Native Americans – dwkcommentaries

Secretary Pompeo’s Reactions to U.S. Commission on Unalienable Rights’ Report

On July 16, Secretary of State Michael Pompeo gave an immediate response [1] to the Report of the U.S. Commission on Unalienable Rights that was summarized in a prior post. Now we look at some of the significant points of Pompeo’s response.

Pompeo’s Introduction by Chair Glendon’s

Chair Mary Ann Glendon said that the importance of the Commission’s work has been highlighted by several recent developments. First, Freedom House recently reported that “political and civil rights worldwide have declined this year for the 14th consecutive year and that half the world’s population – 4 billion people – currently live under autocratic or quasi-authoritarian regimes.”[3] Second, “some powerful countries are now openly challenging the basic premises of the great post-World War II human rights project, and by challenging the premises, they are undermining the already fragile international consensus behind the ideas that no nation should be immune from outside scrutiny of how it treats its own citizens and that every human being is entitled to certain fundamental rights simply by virtue of being human.” Third, “Another set of threats to human freedom and dignity are emerging in technological advances – artificial intelligence, biotechnology, data collection, sophisticated surveillance techniques.” Fourth, “millions of women and men are suffering arbitrary imprisonment, torture, and those women and men are looking to the United States as a beacon of hope and encouragement.”

Pompeo’s Speech

“These . . . unalienable rights . . . are a foundation upon which this country was built. They are central to who we are and to what we care about as Americans.”

“America’s founders didn’t invent the ‘unalienable rights,’ but stated very clearly in the Declaration of Independence that they are held as ‘self-evident’ that human beings were ‘created equal’ and ‘endowed by their Creator with certain unalienable rights… among [those] are Life, Liberty, and the Pursuit of Happiness.’”

“The report emphasizes foremost among these rights are property rights and religious liberty. No one can enjoy the pursuit of happiness if you cannot own the fruits of your own labor, and no society – no society can retain its legitimacy or a virtuous character without religious freedom.” (Emphasis added.)

“Our founders knew that faith was also essential to nurture the private virtue of our citizens.”

George Washington, in “his now famous letter from 1790, . . . to the Jews of Newport,. . . proudly noted that the United States ‘gives to bigotry no sanction, to persecution no assistance.’” But “our founders also knew the fallen nature of mankind. [As] Alexander Hamilton wrote in Federalist 10: ‘Men are ambitious, vindictive, rapacious.’ So in their wisdom, they established a system that acknowledged our human failings, checked our worst instincts, and ensured that government wouldn’t trample on these unalienable rights.”

“Limited government structured into our documents protects these rights. As the [Commission] report states, ‘majorities are inclined to impair individual freedom, and public officials are prone to putting their private preferences and partisan ambitions ahead of the public interest.’”

In 1838, Abraham Lincoln, then a 28-year-old lawyer, gave a moving speech to the local young man’s lyceum in Springfield, Illinois, when he said, ‘We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us.’

“This is still true of America today. America is fundamentally good and has much to offer the world, because our founders recognized the existence of God-given, unalienable rights and designed a durable system to protect them.”

“The . . . societal upheavals that are currently roiling our nation . . .directly ties to our ability to put our founding principles at the core of what we do as Americans and as diplomats all across the world.”

[We must admit, however,] “that at our nation’s founding our country fell far short of securing the rights of all. The evil institution of slavery was our nation’s gravest departure from these founding principles. We expelled Native Americans from their ancestral lands. And our foreign policy, too, has not always comported with the idea of sovereignty embedded in the core of our founding.”

“But . . . the nation’s founding principles gave us a standard by which we could see the gravity of our failings and a political framework that gave us the tools to ultimately abolish slavery and enshrine into law equality without regard to race. . . . From Seneca Falls, to Brown vs. Board of Education, to the peaceful marches led by Dr. Martin Luther King Jr., Americans have always laid claims to their promised inheritance of unalienable rights.”

“The New York Times’s 1619 Project – so named for the year that the first slaves were transported to America – wants you to believe that our country was founded for human bondage, that America’s institutions continue to reflect the country’s acceptance of slavery at our founding. . . [and] that Marxist ideology [correctly says] America is only the oppressors and the oppressed. [This 1619 Project] is a slander on our great people. Nothing could be further from the truth of our founding and the rights about which this report speaks.” (Emphasis added.)

The Commission rejects these notions and “reminds us [of] a quote from Frederick Douglas, himself a freed slave, who saw the Constitution as a ‘glorious, liberty document.’”

“If we truly believe . . . that rights are unalienable, inviolate, enduring, indeed, universal, just as the founders did, then defending them ought to be the bedrock of our every diplomatic endeavor.”

“Our dedication to unalienable rights doesn’t mean we have the capacity to tackle all human rights violations everywhere and at all times. Indeed, our pursuit of justice may clash with hard political realities that thwart effective action.”

