MGJR Volume 2 2014 | Page 27

For American Indians, ‘64 Bill Was Justice Delayed

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though, was the inadequacy of the Civil Rights Act to protect basic freedoms in Indian Country. The Bill of Rights limited Congress in what laws it could make; the 14th Amendment and the states and other entities. But tribal governments were not a part of that constitutional thread. 

So Congress set out to “fix” that problem by enacting the Indian Civil Rights Act of 1968. The act applies some of the Bill of Rights to tribal governments – some, but not all. Some tribal governments are directed by a religious authority – so the separation of church and state doesn’t work. 

The Indian Civil Rights Act had another problem. Which government would enforce its provisions? The original legislation sent civil rights issues to federal courts for review. But in 1978 the Supreme Court, in Santa Clara Pueblo v. Martinez, ruled that the only acceptable federal review was for a person in custody, a writ of habeas corpus. The court said every other civil rights dispute must be resolved in a tribal forum. That meant that tribes, as governments, decided for themselves the limits of free speech, press, or even discrimination. Tribes defined the role of an individual in a tribal society.

To me, dissent is the essence of civil society; it’s just like oil in an engine. Without oil, the engine will be destroyed. Without dissent, our democracy won’t survive. Tribes get that. And have for centuries.

One of my favorite illustrations of this comes from my own tribe. There is a place called “Buffalo Lodge.” The way Shoshone-Bannock tribal government is structured there are multiple layers of authority. The tribal council, like Congress, has some powers but others are reserved for the “General Council,” or every adult member of the tribe. 

I was a teenager the first time I participated in general council. This is true democracy, a forum full of the people's passion, humor, and thoughtfulness. Tribal members would line up to speak, standing at the mic, patiently waiting their turn. A few talked in Bannock, others in Shoshone, and some, like me, tried to make their points in English. The meeting lasted for hours, considerably longer than scheduled, because every member had the right to speak.

Once, I attended a controversial meeting where the outcome was all but certain. I went anyway, knowing in advance that I was in the minority. I still wanted to change people's minds and their votes. I took my turn, grabbed a microphone, made my pitch, and then later when the vote was called, watched as hands went into the air. I had swayed no one. I think the motion I opposed was approved by a margin of three hundred-and-something to three.

Still, I had my voice. And, at least, I presented an alternative course.  I had respect – based on my dissent, the essence of a civil right. What I had to say mattered (even if not adopted). This voice of dissent has been part of tribal governance from time immemorial. 

Ben Franklin understood this when he wrote: “The Indian men, when young, are Hunters and Warriors; when old, Counsellors [sic]; for all their Government is by the Counsel or Advice of the Sages; there is no Force; there are no Prisons; no Officers to compel Obedience; or inflict Punishment. Hence they generally study Oratory; the best speaker having the most influence.”

Every civil society needs dissent. Ideas get better when debated, when all people are given the respect of a fair hearing. As our communications technology moves faster and beyond traditional borders we more than ever need to find new ways to move beyond affirmation. We need to listen to those who make us cringe – and ultimately those who make us think. This is true for a country fairly equally divided by politics – as well as a globe partitioned by wealth.

We need a place like Buffalo Lodge. A place, virtual and physical, where people know they will have a say, even if, in the end, they're outvoted three hundred-and-something to three. g

 

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