Where Is Our MLK for Disenrollment?

Steve Russell

The death of civil rights icon Julian Bond last week gets me off the dime on commentary I resolved to make on my series of articles about the disappearance of thousands of Indians at the hands of other Indians in the disenrollment epidemic.

Bond, poet and politician, a founder of the Student Nonviolent Coordinating Committee and the Southern Poverty Law Center, was a force of nature on the level of Dr. Martin Luther King, Jr., and in lamenting Bond’s passing the rumble of Indian self interest should rattle the windows like the bass line in a gospel choir: Where is our Julian Bond; where is our MLK?

In the disenrollment wars, where is our Derrick Bell?

Harvard Law Professor Bell was a founding parent of a school of scholarship called critical race studies. Within that movement, he was most closely identified with a theory that outraged many friends and allies, “interest convergence.”

It’s a theory the disenrollers need to understand as an aid to explaining how their actions are likely to play out, whether intended or not. And I’ll say at the outset that most of the so-called leaders do not intend evil on the level that is likely to follow. All they have in mind is a little light stealing or a chance to remain in charge of things a bit longer: Their idea of government as usual.

It’s never possible to discuss Indian politics without history. Here, the history of the 14th Amendment, the constitutional provision the strategic Indian fighters believe will be the demise of “special privileges” for Indians. Special privileges, by their lights, are any laws that privilege Indian nations over any other voluntary association.

In the movie Lincoln, we saw the ugly side of the political birth of the 13th Amendment, abolishing slavery. The 15th Amendment guaranteed freedmen the right to vote. The 14th, the broadest of the Reconstruction Amendments, declared birthright citizenship and all the attending “privileges and immunities” as well as equal protection of state laws.

The Reconstruction Amendments were supposed to reweave the Union around a new set of principles, bringing to fruition Thomas Jefferson’s ringing declaration, “We hold these truths to be self-evident, that all men are created equal…” After the war inspired by that assertion, the new Constitution conspicuously omitted any support for equality by race or by sex or even by class.

The Civil War was the explosion that caused the conflict between the Declaration of Independence and the Constitution to unravel. The so-called “Radical Republicans” set out to repair that conflict, but not everyone agreed with the freedom agenda. Amendments 13, 14, and 15 still had to clear the litigation sausage machine.

In 1873, the Supreme Court gutted the privileges and immunities clause of the 14th Amendment.

In 1883, the SCOTUS struck down a package of civil rights laws Congress had passed to enforce the Reconstruction Amendments.

In 1896, the SCOTUS gutted the equal protection clause by endorsing separate facilities as long as they were “equal.” With a wink and a nod, Reconstruction became a historical pipe dream. Jim Crow ruled the South and, just a year later, the General Allotment Act began dismantling Indian reservations as concentration camps and Indian reservations as separate nations, forcing Indians to assimilate while forcing African-Americans not to assimilate.

These peculiar race-based policies—segregating blacks and disappearing Indians---would remain in place until non-white GIs returned from having beaten a German ideology and a Japanese ideology rooted in racism.

Almost 50 years after the Reconstruction Amendments, a unanimous U.S. Supreme Court gave us Brown v. Board of Education, which appeared to drive a stake into the heart of Jim Crow laws. This set off a massive wave of resistance in the former Confederate states, and it was to symbolize this resistance that the Northern Virginia battle flag of Robert E. Lee was added to the state flags in several southern states, touching off a debate only recently being resolved

What took so long and why 1954? Nobody would deny that the result in Brown—striking down public school segregation for violating the 14th Amendment’s equal protection clause—was not commanded by inevitable logic of the law. At the time the 14th Amendment was passed, the schools where it passed in the District of Columbia were segregated and remained so.

Derrick Bell’s explanation was one among many provocative ideas born in critical race theory, “interest convergence.” Jim Crow could only fall, Bell argued, when Jim Crow laws caused more trouble than they were worth to white people and so the interests of white people (who had access to power) converged with those of African-Americans (who had no access to power).