“Americans have not only unalienable rights, but also positive rights, rights granted by governments, courts, multilateral bodies. Many are worth defending in light of our founding; others aren’t.”

Prioritizing which rights to defend is also hard. [According to a research group, there are] 64 human rights-related agreements, encompassing 1,377 provisions, between the United Nations and the Council of Europe alone. That’s a lot of rights. And the proliferation of rights is part of the reason why this report is so important.” This report “has provided us the [following] essential questions to ask:

Are our foreign policy decisions rooted in our founding principles?
Are the decisions consistent with our constitutional norms and procedures?
Are they rooted in the universal principles of the Universal Declaration of Human Rights [UDHR]?
Does a new rights claim . . .represent a clear consensus across different traditions and across different cultures, as the Universal Declaration did, or is it merely a narrower partisan or ideological interest?”

“The great and noble human rights project of the 20th century, [however.] is in crisis. Authoritarian regimes perpetrate gross human rights violations every day, all around the world. Too many human rights advocacy groups have traded proud principles for partisan politics. And we see multilateral human rights bodies failing us. The United Nations Human Rights Council does the bidding of dictators and averts its gaze from the worst human rights offenses of our times. [In addition,] international courts too have largely abandoned unalienable rights. The International Criminal Court is training its sights on Americans and Israelis, not the ayatollahs of the world. And the incurious media rarely examines any of these failings.”(Emphasis added.)

“The vital 20th century human rights project has come unmoored, and it needs a re-grounding. The Commission’s work marks an important contribution to America’s effort to address this human rights crisis, and it’s a good time to do so.”

[As the report says,] “we must cultivate the ‘seedbeds of human rights.’ Free and flourishing societies cannot be nurtured only by the hand of government. They must be nurtured through patriotic educators, present fathers and mothers, humble pastors, next-door neighbors, steady volunteers, honest businesspeople, and so many other faithful, quiet citizens.” (Emphasis added.)

“We have the responsibility to educate and advocate. Our diplomatic posts all over the world have human rights officers working to promote American values. We can shine a light on abuses, and as we do when we issue our annual reports, we take stock of the world’s efforts on religious freedom, on human rights, and on human trafficking.” (Emphasis added.)

“We too can empower the people of other nations to further their social and economic rights. Our USAID does this essential work, as does our W-GDP program, which helps women flourish as entrepreneurs. Women, sadly, suffer the most human rights abuses. We can help them do better.” (Emphasis added.)

“We can work productively too with other nations. We’ve done that. We’ve worked with 60-plus nations to help the Venezuelan people recover democracy from the Maduro dictatorship.”

We also “ have punitive tools too, such as sanctions that we’ve levied on human rights abusers in Iran and in Cuba, and a recent advisory that we put out about Xinjiang and companies doing business there. We want to make sure that no American business is knowingly benefiting from slave labor.” (Emphasis added.)

“But to do so effectively, we must insist on the rightness and the relevance of America’s founding principles. Surely, if America loses them, she loses her soul and our capacity to do good around the world.”

“I am confident that the American star will shine across the heavens, so long as we keep a proper understanding of unalienable rights at the center of our unending quest to secure freedom for our own people and all of mankind. The report that you worked on will ensure that we have a better chance to accomplish that.”

Glendon-Pompeo Conversation

Immediately after Pompeo’s speech, Chair Glendon and Pompeo had a brief conversation. One of her questions was: “Why is human rights advocacy is such an important part of our national interest?”

Pompeo responded, “Our capacity to have influence around the world . . . stems from our confidence in ourselves and our deep commitment to the fact that this nation is exceptional, because we rallied around this idea of unalienable rights. [We have developed annual ministerial meetings to gather] religious leaders of all faiths from all around the world. It’s the largest gathering of religious leaders every year to talk about these set of rights and religious freedom. . . . Some two-thirds of the people in the world live in places that are extremely challenged with the absence of religious freedom and religious liberty, the simple chance to exercise their conscientious views on faith.” (Emphasis added.)

Yet Another Pompeo Speech

On July 17^th (the very next day after the above speech], Pompeo and his wife were in West Des Moines, Iowa for a speech—”My Faith, My Work, My Country”[3]— at the Family Leader Summit.[4] Here a few things he said.

“We [at the State Department] have a responsibility to keep you all safe. We advocate too for American businesses abroad, and help create jobs in every state in the union. And we represent your principles. We’ve executed a foreign policy that American families in Des Moines, in Dubuque, and in Davenport can believe in. It’s a pro-national security foreign policy focused on America. It’s a pro-religious freedom foreign policy. And it’s a 100 percent pro-life foreign policy.” (Emphasis added.)

