US Legal System A Weapon Against Native Peoples
Tanya H. Lee
Harvard Law School left him ill-equipped to serve his tribe effectively in any legal capacity, said Robert Odawi Porter, keynote speaker at the April 29 “Native Peoples, Native Politics” conference at Harvard’s Radcliffe Institute for Advanced Study. Porter was attorney general and later president of the Seneca Nation.
Porter said the American system of law is intended to control Native peoples. “I’ve never thought of it as neutral; it is a weapon. It’s a tool that is used by the colonial legal system and colonial societies to control indigenous populations.”
The Doctrine of Discovery that is the foundation of the American legal system, Porter explained, is based on the fiction that Christian nations somehow own this land because the “savages” who were here were not really people, and the idea that Congress holds plenary power over the Indigenous Peoples of the U.S. is based on this mistake, he said.
“There is nothing in the treaties of the Seneca Nation or the Haudenosaunee that says we hereby consent to the plenary power of the United States. If you’re a tribal nation that has consented by treaty to the application of American law, and some tribes have, well, then you’re stuck. But most have not. And that’s called jurisprudential sovereignty, that’s the ability to decide your own legal relationship with the United States,” he said.
Porter questioned the legitimacy of the court system that has been so detrimental to Indian nations. “You don’t settle disputes between tribes and the states or federal government by running to the Supreme Court. You resolve them through negotiation, if at all. It’s a treaty. It’s not meant to be adjudicated in the courts of one side over the other. Lawyers trained in the American legal system are not taught there’s an entire other legal system you have to be respectful of.”
U.S. District Court Judge Diane Humetewa, Hopi, contrasted the federal court system, which Porter described as essentially destructive, pitting people against each other, with the Hopi tribal court system. Even though the Hopi courts were set up by the BIA and there remain traditionalists who do not recognize their legitimacy, as a judge in those courts, Humetewa said she had to “balance tradition and custom, to think beyond the individual claim to the impact of a ruling on the village and the tribe as a whole. In federal court you only focus on the case in front of you, the individual’s rights and claims.” Tribal judging, she said, is much more nuanced and complex.
The Tribal Law and Order Act of 2010 and the 2013 reauthorization of the Violence Against Women Act, said Humetewa, have created tensions in some tribal courts because provisions based on the U.S. Constitution are not necessarily included in tribal constitutions yet must be incorporated into tribal court systems in order for them to retake some of the inherent tribal legal authority that has been stripped away by Congress and the Supreme Court over the years.
The legal institutions that have eroded tribal sovereignty are the very ones now deciding critical questions such as “Who is an Indian?” said Richard Guest, an attorney for the Native American Rights Fund’s Tribal Supreme Court Project. “In Baby Girl, the discussion of blood quantum by [Justice Antonin] Scalia was very disappointing, taking us back to a place where the discussion is, ‘Who is an Indian?’ This was the discussion back in the 1930s. And the disappointing decision in the Carcieri case [also spoke to that question]. Who is an Indian? Who gets to decide? The dynamic tension between self-determination and termination still exists,” he said.
As does the tension between being a member of an American Indian/Alaska Native tribe and a citizen of the United States. In a presidential election year, it’s a critical question.
Karen R. Diver, former chairwoman of the Fond du Lac Band of Lake Superior Chippewa and now White House Special Assistant to the President for Native American Affairs, talked about the power of the Native vote.
She said that in Minnesota “we got out the vote and swung local elections. We also elected Al Franken [to the U.S. Senate]. As politics gets more polarized, smaller constituencies can matter more. Franken won by 312 votes. We registered that many new votes at Fond du Lac. We challenged Franken to become a member of the Senate Committee on Indian Affairs. If he wanted our support, we expected him to be our voice.”
Diver continued, “If we can change voting in Minnesota and elect an ally in Al Franken, can we elect someone who is just like us? Our diversity is our strength. By 2030 the majority of this country will be people of color.”
Porter, on the other hand, said he is “opposed to the idea that we should be voting in American elections. Citizenship was not given to us as some notion of liberating our political existence. It was a tool of assimilation and oppression, to make sure that we were absorbed into the American polity at the expense of our tribal sovereignty.”
That’s a position that Sylvia McAdam, Saysewahum, co-founder of Idle No More, strongly advocates. “The original people were considered the flora and fauna of new world, not as humans. This system targets indigenous women as most the hated” because in precolonial matrilineal cultures, women controlled land and water rights.
“We now have to go to their artificial illegal system to regain our land. When we go to vote in their systems or to run [for office] in their systems, we legitimize them when we should be stepping away and saying you do not have authority” to impose your system of laws.
Other panelists at the conference included Joseph William Singer, Harvard Law School; John H. Dossett, National Congress of American Indians; Kristiana Kahakauwila, Native Hawaiian, Radcliffe Institute for Advanced Study; Frank Waln, Sicangu Lakota, musician; Matika Wilbur, Swinomish/Tulalip, photographer; Irene Bedard, Inupiat/Yupik/Inuit/Cree/Métis, actor; Migzi Pensoneau, Ponca/Ojibwe, the 1491s; and Loris Taylor, Hopi, Native Public Media.