As American colonists began to call for democracy, revolutionary leaders dressed up as Indians, boarded English ships and dumped tea in Boston harbor to protest taxes on tea and commodities. The Boston Tea Party, with its rallying cry, “No Taxation Without Representation,” is viewed as the start of the American Revolution.
Today, the IRS is under fire for targeting the new Tea Party movement in a violation of First Amendment rights. The IRS is not only targeting the Tea Party. The IRS is targeting real Indians and Indian tribes. Over the past 10 years, the IRS has had a program to audit Indian tribes on tribal government programs and services, which has resulted in an audit rate 3 times the national average. That’s wrong, and it violates the United States Constitution, treaties, and laws.
From the time of the first arrival on American shores, European nations recognized Indian nations and tribes as independent sovereign nations, with authority over our citizens and our territory. In 1778, the United States entered its first written treaty with an Indian nation, the Delaware Nation, based upon a model of international relations. Before the Constitution, the United States entered into 17 treaties under the Articles of Confederation—most of those treaties were Indian treaties.
Through the Treaty and Supremacy Clause, the U.S. Constitution recognizes Indian nations as sovereigns by affirming treaties “already made” and by authorizing those “to be made” as an integral and essential part of the Supreme Law of the Land.
In the Indian Commerce Clause, the Constitution establishes bi-lateral government-to-government relations concerning Commerce with the Indian Tribes (parallel to the Foreign Commerce Clause).
In the Apportionment Clause, our Tribal citizens are recognized by the Constitution as “Indians not taxed,” and Indians were not counted for direct taxation purposes or for representation in Congress.
At the end of the Civil War, President Johnson and Congress embarked on the Indian Peace Policy, which sought to bring Peace with Indian nations. At that time, our people were defending the Powder River Country from new forts that were built in the mid-1860s. In the 1868 Sioux Nation Treaty, the United States expressed its desire for peace and pledged its honor to keep the peace. For our part, Chief Red Cloud would not sign the treaty until the U.S. Army left and then he burned the forts. Our 1868 Sioux Nation Treaty reserves our Great Sioux Reservation, including the Black Hills, as our “permanent home” for our “absolute and undisturbed use.”
At the same time, Congress framed the 14th Amendment to preserve the gains made through the Civil War. The Citizenship Clause extends U.S. citizenship to all persons born in the United States and “subject to the jurisdiction thereof.” Our Lakota were excluded because we were under the Sioux Nation jurisdiction, not the jurisdiction of the United States. In the Apportionment Clause, the reference to slavery—three-fifths of other persons—was deleted but “Indians not taxed” were once again excluded from congressional representation.
Thomas Jefferson recognized that our American Indian peoples were subject to our own customs and usages and that it would be wrong to extend the reach of Federal law to our people. In 1803, in the Louisiana Purchase Treaty, President Jefferson pledged to follow the international treaties with Indian nations, until such time as by mutual consent the United States entered into its own treaties with the Indian nations. Under our treaties, our Indian nations reserved our original rights to self-government. Ex Parte Crow Dog, 109 U.S. 556 (1883).
Prior to 1924, our “non-citizen” Lakota were not subject to Federal income taxation. When the United States was considering the Indian Citizenship Act, our Chief Henry Standing Bear sought to preserve tribal government rights and tribal relations with our own tribal citizens. When the 1924 Act was passed, Congress included a savings clause that the grant of U.S. citizenship did not “impair in any manner or otherwise affect the right of an Indian to tribal or other property.”
In the special area of treaties and remedial legislation, the citizens of Indian nations remain subject to tribal self-government and are not subject to Federal or state law, unless Congress expressly enacts contrary legislation. The 1924 Indian Citizenship Act, with its savings clause for an Indian’s right to tribal property, is a special area of remedial legislation intended to preserve tribal self-government.
Therefore, the IRS has no authority to tax tribal government decisions to issue tribal property to our individual Indian citizens, whether through our tribal government programs and services or another avenue. Our treaties reserve Indian tribal self-government over our citizens and our territory, and the IRS has no right to come between our tribal government and our tribal citizens.
When the IRS gores the Tea Party Ox, heads roll. When Indians are targeted, the mainstream press takes a nap. It’s time for Congress to act!
Brian Brewer is the Oglala Sioux tribal president.