Later, he added, “America sets the tone for the rest of the world in this respect, and our administration has defended the rights of unborn like no other administration in history. Abortion quite simply isn’t a human right. It takes a human life. You all – you all know this. The Psalmist says in Psalm 139: ‘You knit me together in my mother’s womb.’ This is when life begins, full stop. So we’ve reinstated the Mexico City Policy, so that not a single dime of American taxpayer money will ever go to a foreign NGO that performs active abortions anywhere in the world. In the fall of last year, . . . Secretary Azar at Health and Human Services and I, we mobilized 20 countries to deliver a joint statement at the UN criticizing pro-abortion language in UN documents. This has not happened before. We said clearly that “there is no international right to an abortion.” (Emphasis added.)

He also had extensive negative comments about China and Iran and positive words about Israel.

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[1] State Dep’t, Pompeo Speech: Unalienable Rights and the Securing of Freedom (July 16, 2020)[“Pompeo Speech”]. (The above post highlights some points for discussion in a subsequent post.) See also Pompeo, American diplomacy must again ground itself in the nation’s founding principles, Wash. Post (July 16, 2020); Assoc. Press, Pompeo Says US Should Limit Which Human Rights It Defends, N.Y. Times (July 16, 2020)

[2] Freedom House, Freedom in the World 2020: A Leaderless Struggle for Democracy..

[3] State Dep’t, Pompeo Speech: My Faith, My Work, My Country (July 17, 2020).

[4] The Family Leader, which is based in Urbandale IA, is an organization that is focused on marriage as “a permanent lifelong commitment between a man and a woman;” on sanctity of life for “protection of life from conception to natural death;” on affirming “ sexual relations within the bond of marriage, and oppose distortions of sexuality or special rights to those practicing distorted sexual behavior.” (The Family Leader, Issues we are focused on.)

Caveats to Celebration of the American Declaration of Independence

July 4, 1776, is a treasured date in American history with the Continental Congress’ adoption of the Declaration of Independence. It stirringly says, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.”

The creation and adoption of this document deserves the annual celebration it receives in the United States of America and around the world.

There, however, should be caveats to that celebration.

First, as others have pointed out, the Declaration did not condemn slavery which is not surprising since there were many slaves in the colonies.

Moreover, as Robert G. Parkinson, Assistant Professor of History at Binghamton University, argues, the failure to condemn slavery was no accident.[1]

First, the draft of the Declaration by Thomas Jefferson, a slave owner himself, contained an attack on King George III for imposing slavery on the colonists, but those words were deleted in the final document by the Continental Congress.

Second, the Declaration’s lengthy bill of particulars against the King that justified the colonists’ declaration of independence ended with these words:

“He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” (Emphasis added.)

According to Parkinson, “in the context of the 18th century, ‘domestic insurrections’ refers to rebellious slaves.” This provision in the bill of particulars was inserted, says Parkinson, “because in the 15 months between the Battles of Lexington and Concord and independence, reports about the role African-Americans and Indians would play in the coming conflict was the most widely discussed news. And British officials all over North America did seek the aid of slaves and Indians to quell the rebellion.”[2]

Important in this “inciting” of “domestic insurrections” was the November 14, 1775, proclamation by the Royal Governor of the Colony of Virginia offering freedom to slaves who would leave their masters and join the British side. Although only an estimated 800 slaves immediately joined the British in Virginia as a result of this Proclamation, eventually as many as 30,000 slaves throughout the colonies did so and worked as soldiers, laborers, pilots, cooks, and musicians for the British.[3]

After the end of the American Revolutionary War in 1783, the British evacuated all of their personnel from Manhattan plus 3,000 former black slaves or Black Loyalists who were listed in “The Book of Negroes.”[4]

Parkinson’s fascinating article has created another project for me: reading his book, “The Common Cause: Creating Race and Nation in the American Revolution” (2016); re-reading Pauline Maier’s book, “American Scripture: Making the Declaration of Independence” (1997); and writing blog posts to summarize the results of this and other additional research.

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[1] Parkinson, Did a Fear of Slave Revolts Drive American Independence?, N.Y. Times (July 4, 2016).

[2] The Fate of Black British Loyalists in the American Revolutionary War, dwkcommentaries.com (Feb. 19, 2013).

[3] Ibid.

[4] The American Revolutionary War’s End in New York City, 1783, dwkcommentaries.com (Oct. 14, 2012); The Fate of Black British Loyalists in the American Revolutionary War, dwkcommentaries.com (Feb. 19, 2013). The historical “Book of Negroes” became an inspiration for a novel with the same name (in Canada (but “Someone Knows My Name” in the U.S.) by Canadian author, Lawrence Hill. (The Black British Loyalists Through the Eyes of Novelist Lawrence Hill, dwkcommentaries.com Feb. 21, 2013): Further Reflections on “The Book of Negroes” Novel, dwkcommentaries.com (Feb. 23, 2013).)

