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Stop IRS's Indian Treaty Violations

A column by John Steele about the IRS not honoring Indian treaties.
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Our Indian nations and tribes are the first American sovereigns. Our people were always free.

When Red Cloud saw the American flag he asked what it meant. He was told it is the symbol of the United States. So, he took out an arrow and tied an eagle feather to the end. He shot the arrow into the flagpole above the American flag, and Red Could said, "That eagle feather is our flag."

Sitting Bull said, "We are free people. No one controls the path we walk."

Crazy Horse said, “We preferred our own way of living and we were no expense to the government.”

The Sioux Nation Treaty of 1868 reserved western South Dakota, from the low water mark on the east bank of the Missouri River through the Black Hills to the Wyoming border as the “permanent home” of the Great Sioux Nation. The Treaty preserved our Lakota homeland for our “absolute and undisturbed” use, and forbid any unauthorized persons from entering our lands.

The heroes of the Civil War—President Grant, General Sherman and General Sheridan—broke the Treaty and sent Custer to his fate. Then they sent more and more armies against us, killing many of our chiefs and families on a genocidal campaign to steal our Black Hills and our gold.

Sherman said that he wanted us to be helpless and dependent. Today, our Lakota people are the poorest in the United States. Five of the 10 poorest counties in the United States are located on the original lands of the Great Sioux Nation in North and South Dakota. It is no accident that we are poor—It is the direct result of United States’ policy to steal land and resources from Indian nations.

As tribal governments, we struggle to provide opportunity for our people, under our reserved rights to self-government. Our rights are human rights that pre-date the United States. Thomas Jefferson said, “All men … are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” On the Good Red Road, we seek good lives, real jobs, health and happiness. To us, liberty means respect for our self-government and Treaty rights.

Yet, once again, the United States is violating our rights. This time it is not the 7th Cavalry. Today it is the Internal Revenue Service that is sent out against us.

The IRS recognizes that when the Federal and state governments fund public schools, affordable housing, health care, and old age assistance, those are essential government functions. Yet, when Indian tribes provide education, housing, health care, and elder care to our people, the IRS wants to tax us under the General Welfare Doctrine because we provide our programs to all tribal citizens and we do not “means test” our people.

Naturally, we serve all of our people, after all we are an Indian nation and we have always done so. When an elderly grandmother was hungry and she had lost her sons, the young hunter provided her buffalo. Today, we refuse to peak into checkbooks, before we feed our elders or provide lunch to our children.

The IRS is discriminating against Indian tribes by seeking to audit all Indian tribes in the country. IRS is not conducting similar audits of the state and local governments. For example, Pennsylvania makes elderly payments from the state lottery proceeds, but the IRS does not complain about that. Georgia pays for college scholarships for all qualified state citizens, yet the IRS is not seeking to tax Georgia students.

The IRS has been coming out to Indian reservations, camping out at tribal government headquarters for weeks at a time, seeking to force us to conform our tribal self-government to IRS guidelines. Sitting Bull said, “the White Man knows how to make everything, but he does not know how to distribute anything.” We will serve our people according to our traditional values, and the IRS should recognize that we reserved that right under our Treaties. In Ex Parte Crow Dog (1883), the Supreme Court said that our Treaties and Agreements reserve to the Sioux Nation “the best and highest form of government, self-government.”

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The Constitution recognizes Indian tribes as prior sovereigns, with the power to make treaties and affirms the earliest Indian treaties that guaranteed tribal homelands and protection for tribal government. The Constitution refers to tribal citizens as “Indians not taxed,” recognizing that our people were originally citizens of Indian nations, not citizens of the United States.

More than 90 years after the Declaration of Independence, the United States had agreed to over 370 Indian treaties. In 1868, the Constitution’s 14th Amendment affirmed those treaties by repeating the original exclusion of “Indians not taxed” from congressional apportionment and taxation. The 14th Amendment also excluded tribal citizens from the Citizenship Clause.

As the Supreme Court said explained in Elk v. Wilkins (1884), the United States dealt with Indian nations through treaty and agreement, not by passing laws to govern tribal citizens on tribal lands.

Although born in the United States, our people were subject to our own nation’s jurisdiction, not the United States’ jurisdiction, so our grandparents did not become U.S. citizens. In 1874, Chief Spotted Tail told President Grant, “if I was a citizen, I would vote for you.” That was before the Custer fight, of course.

In 1924, when Congress enacted the Indian Citizenship Act, our Lakota and Dakota people sought a provision to protect tribal self-government. Congress enacted the proviso along as part of the Indian Citizenship Act:

“[A]ll non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property."

So, under the original terms of the Constitution and the 14th Amendment, the Sioux Nation Treaty of 1868, and the Indian Citizenship Act, the IRS must not tax our tribal government programs as income to tribal members.

Yet, the IRS wants to ignore our treaties and ignore Federal law because they seek a “uniform rule” that applies the same across the country. They want to tax tribal elderly payments, tribal cultural activities, tribal housing, education and health care. They even want to tax burial programs. Who gets the tax bill? The husband and father who has passed on to the spirit world? Or the grieving widow and orphans?

Chief Red Cloud said, “They made us many promises, but they kept only one. They promised to take our land and they took it.” Now, the IRS is trying to take away our government.

We understand “uniform rules” because Indian people have the highest rate of military service in the Nation. I, myself, am a Vietnam combat veteran. Treaties Are Among the Supreme Law of the Land, so we have a “uniform rule” for IRS:

Respect Our Treaties!

Congress must pass a law to tell the IRS, when we provide for the general welfare of tribal citizens, when we work to make our Indian lands a livable “permanent home,” when we promote the Trust Responsibility and Treaties, agreements, and statutes, tribal governments promote the general welfare of the United States. Our programs are not subject to Federal income tax.

John Steele is the president of the Oglala Sioux Tribe.