Denial of tribal sovereignty is an ‘archaic remnant of a racist past’
Below is testimony that Sherri Mitchell, Penobscot Nation member, Indigenous rights activist and attorney, gave on February 19, 2020 before the Maine Legislature’s Judiciary Committee in favor of LD 2094. The committee is scheduled to meet again on March 4 for a work session on the bill.
My name is Sherri Mitchell and I am from the Penobscot Nation.
I have three things that I would like to address in my comments today. One, the history that has brought us to the place we find ourselves in today; Two, the misinformation that is leading to concerns surrounding the Maine Violence Against Women Act, and; Three, the mounting inequities that have resulted from the Maine Settlement Act.
In his book the “Colonizer and the Colonized,” Albert Memmi wrote: “Racism is social not natural, it is general not personal, and it is tragically effective.”
He goes on to say that “the structure of racism has four ‘moments’: the insistence on difference; the negative valuation imposed on those who differ; the generalizing of this negative valuation to an entire group; and the use of generalization to legitimize hostility.”
The history of relations between the state of Maine and the Wabanaki Nations has been built upon such moments. And, they continue to be defined by them today. It is these very same racist attitudes that allow many within the Maine government to look individual Wabanaki people in the eye and say, it’s not you that I distrust personally, it is just the general idea of Indian sovereignty as a whole that worries me.
Sherri Mitchell testifies before the Maine Legislature’s Judiciary Committee in favor of LD 2094. | Dawn Neptune Adams, Sunlight Media Collective
Racism’s changing form
The underlying beliefs that have shaped opposition to the proposed amendments to the Maine Settlement Act are rooted in racially motivated paternalism that publicly calls into question the capacity of Wabanaki peoples to govern themselves. These ideas date back to the late 18th century and were espoused by the early advocates of Indian genocide during the removal era. And, again by the crafters of the Major Crimes Act of 1885 that stripped Indian people of their jurisdictional powers to prosecute their own people when the crime was considered too severe.
At that time, it was asserted that Indians could never be legally imagined as possessing legitimate police powers due to their historical lack of formal judicial processes. These same ideals surfaced again in 1978 in the Oliphant decision when Justice William Rehnquist denied tribes the right to prosecute non-Indians who committed crimes in their territories, due to the fear of subjecting non-Indians to the biased inefficiencies of tribal courts. It is perhaps unsurprising then that in the Oliphant opinion Justice Rehnquist quoted Justice Roger Taney, the author of Dred Scott, who found that black people were not humans but property and therefore ineligible for human rights.
Today, these same racist ideas are being given renewed social, political and jurispathic force when they are used to call into question the capacity of tribal governments and the legitimacy of tribal jurisprudence in the 21st century. This shows us that it is not racism’s content that has changed over time, but only its form. It is racism’s enduring quality that continues to give it such power and tenacity to deny us our basic humanity and rights to self-determination, even here in this room where we are allegedly among friends.
A model system for justice
It is time for these attitudes and the social constructs that they uphold to be allowed to remain in the past where they can die a natural death. The state’s imagined picture of ineptitude as applied to Native peoples has no place in our current social or political systems. Not only is it archaic in structure it is also inaccurate in form.
Today, the Penobscot Nation Tribal Court enjoys full faith and credit with courts throughout Maine. It is a model system that is held up across the country for its exemplary restorative justice practices and professional jurisprudence. Questions about its operations or its application of constitutional protections are grossly misleading. The court operates under the Indian Civil Rights Act, which provides the full Bill of Rights to all defendants who appear before the bench. This makes any assertion that the rights of potential non-Indian defendants who would appear in tribal court under VAWA completely unfounded. The questions surrounding this issue were examined thoroughly and successfully resolved when the federal legislation was being drafted. In fact, every question that has arisen surrounding the implementation of the Maine tribal VAWA legislation has been resolved. The only thing that remains unresolved are outdated racist attitudes that call into question the capacity of tribal nations to fairly disseminate justice. In the meantime, Wabanaki women and children remain at risk of being the victims of crimes that their nations have no ability to address. This is not only unacceptable, it is inhumane.
Wabanaki excluded from federal legislation meant to benefit Tribal Nations
The Wabanaki Nations have also struggled as a result of being excluded from federal legislation that benefits other tribes. As a result, the righting of historical wrongs has by-passed the state of Maine. While other tribes have had rights restored to them, the Wabanaki have been left behind. While other tribes have had economic opportunities presented to them, the Wabanaki have been purposely excluded. The provision in the Maine Settlement Act that purposely excludes the Wabanaki from the rights and benefits enjoyed by other tribes has left us hopelessly disadvantaged and impoverished.
Wabanaki face apartheid-style restrictions in Maine
Unfortunately, this is not the only way that we have been disadvantaged. We have also suffered from economic exclusions that have prohibited us from entering certain industries that appear to be reserved only for non-Indians. The position held by the state regarding tribal exclusion from gaming is reminiscent of the 1925 Wage Act of South African Apartheid where certain jobs were reserved only for whites.
I ask you, what kind of people would deny women and children full protection under the law for crimes committed against them? And, what kind of people would purposely deny an entire group the benefits that are specifically carved out for them, while also denying them entry into lucrative endeavors that could help lift them out of poverty? It is those who seek to keep Wabanaki peoples in poverty, so that they and those similarly situated may continue to benefit from our oppression. These oppressive tactics must come to an end and tribal sovereignty must finally be honored here in Maine. Today, you have the opportunity to bring Maine out of the dark ages of this country’s history by moving the relationship between the state and the Wabanaki Nations beyond the outdated thinking of the 19th century and into the modern day.
The negative valuations that have been assigned to Wabanaki peoples as a group, based on perceived differences and paternalistic leanings, can no longer be used to legitimize hostility toward us or to deny our sovereignty as nations. Today, those negative valuations can only be defined as Albert Memmi described them more than 50 years ago, as archaic remnants of a racist past. I ask each one of you to look deeply into your own mind and your own heart and root out these outdated notions of racial superiority. And, I ask you to stand with us in support of our inherent sovereignty as the original peoples of this land and vote ought to pass on LD 2094.
Sherri Mitchell, Weh’na Ha’mu Kwasset, was born and raised on the Penobscot Indian reservation. She received her Juris Doctorate and a certificate in Indigenous People’s Law and Policy from the University of Arizona’s James E. Rogers College of Law. Sherri is an alumna of the American Indian Ambassador program, and the Udall Native American Congressional Internship program. Sherri also received the Mahoney Dunn International Human Rights and Humanitarian Award, for research into Human Rights violations against Indigenous Peoples. She was a longtime advisor to the American Indian Institute’s Healing the Future Program and currently serves as an advisor to the Indigenous Elders and Medicine People’s Council of North and South America. She is the Founding Director of the Land Peace Foundation, an organization dedicated to the global protection of Indigenous rights and the preservation of the Indigenous way of life. Prior to forming the Land Peace Foundation, Sherri served as a law clerk to the Solicitor of the United States Department of Interior; as an Associate with Fredericks, Peebles and Morgan Law Firm; a civil rights educator for the Maine Attorney General’s Office, and; as the Staff Attorney for the Native American Unit of Pine Tree Legal. Sherri is the author of the award-winning book Sacred Instructions; Indigenous Wisdom for Living Spirit-Based Change.