President Obama Welcomes New U.S. Citizens with Inspiring Challenge

As noted in prior posts, the final step for someone to become a naturalized U.S. citizen is to attend a ceremony in which the individual takes an oath of allegiance to the United States of America and officially is declared to be a U.S. citizen. This is after such an individual meets the requirements of U.S. law through submission of an application with various aspects of personal information and an interview for vetting that information.[1]

Such a ceremony took place on December 15, 2015, at Washington, D.C.’s Rotunda of the National Archives Museum, where the original Constitution, Declaration of Independence and Bill of Rights are permanently displayed. December 15 also was the 224^th anniversary of the ratification of the Bill of Rights.

On this occasion President Barack Obama provided inspiring words to welcome 31 new U.S. citizens. Above are photographs of the President giving his speech and of some of the new citizens. Here is what Obama said.[2]

“To my fellow Americans, our newest citizens. You are men and women from more than 25 countries, from Brazil to Uganda, from Iraq to the Philippines. You may come from teeming cities or rural villages. You don’t look alike. You don’t worship the same way. But here, surrounded by the very documents whose values bind us together as one people, you’ve raised your hand and sworn a sacred oath. I’m proud to be among the first to greet you as “my fellow Americans.”

“What a remarkable journey all of you have made. And as of today, your story is forever woven into the larger story of this nation. . . . [Y]ou still have a demanding and rewarding task ahead of you — and that is the hard work of active citizenship. You have rights and you have responsibilities.”

“Just about every nation in the world, to some extent, admits immigrants. But there’s something unique about America. We don’t simply welcome new immigrants, we don’t simply welcome new arrivals — we are born of immigrants. That is who we are. Immigration is our origin story. And for more than two centuries, it’s remained at the core of our national character; it’s our oldest tradition. It’s who we are. It’s part of what makes us exceptional.”

“[U]nless your family is Native American, one of the first Americans, all of our families come from someplace else. The first refugees were the Pilgrims themselves — fleeing religious persecution, crossing the stormy Atlantic to reach a new world where they might live and pray freely. Eight signers of the Declaration of Independence were immigrants. And in those first decades after independence, English, German, and Scottish immigrants came over, huddled on creaky ships, seeking what Thomas Paine called ‘asylum for the persecuted lovers of civil and religious liberty.’”

“Down through the decades, Irish Catholics fleeing hunger, Italians fleeing poverty filled up our cities, rolled up their sleeves, built America. Chinese laborers jammed in steerage under the decks of steamships, making their way to California to build the Central Pacific Railroad that would transform the West — and our nation. Wave after wave of men, women, and children — from the Middle East and the Mediterranean, from Asia and Africa — poured into Ellis Island, or Angel Island, their trunks bursting with their most cherished possessions — maybe a photograph of the family they left behind, a family Bible, or a Torah, or a Koran. A bag in one hand, maybe a child in the other, standing for hours in long lines. New York and cities across America were transformed into a sort of global fashion show. You had Dutch lace caps and the North African fezzes, stodgy tweed suits and colorful Caribbean dresses.”

“And perhaps, like some of you, these new arrivals might have had some moments of doubt, wondering if they had made a mistake in leaving everything and everyone they ever knew behind. So life in America was not always easy. It wasn’t always easy for new immigrants. Certainly it wasn’t easy for those of African heritage who had not come here voluntarily, and yet in their own way were immigrants themselves. There was discrimination and hardship and poverty. But, like you, they no doubt found inspiration in all those who had come before them. And they were able to muster faith that, here in America, they might build a better life and give their children something more.”

“Just as so many have come here in search of a dream, others sought shelter from nightmares. Survivors of the Holocaust. Soviet Refuseniks. Refugees from Vietnam, Laos, Cambodia. Iraqis and Afghans fleeing war. Mexicans, Cubans, Iranians leaving behind deadly revolutions. Central American teenagers running from gang violence. The Lost Boys of Sudan escaping civil war. They’re people like Fulbert Florent Akoula from the Republic of Congo, who was granted asylum when his family was threatened by political violence. And today, Fulbert is here, a proud American.”

“We can never say it often or loudly enough: Immigrants and refugees revitalize and renew America. Immigrants like you are more likely to start your own business. Many of the Fortune 500 companies in this country were founded by immigrants or their children. Many of the tech startups in Silicon Valley have at least one immigrant founder.”

“Immigrants are the teachers who inspire our children, and they’re the doctors who keep us healthy. They’re the engineers who design our skylines, and the artists and the entertainers who touch our hearts. Immigrants are soldiers, sailors, airmen, Marines, Coast Guardsmen who protect us, often risking their lives for an America that isn’t even their own yet. As an Iraqi, Mohammed Ibrahim Al Naib was the target of death threats for working with American forces. He stood by his American comrades, and came to the U.S. as a refugee. And today, we stand by him. And we are proud to welcome Mohammed as a citizen of the country that he already helped to defend.”

“We celebrate this history, this heritage, as an immigrant nation. And we are strong enough to acknowledge, as painful as it may be, that we haven’t always lived up to our own ideals. We haven’t always lived up to these documents.”

