Steve Russell

Government in the Land of Oz

I seldom point to the colonial governments as an example for tribal governments, but we could learn a lot from the ongoing comedy in Washington. After all, a negative example is still an example.

Checks and balances are a good thing. Without them, too much power gets concentrated in too few hands. I’ve suggested that tribal governments could consider splits of authority instead of or in addition to those that come recommended by the US Constitution.

The US Constitution sets out three branches and gives them each something that can check the others. Congress has the purse. The President has the military. The Courts have the last word on what the Constitution means. This last power is not on the face of the document, and all of the Founders did not agree, but Chief Justice John Marshall pulled it out of his hat and it is seldom questioned in modern times. Sort of like federal Indian law.

Federal Indian control law, as some Indian lawyers call it, is wicked complicated. It is complicated because it is intellectually incoherent, based on values the US purports to despise and policy goals rendered moot by events. Because it is wicked complicated, and because it affects a relatively tiny and powerless group of people, few policy wonks bother to learn much about it.

Even judges are reluctant to expend much energy out at the margins, so we get Justice William Rehnquist, in the 1978 case of Oliphant v. Suquamish Tribe relying on racist stereotype to remove all tribal criminal jurisdiction over non-Indians.

Rehquist’s error lives on in the failure of Congress to reauthorize the Violence Against Women Act, principally over VAWA reinstating tribal court jurisdiction over non-Indian men who come on Indian land and abuse Indian women. This amendment was inserted after finding that non-Indian men abuse most Indian women who are abused in an intimate relationship. The state courts have no jurisdiction and the federal courts are disinterested in simple assaults until they become homicides.

Republicans have raised two other objections to VAWA. It protects women in same sex relationships and it continues a program of giving special visas to abused women whose immigration status depends on the status of their abuser.

In my opinion, the Republicans are in fact opposed to VAWA because they are no more persuaded now than they used to be that it’s a proper use of federal power, but they can no longer say that, so they hold it up by inviting the Democrats to throw lesbians, immigrants, and Indian women under the bus.

The Congress that failed to reauthorize VAWA is the least productive in US history.

In the House, the reason is the Hastert Rule, named after former Speaker Dennis Hastert, although originated by former Speaker Newt Gingrich. This “rule” states that nothing shall come to the floor for a vote unless it enjoys majority support in the Republican caucus. When Democrat Nancy Pelosi was Speaker, she did not do the same from the other side, instead being interested in just whether the votes were there to pass the bill.

Current Speaker John Boehner just avoided the “fiscal cliff” by ignoring the Hastert Rule and passing a compromise from the Senate with moderate Republican and moderate Democratic votes. This cost him with the Tea Party, which enjoys a Hastert Rule veto.

Meanwhile, the Senate is largely impotent because of filibuster abuse.

There’s a certain romance to the filibuster: a lone Senator, or a small tag-team, standing for principle in the face of a majority and talking until hoarse, complete with what used to be the obligatory catheter to avoid bathroom breaks and soft sole shoes. That romance is dead in our times, when the simple utterance of the word “filibuster” triggers a 60-vote cloture requirement to proceed. Fifty-one out of 100 is no longer enough.

Is this the fault of both sides? No. Do the arithmetic yourself.

Then the US government careens off the artificial crisis of the “fiscal cliff” and into a new artificial crisis of the “debt ceiling.”

We are told, “Obama wants a blank check.”

Not exactly. Only Congress can spend money, and money bills originate in the House. Having spent more money than they had, the same House now wishes to refuse authority to pay the bills unless they get policy victories they can’t get by normal processes.

The 14th Amendment says the debt of the US shall not be questioned, so the President could pay the bills and invite impeachment. Or mint a trillion dollar platinum coin for the Federal Reserve. Or pay with IOUs, with scrip….which, truth be told, is no different from our fiat currency Federal Reserve Notes. All that backs our money is the promise of the US to pay, and the House wants to violate that promise.

The lesson for tribal governments formerly lectured about the superiority of the “White Father” is now straight from The Wizard of Oz. Pay no attention to the man behind the curtain.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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Government in the Land of Oz

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