Follow the Constitution and treat tribes as nations (not as a race)
Rodney M. Bordeaux
Rosebud Sioux Tribe
The United States must deal with Indian nations as sovereigns, not as a "race." Yet, the Secretary of the Treasury recently used the Census Bureau's statistics on "race," which are based upon highly inaccurate self-reporting, and refused to use our public records on tribal membership-tribal citizenship. That was wrong and must be rejected.
Since the dawn of time, American Indian nations have been independent nations, with popular sovereignty. The Creator gave us life, liberty and a duty to Grandmother Earth. Our Native peoples vest Native nations with sovereignty. Native peoples have equal dignity with all other peoples. The American Declaration of Independence begins with the principles that “all men are created equal ... endowed by their Creator with ... unalienable rights ... life, liberty, and the pursuit of happiness...."
From its first days, the United States of America sought out Indian nations to enter into treaties of peace, friendship and military alliance against Great Britain. The Constitution of the United States acknowledges Indian nations as sovereigns in the Treaty and Supremacy Clauses, recognizes the United States government-to-government relationship with Indian Tribes in the Commerce Clause, acknowledges the primacy of tribal jurisdiction in the 14th Amendment's Citizenship Clause, and recognizes tribal citizens as "Indians not taxed" in the Apportionment Clause and the 14th Amendment.
Pursuant to the Constitution, America made more than 375 treaties with Indian nations. In our treaties, the United States promised its protection, peace and friendship, and undertook the Federal trust responsibility to act for the benefit of Indian nations.
In 1851, the United States entered the Fort Laramie treaty with the Sioux Nation and other Great Plains tribes acknowledging our national territories. In 1868, the United States made the Treaty with the Great Sioux Nation acknowledging our territory as our "permanent home" and "Indian territory." Our Indian nations reserved our right to self-government:
The pledge to secure to these people, with whom the United States was contracting as a distinct political body, an orderly government by appropriate legislation thereafter to be framed and enacted necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life which it was the very purpose of all these arrangements to introduce and naturalize among them was the highest and best of all -- that of self-government, the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs.
(Ex Parte Crow Dog, 109 U.S. 556,568 (1883) (This is a case from the Rosebud Sioux Tribe).
Self-government is our basic human right and sovereignty is our political status
Our status as sovereign Indian nations and distinct political communities has been consistently upheld by the Supreme Court. In Morton v. Mancari, 417 U.S. 535 (1974), non-Indian employees challenged the Secretary of the Interior's use of an employment preference for "members of Federally recognized tribes" in BIA hiring and promotions. The Supreme Court explained the importance of the participation of tribal members—that is tribal citizens--in the management of the Bureau of Indian Affairs: "One of the primary means by which self-government would be fostered and the Bureau made more responsive was to increase the participation of tribal Indians in the BIA operations.... The various services on the Indian reservations are actually local rather than Federal services and are comparable to local municipal and county services...."
The Supreme Court upheld the employment "criterion" of Indians as tribal members, which is "reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups.... The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be 'an Inhabitant of that State for which he shall be chosen,' Art. I, § 3, cl. 3."
The Supreme Court explained, the power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, § 8, cl. 3, provides Congress with the power to 'regulate Commerce... with the Indian Tribes,' and thus, to this extent, singles Indians out as a proper subject for separate legislation. Article II, § 2, cl. 2, gives the President the power, by and with the advice and consent of the Senate, to make treaties. This has often been the source of the Government's power to deal with the Indian tribes."
Constitutional Limits and Requirements
America's treaty and trust relationship with Indian nations requires that the United States follow the Constitution. For example, in United States v. Sioux Nation, 448 U.S. 371 (1980), the Supreme Court held that the United States acted unconstitutionally in violation of the 5th Amendment when Congress took the Black Hills from the Sioux Nation.
In Rice v. Cayetano, 528 U.S. 495 (2000), the Supreme Court addressed the State of Hawaii's voting eligibility limits to "Hawaiians” for the Office of Hawaiian Affairs, a state office. The Court recognized that: “Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs." The Court explained that in Indian tribe elections voting eligibility for tribal members, that is tribal citizens, is a matter of self-government under our status as Native sovereigns. So, the "tribal member" criterion in Morton was political in nature, not racial. By contrast, the Supreme found that while “OHA has a unique position under state law, it is just as apparent that it remains an arm of the State." State voting eligibility for Hawaiians in State elections for state officeholders were not “reasonably and rationally tied to self-government" for native Hawaiians, so the Court struck down the voting limitations.
The Indian housing block grant vs. tribal enrollment
The United States Census collects broad information about the American population to determine economic and political trends, and is used for apportionment of congressional districts. The data collected about Native Americans is based upon racial classifications as self-identified by the American people, single race or mixed race. Using Census raced based statistics, the Secretary of the Treasury explains:
Tribal population data
"For purposes of the payments based on Tribal population, Treasury will refer to the Tribal population data used by the Department of Housing and Urban Development (HUD) in connection with the Indian Housing Block Grant (IHBG) program. This population data is based on Census Bureau data.... Treasury will follow the IHBG practice of calculating a payment amount for each Tribal government based on single-race and then multi-race data and allocating the larger calculation amount for each Tribe."
In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Supreme Court held that the Federal Government's use of race based criteria is subject to “strict scrutiny" and must be narrowly tailored to serve the most compelling reasons."
In the allocation of Tribal Government Coronavirus Relief Funds, Treasury's use of Native American race based Census classifications is contrary to law. The rationale for using the “race" based criteria is just this: "Tribal governments are familiar with it and have already been provided the opportunity to scrutinize and challenge its accuracy."
Yes, many Indian tribes challenge the accuracy of the "race" based IHBG population statistics because it is based upon unreviewed, unsourced self-identification. That is no justification for the use of Census "race" based criteria, when the tribal member-tribal citizen political classification based upon Indian sovereignty is known and available. In the course of tribal government business, Indian nations and tribes maintain tribal member enrollment records as public records necessary for voting, tribal provision of services, land assignments and other governmental purposes. Tribal enrollment records qualify as public record evidence under the Federal Rules of Evidence.
Accordingly, the Constitution-5th and 14th Amendments-mandate that Treasury use tribal enrollment as the criteria for Federal funds allocation because tribal membership is a recognized political status flowing from the "inherent sovereignty of Indian nations and tribes. With political status criteria available, the Constitution prohibits Treasury's use of race based criteria.
Note to Treasury: Please follow the Constitution and our Treaties.
Rodney Bordeaux is president of the Rosebud Sioux Tribe.