From the start, Africans were brought here in chains against their will, and then toiled under the whip. They also built America. A century ago, New York City shops displayed those signs, “No Irish Need Apply.” Catholics were targeted, their loyalty questioned — so much so that as recently as the 1950s and ‘60s, when JFK . . . [ran for office], he had to convince people that his allegiance wasn’t primarily to the Pope.”

“Chinese immigrants faced persecution and vicious stereotypes, and were, for a time, even banned from entering America. During World War II, German and Italian residents were detained, and in one of the darkest chapters in our history, Japanese immigrants and even Japanese-American citizens were forced from their homes and imprisoned in camps. We succumbed to fear. We betrayed not only our fellow Americans, but our deepest values. We betrayed these documents. It’s happened before.”

“And the biggest irony of course is that those who betrayed these values were themselves the children of immigrants. How quickly we forget. One generation passes, two generation passes, and suddenly we don’t remember where we came from. And we suggest that somehow there is ‘us’ and there is ‘them,’ not remembering we used to be ‘them.’”

“On days like today, we need to resolve never to repeat mistakes like that again. We must resolve to always speak out against hatred and bigotry in all of its forms — whether taunts against the child of an immigrant farm worker or threats against a Muslim shopkeeper. We are Americans. Standing up for each other is what the values enshrined in the documents in this room compels us to do -– especially when it’s hard. Especially when it’s not convenient. That’s when it counts. That’s when it matters — not when things are easy, but when things are hard.”

“The truth is, being an American is hard. Being part of a democratic government is hard. Being a citizen is hard. It is a challenge. It’s supposed to be. There’s no respite from our ideals. All of us are called to live up to our expectations for ourselves — not just when it’s convenient, but when it’s inconvenient. When it’s tough. When we’re afraid. The tension throughout our history between welcoming or rejecting the stranger, it’s about more than just immigration. It’s about the meaning of America, what kind of country do we want to be. It’s about the capacity of each generation to honor the creed as old as our founding: “E Pluribus Unum” — that out of many, we are one.”

“Scripture tells us, ‘For we are strangers before you, and sojourners, as were all our fathers.’ In the Mexican immigrant today, we see the Catholic immigrant of a century ago. In the Syrian seeking refuge today, we should see the Jewish refugee of World War II. In these new Americans, we see our own American stories — our parents, our grandparents, our aunts, our uncles, our cousins who packed up what they could and scraped together what they had. And their paperwork wasn’t always in order. And they set out for a place that was more than just a piece of land, but an idea.”

“America: A place where we can be a part of something bigger. A place where we can contribute our talents and fulfill our ambitions and secure new opportunity for ourselves and for others. A place where we can retain pride in our heritage, but where we recognize that we have a common creed, a loyalty to these documents, a loyalty to our democracy; where we can criticize our government, but understand that we love it; where we agree to live together even when we don’t agree with each other; where we work through the democratic process, and not through violence or sectarianism to resolve disputes; where we live side by side as neighbors; and where our children know themselves to be a part of this nation, no longer strangers, but the bedrock of this nation, the essence of this nation.”

“More than 60 years ago, at a ceremony like this one, Senator John F. Kennedy said, ‘No form of government requires more of its citizens than does the American democracy.’ Our system of self-government depends on ordinary citizens doing the hard, frustrating but always essential work of citizenship — of being informed. Of understanding that the government isn’t some distant thing, but is you. Of speaking out when something is not right. Of helping fellow citizens when they need a hand. Of coming together to shape our country’s course.”

And that work gives purpose to every generation. It belongs to me. It belongs to the judge. It belongs to you. It belongs to you, all of us, as citizens. To follow our laws, yes, but also to engage with your communities and to speak up for what you believe in. And to vote — to not only exercise the rights that are now yours, but to stand up for the rights of others.

“Birtukan Gudeya is here [today] from Ethiopia. She said, ‘The joy of being an American is the joy of freedom and opportunity. We have been handed a work in progress, one that can evolve for the good of all Americans.’”

“That is what makes America great — not just the words on these founding documents, as precious and valuable as they are, but the progress that they’ve inspired. If you ever wonder whether America is big enough to hold multitudes, strong enough to withstand the forces of change, brave enough to live up to our ideals even in times of trial, then look to the generations of ordinary citizens who have proven again and again that we are worthy of that.”

“That’s our great inheritance — what ordinary people have done to build this country and make these words live. And it’s our generation’s task to follow their example in this journey — to keep building an America where no matter who we are or what we look like, or who we love or what we believe, we can make of our lives what we will.”

“You will not and should not forget your history and your past. That adds to the richness of American life. But you are now American. You’ve got obligations as citizens. And I’m absolutely confident you will meet them. You’ll set a good example for all of us, because you know how precious this thing is. It’s not something to take for granted. It’s something to cherish and to fight for.”

“Thank you. May God bless you. May God bless the United States of America.”

And I say, thank you, Mr. President, for a necessary and inspiring message to us all. It echoes some of the points recently made by Minneapolis clergy that were discussed in a recent post.

