooperatives throughout rural America, with little support from the agency. In response to the Tribal court action at Rosebud, however, Cherry Todd Electric asserted that the proper way to address complaints of voting fraud was with the USDA. Good luck with that.
The Standing Rock Sioux Tribe tried to address similar discriminatory practices of its local USDA-backed telecommunications cooperative and the RUS program through the USDA civil rights complaint process beginning in 2003. The complaint “adjudication” process took several years and afforded the Tribe no hearing or ability to confront evidence or witnesses. Members of the board of directors for the local telecommunications cooperative were CERA members.
The problems faced by Tribes with CERA-types in positions of authority are more common than people realize. In my career I’ve seen it with fire districts, sewer districts, utility districts, law enforcement agencies, local and state governments, newspapers and radio stations, and even federal agencies staffed through the revolving-door process by those they are supposed to regulate.
The difficulty of litigating claims of such institutionalized racism in places of power has been made even more difficult by recent decisions of the Supreme Court, beginning with its 2001 decision in Alexander v. Sandoval. It used to be that victims of discrimination could prove their claim by establishing discriminatory impacts. Not anymore. The Court now requires that it is not enough to merely demonstrate the horrific effects of racist actions caused by people in power; victims now must prove the actors had a discriminatory intent, a seemingly insurmountable task. How do you prove what people are thinking?
But there is a way to overcome this new judicial obstacle. Disregard the disguise of their flimsy legal arguments, and expose their true motives by documenting and publicizing details of the discriminatory effects of their actions. Document and make a public record of how people are harmed by concerted actions fueled by hate. That puts them on notice in a public way that their actions are discriminatory. If their conduct continues, their disregard for the effects of their actions is proof of discriminatory intent.
Public education is often the best defense in the face of hatred disguised by fabricated legal arguments. Not only will it expose the true motives behind puffed up accusations, but it also educates the uninformed on the caustic harms caused by discrimination.
Dave Lundgren is a federal Indian law attorney who practices from his private practice in Eastern Washington. He has served as in-house legal counsel for Tribes in Washington and now represents Tribes and Tribal entities across the country as special legal counsel. He can be reached at LundgrenPC@gmail.com.