America the balkanized: American Indian groups and their political allies, exploiting the Homeland Security issue, are conducting a quiet power grab.

A proposed amendment to the Homeland Security Act of 2002 would imperil the constitutionally guaranteed rights of hundreds of thousands of American citizens. It could also lead to literally hundreds of small, self-contained sovereign nations on American soil.

S. 578, the "Tribal Government Amendments to the Homeland Security Act of 2002," would formally recognize "the inherent sovereign authority of an Indian tribal government ... to enforce and adjudicate violations of applicable criminal, civil, and regulatory laws committed by any person on land under the jurisdiction of the Indian tribal government," except where forbidden by treaties or an act of Congress. The measure also recognizes "the inherent sovereignty" of each tribe "to establish its own form of government."

Senator Daniel Inouye (D-Hawaii), who sponsored the proposed amendment, told a gathering of Indian leaders last February that the measure was intended to make Indian tribal governments "as sovereign as any state in the union" by overturning Supreme Court decisions limiting tribal police and taxation powers.

Post-9/11 Opportunism 

More than 25 Indian tribes exercise jurisdiction over lands or waterways along our international borders; more than 260 miles of the roughly 7,400 miles of international borders fall under Indian jurisdiction. Furthermore, many potential terrorist targets--including dams, water works, oil and gas deposits, and nuclear plants--are located in what is called "Indian Country." Thus the text of S. 578 hardly exaggerates in saying that "involvement of tribal governments ... is essential to the comprehensive maintenance of the homeland security of the United States."

But as with so many other facets of the emerging Homeland Security apparatus, S. 578 is a product of vulgar opportunism. Senator Inouye, according to a summary of his February address published by an American Indian news service, "urged tribal leaders to capitalize on the focus on the war on terrorism" in order to press their claims of tribal sovereignty. In fact, the measure grew out of a proposal--"The Tribal Governance and Economic Enhancement Act"--that originated at a September 11,2001 meeting of tribal leaders.

"Homeland security presents an opportunity to secure a status under federal law that will not only recognize your powers and responsibilities as sovereign governments but will strengthen your position and your status in the family of governments that make up the United States," asserted Inouye. But the powers the measure seeks to grant to Indian governments would far exceed those of the state governments.

Article IV of the U.S. Constitution specifies that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." It also grants to the federal government the power to guarantee that each state would have "a republican form of government"--that is, a representative government, with a separation of powers built on the principle of law, and ruled by a written constitution. And it prohibits the federal government from creating a state "within the jurisdiction of any other State."

If enacted, S. 578 would violate all of these critical provisions. Unlike states, which are required to maintain republican governments, tribes would be permitted to establish any form of government they please--and they could do so within the territories of existing states.

Furthermore, tribal governments would have criminal, civil, and regulatory authority over "any person" within their jurisdiction--including non-Indians, who would have no political rights under tribal governments. In his July 30th testimony before the Senate Committee on Indian Affairs, Thomas B. Heffelfinger, U.S. attorney for the District of Minnesota, warned that the measure "would expand tribal criminal jurisdiction over non-Indians without adequately providing for common rights defendants expect in federal or state courts."

Tyranny at the Minority

"Many tribal leaders are wrapped up in the notion of sovereignty, which they say would make their tribes the equivalent of states," New Mexico attorney William J. Darling pointed out to THE NEW AMERICAN. "But the parallel just doesn't fit. To begin with, the tribal governments cover much smaller populations than those of even the smallest state. The Navajo reservation, for example, has about 130,000 people--and that's the largest tribal government, the one closest to a modern, functional government. The next largest reservation has about 11,000 people, and most reservations have fewer than 1,000."

According to the most recent census figures available, nearly half of the 800,000 people living in Indian reservation territories are non-Indians, Darling observes. "When land was opened for homesteading in the late 19th century, many Indians were given tracts with the intention of turning them into 'yeoman farmers,'" he informed THE NEW AMERICAN. "They often settled among non-Indian homesteaders, and some of the Indians ended up renting or selling their lands to non-Indians as well. The result is that in the western United States, many of the reservation lines were drawn in ways that resulted in having non-Indian majorities within Indian reservation territories."

To illustrate, Darling notes that three of New Mexico's 22 Indian reservations "have minority populations of roughly ten percent." A particularly extreme example can be found in California's Agua Caliente Reservation: Of the reservation's 19,000 residents, only 135 are Indians (according to the 1990 census). Under the proposed Indian sovereignty measure, the tribal governments ruling these tiny Indian minorities would be given plenary jurisdiction over the non-Indian majorities.

Darling warns that "the tribal governments are not subject to the same standards of due process and equal protection under the law that our federal, state, and local governments have to observe. Many of them also claim sovereign immunity from civil suits, which means that there would be no civil recourse to abusive actions taken by tribal governments." What about seeking redress through tribal courts? "As a rule, tribal courts aren't independent bodies," Darling notes. "The judges serve at the pleasure of tribal councils and executives, which means that the other tribal rulers are able to ignore rulings that go against them. And in many cases both tribal law and court procedures are unwritten, ill-defined, or improvised as the need arises."

Tribal sovereignty would have an impact far beyond the roughly 400,000 non-Indians living in the amorphous region called "Indian Country."

"This would affect many, many more people than those who live within reservation boundaries," Darling predicts. "Here in New Mexico, for example, it's possible for out-of-state travelers to pass through several reservation boundaries simply traveling on state and interstate highways. If this measure were to be enacted, people traveling on those roads would be subject to the jurisdiction of each reservation they pass through, subject to their often arbitrary or contradictory laws, and liable to be cited or arrested by tribal police and put on trial before tribal courts. And this sort of thing could happen practically anywhere across the country."

Landgrab

The continental United States is honeycombed with so-called sovereign Indian lands. Citing Clinton-era executive orders and regulatory decrees, journalist John Elvin has pointed out that "vast tracts of national forests, national parks, and Bureau of Land Management properties are being turned over to the tribes, coast-to-coast, border-to-border, with little or no real public notice.... What's not being "given back,' the tribes are buying up with huge profits from tax-free casinos." Tribal leaders also invest a large share of their casino profits in political contributions; witness the hundreds of thousands of dollars recently given to California gubernatorial candidate Cruz Bustamante by the Pechanga Band of Mission Indians.

Across the nation, tribal leaders--often people with little or no provable Indian ancestry--are following a very lucrative three-stage plan: File an extravagant lawsuit against property owners, claiming that they live on stolen Indian land; demand an exorbitant cash payoff; and then offer to settle for a small parcel of sovereign territory upon which to build a casino. This process would be greatly facilitated if the federal government gives tribal courts jurisdiction over non-Indians residing on or near reservation land.

It's also worth pointing out that many self-styled sovereign Indian leaders--among them the Pequots and New York Oneida Nation--have been seeking recognition from the United Nations. And in 1994 the UN dispatched Cuban official Miguel Alfonso Martinez to investigate Indian grievances.

Accordingly, it's reasonable to conclude that our national sovereignty is being critically undermined by Washington's perverse determination to encourage extravagant claims of Indian sovereignty--and its quiet campaign to validate those claims in law.