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[1] Minnesota Welcomes New Citizens (June 8, 2015); Naturalized U.S. Citizens: Important Contributors to U.S. Culture and Economy (June 7, 2015).

[2] White House, Remarks by the President at Naturalization Ceremony (Dec. 15, 2015); National Archives, Press Release: President Obama to Deliver Keynote Address at National Archives Naturalization Ceremony on December 15 (Dec.11, 2015); Harris & Goodstein, Obama Counters Anti-Muslim Talk by Welcoming New Citizens, N.Y. Times (Dec. 15, 2015).

“Get Home Safely”

Last week I was moved to tears when I saw the short film, “Get Home Safely.” It distills into 10 rules what is often referred to as “the Conversation” that African-American parents have with their children about encounters with the police. The goal of these rules and “the conversation” is survival. Here are the film’s rules:

“1. Be polite and respectful when stopped by the police. Keep your mouth closed.

2. Remember that your goal is to get home safely. If you feel that your rights have been violated, you and your parents have the right to file a formal complaint with your local police jurisdiction.

3. Don’t, under any circumstance, get into an argument with the police.

4. Always remember that anything you say or do can be used against you in court.

5. Keep your hands in plain sight and make sure the police can see your hands at all times.

6. Avoid physical contact with the police. No sudden movements, and keep hands out of your pockets.

7. Do not run, even if you are afraid of the police.

8. Even if you believe that you are innocent, do not resist arrest.

9. Don’t make any statements about the incident until you are able to meet with a lawyer or public defender.

10. Stay calm and remain in control. Watch your words, body language and emotions.”

Merely stating the rules is moving when you realize their importance. Even more moving is to see young African-American boys and girls stating the rules in the film.

The film was released earlier this year in response to the need for African-American communities to protect their children from police violence, justified or unjustified. A Native American woman told me that her parents gave her essentially the same rules when she was a girl and that she still follows these rules today in her 50’s.

These rules are also needed for all children and people, regardless of race and age. For example, recently in a Detroit suburb, a white 17-year old boy was uncooperative with a police officer who stopped the teen’s car for flashing bright lights at night. The incident escalated, and the teenager ended up being shot and killed by the police officer.

The film was produced by PBS station WFYI of Indianapolis, Indiana in partnership with the city’s Christian Theological Seminary and The SALT Project, a nonprofit film producer, and with Chicago’s Trinity United Church of Christ. Thanks to them for producing this important film.

Congress Passes Violence Against Women Act of 2013

On February 28th the U.S. House of Representatives passed the Senate version of the reauthorization of the Violence Against Women Act. The vote was 286 to 138. The majority was comprised of 199 Democrats and 87 Republicans. All of the 138 negative votes were Republicans while 7 other Republicans, including Speaker John Boehner, did not vote.

This House action came immediately after the House had rejected a weaker version offered by Minority Leader Eric Cantor, 166-257. The prevailing negative votes came from 197 Democrats and 60 Republicans.

This action is significant in several respects.

First, the Act includes for the first time protection of gay, bisexual or transgender female victims of domestic abuse and of Native American women who are victims of certain kinds of violence by non-Indian men.

As discussed in a prior post, I have been most concerned about the jurisdictional “black hole” that has prevented investigation and prosecution of abuse of Native women by non-Indian men, and the bill now passed by Congress remedies that defect.

Novelist and Native-American Louise Erdrich highlighted this jurisdictional problem in her novel The Round House, and she recently penned an op-ed article in the New York Times that countered criticisms of the tribal courts jurisdictional provision in this bill.

Erdrich said the “Justice Department reports that one in three Native women is raped over her lifetime, while other sources report that many Native women are too demoralized to report rape. Perhaps this is because federal prosecutors decline to prosecute 67 percent of sexual abuse cases, according to the Government Accountability Office. [In addition’] . . . a Native woman battered by her non-Native husband has no recourse for justice in tribal courts, even if both live on reservation ground. More than 80 percent of sex crimes on reservations are committed by non-Indian men, who are immune from prosecution by tribal courts.”

Moreover, according to Erdrich, the “Minnesota Indian Women’s Resource Center says this gap in the law has attracted non-Indian habitual sexual predators to tribal areas . . . [and another source] has found that rapes on upstate reservations increase during hunting season.”

Erdrich also defends the abilities and fairness of tribal courts against the charge that they would be unfair to non-Indian defendants. She says,“Most reservations have substantial non-Indian populations, and Native families are often mixed. The Senate version guarantees non-Indians the right to effective counsel and trial by an impartial jury.” In addition, “[t]ribal judges know they must make impeccable decisions . . . that they are being watched closely and must defend their hard-won jurisdiction. Our courts and lawyers cherish every tool given by Congress. Nobody wants to blow it by convicting a non-Indian without overwhelming, unshakable evidence.”