Bell suggested that Jim Crow laws had come to endanger a fundamental interest of the most powerful white people in winning the Cold War. As long as segregation was the law of the land—or at least the law of the former Confederate states---“liberty and justice for all” was a steaming pile of hypocrisy.

The U.S. hypocrisy played out on the international stage by offering the Soviet Union a rhetorical punching bag. There were several instances of African diplomats being mistreated in the U.S. because they were mistaken for local blacks.

Hypocrisy played out on the domestic stage because Communists were only too happy to work on behalf of the Civil Rights Movement. This caused the major civil rights organizations to get redbaited and the redbaiting caused more political estrangement.

All of these bad things were happening in service to Jim Crow, a set of laws confined to the former Confederate states and in which the most powerful U.S. leaders had no interest one way or the other.

I’ll skip a defense of Bell’s controversial analysis of Brown in the interest of getting to the point. The 14th Amendment has become the legal cudgel to destroy all of federal Indian law. Any law or policy that is an advantage to Indians is said to be a disadvantage to white people. The political status of Indian nations is said to be a convenient fiction to cover up racism.

When the Cherokee tribal government manipulated turnout in a tribal election to disenroll the Cherokee freedmen, the racism was obvious to all except those blindly accepting that the Dawes rolls were correct reports of which freedmen carried Cherokee blood.

Men who own women have taken sexual advantage in all of human history. On what basis do we claim Cherokee men were different? The transparent racism supports the narrative of Indian law as race law, something that should have been buried by the Civil Rights Movement if not by the Civil War.

Then there are the disenrollments over greed, where there have been many instances of dead people being disenrolled so as to justify doing the same to their living relatives. By behaving as if the only point of tribal citizenship is access to per caps, tribal governments support the narrative of tribal citizenship as an excuse to advantage Indians at the expense of white people.

The disenrollments over score settling support the narrative that after over 100 years of tutelage by the U.S., Indians are still unable to govern themselves in a manner that protects everybody. Isn’t it time to quit propping up the power of unprincipled scoundrels based on their Indian ancestry, based on racism?

In every case of disenrollment, we see interest convergence between the new Indian fighters marching toward colorblind law and the tribal governments that gin up reasons to expel their political opponents.

Derrick Bell’s theory of interest convergence could be manipulated as a shield for us rather than a sword for the new Indian fighters.

The German “final solution to the Jewish problem” was inspired by the first generation of Indian fighters. Concentration camps were consciously modeled on Indian reservations. The Nazis did not invent exterminating a people to claim their property.

Do not underestimate shame as a political force or the interest U.S. voters have in casting off that historical burden. U.S. politicians have a powerful interest in certainty, in putting the Indian problem in the rearview mirror once and for all.

The modern Indian fighters offer to cast off shame and introduce certainty by declaring colorblind aspirations to be facts on the ground and the truth be damned. Should Indian nations offer an alternative solution, it would have the advantage of being based on the truth, just like the Civil Rights Movement was.

Causing the interests of Indian nations and U.S. power brokers to converge in a manner that protects our legitimate interests is a political science problem that requires vision and patriotism.

Patriotism is the ability to put the interests of your people over your personal interests. Indians used to honor that ability.

If we cannot summon patriotism any longer because the policy of segregating Indians without sufficient resources has destroyed our peoplehood, then the historic Indian fighters have won. The victory just took longer than they imagined.

If we are ever to have a strategic plan to answer the 14th Amendment offensive by the new Indian fighters, we will need tribal leaders with the patriotism of Julian Bond, the courage of MLK, and the intelligence of Derrick Bell.

Now would be a good time.

RELATED: Disappearing Indians: Who Decides Who’s In and Who’s Out?

RELATED: Disappearing Indians, Part II: The Hypocrisy of Race In Deciding Who’s Enrolled

RELATED: Disappearing Indians III: Carving Up the New Buffalo

RELATED: Disappearing Indians, Part IV: When is Enough Too Much?

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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