An Unconstitutional Argument

The motion to sunset the TN Commission on Indian Affairs was made by reiterating a CNO allegation that, should the State of Tennessee (or its agents) take action on an application for tribal or other Indian recognition, the State would be at risk of federal law suit. The motion maker went on to suggest that even enhancement programs for Indians were unconstitutional, and said recognition was - per the constitution - a federal issue.

Wrong wrong wrong wrong WRONG!

Article 11 of the US Constitution gives nonconsenting states (TN is a nonconsenting state) soveriegn immunity from suit by another state government, foreign government, citizen of another state, or even a TN citizen. The state was never at risk.

Was the motion an honest oversight or ignorance of constitutional law, or was it an excuse to strike back in an act of retaliation at a community that stood up to an earlier senseless law co-sponsored by the motion maker?

Article 10 of the US Constitution gives the states nearly equal powers with the federal government during times of peace as any federalist (the motion maker self-identifies as a federalist) will tell you. Neither Tennessee nor the US Government have any current wars with American Indians on their to do lists nor is there any provision of the US Constitution that relegates “recognition” to the federal government (there is a statement that relegates negotiation of treaties and commerce with Indian nations to the federal government), ergo the authority to recognize is the right of this or any other state in the union.

Another constitutional faux pas on the part of the motion maker?

What really makes this all so very confusing is that - if you start surfing around on the motion maker’s family - you eventually trip over family genealogists who state the line of his family surname that settled and stayed in Tennessee is loaded with …

 You guessed it. Cherokees and Melungeons.

 Do you suppose it’s a bad case of denial translated into a hate of anyone/thing non-caucasian, or something else?

Coffin Nails & Laundry Lists

I sit mind-boggled, watching the antics of the self-righteous, self-declared “victims” within the Tennessee Indian community as they swiftly, efficiently, and with nary a backward glance drive nails into the commission’s coffin, their fans and advisors alike gleefully digging its grave, and I remind myself of their most recent lessons …

1. Thou shalt not do as I do, only as I say
2. Thou shalt serve no Indians before I am an Indian
3. Thou shalt not question my perspective of Tennessee Indian History

Some things just need to be said because they are flat out the truth. Some times the strongest medicine tastes the  most bitter. Some times you have to cut away the infected limbs to save the body. Some times the largest boil is caused by the tiniest splinter.

Coffin Nails:

• Individuals who put their personal egos above the good of the community
• Individuals who put their personal hatred of others above the good of the community
• Individuals who put their self-perceived rights above the proven rights of others

Laundry List:

• End personal politicizing and self-agrandizement via the official minutes
• End privately-owned records being referenced in the public documents of the commission
• End undocumented accusations or allegations against other commissioners

I’m sure this list will continue to grow over time.

Open Letter to the Sunset Review Panelists

Open Letter to the members of the joint subcommittee of the Tennessee State Legislature’s Government Operations Committee that will be hearing the Sunset Review of the Tennessee Commission on Indian Affairs

Dear Gentlemen,

The time is fast approaching when you will sit down and determine whether the Tennessee Commission on Indian Affairs (TCIA) has demonstrated its value with regard to its mandates established in TCA 4.34.101-108.

None of you are American Indian, making it difficult for you to understand the cultural aspects involved. It is unlikely that any of you are fully aware of the indigenous history of this state as it has never been a required subject in school curriculum at any level, nor are there any requirements that any indigenous history presented be presented from an indigenous perspective. In view of that, how could any of you be expected to understand the culture or its collective histories, or to know that “Indian” is not limited to a singular set of cultural traditions, spiritualities, or the cultural impossibility for one or two individual Indian people to speak for all Indian people?

Two of you may be somewhat biased due to recent incidents surrounding a specific bill and the opposition that it raised from within the Tennesseee American Indian community. You may be subconsciously motivated to call this commission to an end to avoid future conflict and confrontation and may not understand consciously or subconsciously how those recent conflicts are themselves the very evidence for the essential need for this commission to continue.

All of you may have been lobbied by various groups or collectives of groups declaring themselves “the” Indians of Tennessee and demanding the commission’s demise because it has refused to recognize them or serve their needs. Few of you may be aware that, until this spring, there was no state criteria for recognizing any group, organization or individual as Indian, that the criteria for recognizing tribes, bands and communities that was adopted doesn’t take effect until June 24, or that no group has as yet submitted an application for recognition under the new criteria. Therefore none of you could be aware that their accusations are false.

All of you may have been lobbied by individuals or collectives of individuals who would tell you nothing has changed since the State sunset the last commission. The infighting, the bickering, the inability to collaborate are all still present. None would tell you that they are primary participants in the disagreements they label as infighting or bickering, and not one would probably admit to you the lack of collaboration is based on their own personal refusal to compromise for the benefit of the larger community.