Erdrich’s comments are echoed in a New York Times editorial that stated, “Violence and crime rage unchecked in Indian country, yet the federal government, the primary law enforcer on reservations, is investigating and prosecuting fewer violent felonies, and reducing financing for tribal courts and public-safety programs. That is a scandal . . . . [and] a moral atrocity.”

Second, the House Republican leadership permitted the Senate version to come to the floor even though it did not have the support of a majority of the Republican members. This was a “violation” of the so-called unofficial Hastert Rule established by a previous Republican Speaker of the House, Dennis Hastert, whereby the Republican majority would only bring to the floor for a vote measures that were supported by a “majority of the majority.” Moreover, this was the third time this year that the Hastert Rule has not been followed. The other occasions were a bill to avert automatic tax increases and a bill providing relief for states hit by Hurricane Sandy.

Although this three-time refusal to follow the Hastert Rule upsets at least some of the more conservative Republican Representatives, I applaud Speaker Boehner’s acting as a Speaker of the entire House of Representatives, not just the Republican caucus. I hope that he continues to do so or that a truly bipartisan Speaker replaces him.

It must also be noted that allowing the VAWA bill to come to the floor for a vote and to be passed is a reversal of longstanding House Republican opposition to the bill. This change is seen as a recognition by at least some of the House GOP leadership that the party needed to try to repair its standing among women, who gave the Democrats a substantial margin of victory in the 2012 election. Apparently 13 Republican Representatives who are announced or likely candidates for the Senate in 2014 disagree with this political judgment as they voted against VAWA on Thursday.

Immediately after the House action President Obama expressed his approval of the House action:“Today’s vote will go even further by continuing to reduce domestic violence, improving how we treat victims of rape, and extending protections to Native American women and members of the LGBT community. I want to thank leaders from both parties . . . for everything they’ve done to make this happen. Renewing this bill is an important step towards making sure no one in America is forced to live in fear, and I look forward to signing it into law as soon as it hits my desk.”

Vice President Biden also applauded the House and thanked “the leaders from both parties . . . and the bipartisan majorities in both the House and the Senate” for passage of the bill.

Jurisdictional Black Hole for Certain Violent Crimes by Non-Indian Men Against Indian Women on Indian Reservations

Louis Erdrich in her prize-winning novel, The Round House, tells the story of the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime. This was discussed in a prior post.

This jurisdictional conundrum is not just a subject for fiction. It is a real problem in the U.S. today that would be addressed by a law now being debated in the U.S. Congress.

Introduction

In recent years a Southern Ute Indian woman married a white man, and they lived on the tribe’s reservation in southern Colorado. There she was subjected to frequent beatings and threats. Because her husband was white, the Southern Ute Tribal Police could not investigate and prosecute him. Because she was a Native American on tribal land, state authorities were powerless as well. Federal law enforcement did have jurisdiction, but they declined to do anything.

Later the husband came with a gun to the Southern Ute woman’s office at the federal Bureau of Land Management and opened fire and wounded a co-worker. The state officials arrested him, but only after a tape measure was used to determine the distance between the barrel of the gun and the point of the bullet’s impact in order to establish state jurisdiction.

This jurisdictional problem is addressed in a Senate bill (S.47), the Violence Against Women Reauthorization Act 2013 (VAWA 2013). This legislation would, for the first time, allow Native American police and courts to investigate and prosecute non-Indians who commit certain violent crimes against Native women on tribal land. The details are in section 904 [204(b)] of the bill.

The bill, in section 904 [204 (d)], also provides protections for the rights of those non-Indians who are accused of such crimes.

U.S. Senate Proceedings Regarding S.47

Last Thursday, February 7th, the Senate defeated, 65 to 34, an amendment to this bill offered by Senator Charles Grassley of Iowa. It would have placed more federal prosecutors and magistrates in Indian country for domestic violence and sexual assault cases and would have allowed tribes to petition a federal court for protective orders to exclude an abuser from Indian land. This was S.Amendt.14 to the bill.

On February 11th, the Senate rejected, 59-31, an amendment to the bill offered by Senator Tom Coburn of Oklahoma to delete the bill’s provisions granting additional powers to Indian courts. This was S.Amendt.13 to the bill.

Finally yesterday (February 12th) the Senate passed, 78-22, the bill with the support of 23 Republicans. Now it will be sent it to the House of Representatives.

Immediately afterwards, President Obama released a statement saying, “This important step shows what we can do when we come together across party lines to take up a just cause.” He added, “The bill passed by the Senate will help reduce homicides that occur from domestic violence, improve the criminal justice response to rape and sexual assault, address the high rates of dating violence experienced by young women, and provide justice to the most vulnerable among us.”

I want to thank Senator Leahy and his colleagues from both sides of the aisle for the leadership they have shown on behalf of victims of abuse. It’s now time for the House to follow suit and send this bill to my desk so that I can sign it into law.”

