by Adi Dynar

Lawful, peaceful protest is the bulwark of open and honest discussion of current issues. We see democracy at work every day on the premises of state capitols or capitol malls, where different speakers gather to voice their support or opposition for issues being debated at the legislature. This right of freedom of assembly and speech, and the right to petition the government for redress of grievances, has been jealously guarded by the Supreme Court under the First Amendment. On occasion, when a person has been denied this right, that person has had a clear right to go to federal court for redress of grievances.

But if you are Native American and want to lawfully and peacefully speak up about alleged fraud and mismanagement by the government of your federally recognized Indian tribe, your rights are not protected. You don’t even get to go to a federal court to seek redress.

That is what the Ninth Circuit said in the case of Jessica Tavares, a member of a California tribe, when she spoke up about alleged mismanagement of funds by her tribe. For speaking up against corruption, she was banished from tribal lands. When she pursued the matter in federal court, she was denied a day in court because the conduct she complained of arose on a reservation where the United States Constitution does not apply and does not protect her rights.

This absurd result—that the Constitution extends to protect individuals on military bases outside our country, but not to people living in pockets of California—was made possible by a 1978 Supreme Court decision called Santa Clara Pueblo v. Martinez, regarding the Indian Civil Rights Act (ICRA).

ICRA extended Bill of Rights protections to tribal reservations to ensure that Native Americans—all of whom are American citizens—are afforded the broad constitutional rights other Americans enjoy. But in Santa Clara Pueblo, the Supreme Court said that the only way to seek federal redress for a violation of ICRA is by seeking habeas corpus review in federal court. Habeas review, of course, is limited only to criminal matters.

But many of the rights specified in ICRA, are not susceptible of habeas review. For example, the right to just compensation in the case of a taking of property, or the right to freedom of speech, peaceable assembly, petition government for redress of grievances, are all civil, not criminal, matters. It makes no sense to assume that Congress, in enacting ICRA, meant to provide protection only for a small subset of the rights it listed in that law.

In Tavares’ case, the Ninth Circuit latched on to this habeas-only reading of ICRA to rule that Jessica Tavares’ “banishment” does not amount to “detention” in the criminal sense, and therefore, that she could not knock on the federal courthouse door when her civil rights were violated.

In practice, Santa Clara Pueblo has led to unchecked violations of civil rights on tribal reservations. No one doubts or denies the ability of tribal courts to act as honest, independent branches keeping political branches of tribal governments in check. But the reality under Santa Clara Pueblo is that there is nothing currently preventing tribal governments from committing wholesale violations of civil rights. Native Americans living on reservations therefore have virtually no recourse against such abuses, and even the act of peacefully speaking against such abuses with hopes of changing the status quo is chilled into virtual meaninglessness. Other, graver abuses go unaddressed, as we’ve seen, in child welfare matters, or schooling.

Jessica Tavares is the best spokesperson there is for her cause—she served on the tribal council and witnessed mismanagement and corruption with her own eyes. But, after her term in office expired, when she decided to remedy some of the abuses she saw by merely daring to speak about them, she was banished from her home.

The Goldwater Institute filed an amicus brief in the Supreme Court supporting Jessica Tavares. In it, the Institute urged the Court to take up Tavares’s case to consider overruling Santa Clara Pueblo and stop treating Native Americans as second-class American citizens. Our Constitution does not tolerate such government-imposed classes among citizens. The earliest we will find out whether the Court decided to take the case is March 26.

[Update: On March 26, the Supreme Court decided not to take the case.]

Adi Dynar is a Staff Attorney at the Goldwater Institute.

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