All or some of you may have been lobbied by leaders of various historic nations, citing treaties and soveriegn rights given them in those treaties as the authority to declare who is or is not Indian per their tribal laws. Few, if any of those leaders would state clearly that those treaties and soveriegn rights only give them authority to declare who is or is not eligible to be a citizen of their tribe. Not who is or is not Indian. Again, considering that is highly unlikely any of you are well-versed in indigenous history or cultural traditions, it is also highly unlikely you would understand the difference between tribal citizenship and familial recognition.

Yet all of you are now faced with the daunting task of deciding whether or not this tiny commission should be allowed to survive for another 3-4 years. Perhaps if you look at it this way …

The 2000 census reported just shy of 40,000 self-identified American Indians in this state. Data collected by a grassroots initiative through the efforts of a professional sociologist and statistician show that population to not only represent 46 different American Indian nations, but that it can be further broken out to families coming from over 300 reservations of those 46 nations.

That information alone casts a strong shadow of doubt on previous allegations that the census reports were inflated by generationally distant “descendents” and “want to be” non-Indians. The light is now shining more strongly on the likelihood that the majority of the almost 40,000 are exactly who they say they are. The light is anticipated to become extremely bright when the initiative, endorsed but independent of the Commission on Indian Affairs, presents its final report later this year.

Do you want to try to deal with all those Indians yourselves? Do you seriously have the personal and professional time required to learn the ins and outs of the various cultural traditions of 46 nations and 300 plus reserves? Are you prepared to give intensive study to Indian law and the tribal laws of all those nations and reserves?

Would it not be more efficient and cost effective to not only continue the commission, but to encourage, support and promote it as the official intermediary and first responder for the issues of all those Indians? Is a collaboration between the State and the Indian community not in order here? If you cannot find it possible to form this collaboration between the State and the commission, then how will you justify an “internal lack of collaboration” as an excuse for the commission’s sunset?

And perhaps if you looked at the conflicts of the commission this way …

The Tennessee Commission on Indian Affairs is the only state commission or board in this state populated by nominees who were selected by the general public through a democratic process. The only commission or board where the general public is mandated an opportunity to participate in the nomination process. The only commission or board where the general public hands the “State” a list of nominees it supports for appointment to this commission.

The commission is mandated to make its agenda available prior to each meeting. The commission actively engages and openly seeks not only the input of the community it serves, but their attendance and participation at meetings, and their participation in carrying out the duties of the commission.

Granted, your doors are always open to us as your constituents and citizens of Tennessee, but can any of you honestly say you spend the majority of your time out among the public looking for issues and working to address them? Or, would most of you have to say you are so busy putting out fires your public brings to you in some form or another and carrying out the day to day business of your elected position there in Nashville, that you rarely have time - beyond newsletters - to actively hunt for new issues that need to be addressed?

How many of you have witnessed the same 20 or more of your constituents present at every committee, subcommittee, task force meeting or session of the Senate or House regardless of what the agendas were for those meetings? How many of your committee, subcommittee, task forces, or Senate/House sessions specifically set aside time for, allow, and encourage public comment as a part of the meeting?

Can all or any of you say you haven’t had conflicts or confrontations with other representatives or senators, at least at a party level? Can you say you’ve never had a constituent openly disagree with you or that you’ve never disagreed with the position a constituent takes? Is it acceptable for you to have those conflicts, but not acceptable for Indian people to have the same type of differences of opinion?

Informed now as to the level of public participation in the commission and its process, can you honestly expect there to be no occurrence of any disagreements? Can you, with any justification at all, say a commission designed to serve the needs of the Indian community should not go forward because of disagreements that arise out of actively engaging the community it serves?

Why am I assuming you would attempt to justify a sunset in this manner? Because it’s the excuses used last time.

Tennessee needs this commission. It should be a department of the state rather than a commission based on the indigneous history of Tennessee, but a commission is better than the something that will occur if it does not exist. Without this commission, the State of Tennessee is historically ill-prepared to deal with Indian issues in any fashion that is fair or equitable to Indian people who live here.

Study hard, honorable Senators and Representatives. Consider thoughtfully the decision you will make. If you condemn this commission to sunset, you condemn yourselves both to taking on the responsibility it assumes and for holding yourselves less accountable for your collective professional behavior than you hold Indian people for theirs. If you condemn this commission to sunset, you are sending a message that the struggles the forefathers of this state and country suffered that are so easily comparable to the struggles this community is enduring as it develops its own democratic process are also condemnable.

Yes, good Senators and Representatives, study hard and consider thoughtfully. The message you send with your decision on the future of this commission may send a message to far more than not quite 40,000 American Indians living in Tennessee.

Respectfully,
Valerie Ohle, Editor - Tanasi Journal
Citizen of the State of Tennessee
Member of the American Indian community of Tennessee