Proceedings in the House of Representatives Regarding S.47

Many of the House Republicans are believed to be opponents of the bill’s provisions on Indian courts.

However, 17 House Republicans on February 11th sent a joint letter to Speaker John Boehner and Majority Leader Eric Cantor urging the House to “immediately” reauthorize the Violence Against Women Act. The letter also said, “Now is the time to seek bipartisan compromise on the reauthorization of these programs” and such a bill “must reach all victims and perpetrators of domestic violence, dating violence, sexual assault and stalking in every community in the country,”

In addition Republican Representatives Tom Cole of Oklahoma and Darrell Issa of California have proposed an amendment to the bill that would offer non-Indian defendants a right to remove their case to a federal court in certain circumstances.

We now await House action on the bill. Its supporters should urge their Representatives to support the bill.

Conclusion

In my opinion, the current jurisdictional “black hole” is outrageous and needs to be eliminated as soon as possible. I have not seen any indication that anyone believes otherwise.

Instead, the opposition to this proposed legislation regarding violent crimes against Indian women purportedly is based on concern for the due process rights for any non-Indian man who is accused of such crimes in a tribal court.

I share those due process concerns as I would for any defendants under any new criminal statute. However, I do not know enough about the procedures and practices of tribal courts and of the quality of their judges to come to a reasoned conclusion on whether and how the bill might be amended to address any legitimate concerns on this issue. For an outsider, this should be something that Congressmen and women of all persuasions should be able to agree upon.

The Impact of the Minneapolis Public Schools Desegregation/Integration Litigation on Native American Children

A prior post reviewed the Minneapolis Public Schools (MPS) desegregation/integration litigation from 1971 through 1977 while another post looked at that case from 1978 through 1983.

During this entire period the MPS had significant numbers of African-American and Native American students, and the U.S. District Court in Minneapolis attempted to recognize the different interests of these two groups by its May 1975 adoption of a two-tier formula for determining compliance with the court’s order for the desegregation/integration of the schools. At that time the court modified its order to require that no school could have more than 42% total minority enrollment and no more than 35% of a single minority group.

The issue of the impact of the court’s orders on Native American students came to the forefront in May 1978 in connection with a MPS semiannual report to the court requesting approval of a variance of up to 60% total minority enrollment for schools with heavy concentrations of Native American students.

Such a variance had been sought by Native American parents so that their children would not be forced to leave the new Andersen Elementary School in the southern part of the city, and a group of those parents appeared as amici curiae (friends of the court) in connection with the court hearing on that MPS semiannual report. Their attorney, Larry Leventhal, raised the legal argument that the 14th amendment’s equal protection clause did not prohibit such a variance because of the U.S. Supreme Court’s recognition that Native Americans have a unique status in U.S. law derived from their tribal quasi-sovereignty.

As part of the MPS evidence supporting this variance, I put on the witness stand a MPS employee who was responsible for creating curricular materials that featured contemporary Native Americans who were successful in the broader culture. He was of Ogibwe heritage and testified to his being “a well-balanced schizophrenic” because he had one foot in his native culture and the other foot in the dominant culture.

Nevertheless, the court in May 1978 denied the MPS request for approval of this variance for Native American students. The court said it was “sensitive to the concerns of the School Board and amici that the special educational needs of Native American students be met and that concentration of [such] pupils may be helpful to the expenditure of [special federal educational funds].” The court also acknowledged that the Supreme Court had in certain cases allowed separate treatment of Indians, but distinguished those cases on the ground that the MPS proposed variance was not tied to tribal membership or any quasi-sovereign interests of particular tribes or reservations.[1]

The Eighth Circuit affirmed this ruling. It acknowledged that “in certain contexts separate classification and treatment of Indians as a race are constitutionally permissible in the light of the unique status of Indians in this country, and in light of history and policy.” This statement, however, was subject to this important qualification by the appellate court: “the Supreme Court has not held that a school district is exempt from its obligation to eliminate racial segregation ‘root and branch’ . . . simply because the district’s student population contains a substantial number of Indian students with specialized educational needs.” Moreover, the Eighth Circuit upheld Judge Larson’s finding that these legitimate needs had been met by the district court’s past 35/42% and prospective 39/46% guidelines.[2]

When the MPS asked the U.S. Supreme Court to review the case, its final argument was that the lower courts erroneously had determined important and federal statutory issues regarding the education of American Indian children.[3] The Supreme Court, however, denied review.[4]

[1] Booker v. Special School District No. 1, 451 F. Supp. 659 (D. Minn. 1978). This order also denied the MPS motion to terminate the case that was discussed in a prior post.

[2] Booker v. Special School District No. 1, 585 F.2d 347 (8th Cir. 1978).

[3] Petition for Writ of Certiorari, Special School District No. 1 v. Booker (No. 78-__ Sup. Ct. Nov. 10, 1978).

[4] Booker v. Special School District No. 1, 433 U.S. 915 (1979).