American Indian denied his civil rights

William Perry Pendley

5/1/2006 11:05:00 AM - William Perry Pendley

On June 13, 1999, Thomas Lee Morris, aged 16, was driving his family’s vehicle, with his parent’s permission, near their home in Ronan, Montana, on the Flathead Reservation, when he was stopped by a Ronan City Police Department officer, allegedly for speeding. The officer asked if he were a tribal member; Morris informed him that he was a member of the Minnesota Chippewa Tribe of Leech Lake Reservation like his father.

Although Morris, his father, and mother, who is a non-Indian, have lived in Ronan for many years where his father runs an upholstery business and his mother works at several jobs, including caring for five children and four minor grandchildren, all of whom are tribal Indians, none of them are members of the tribes of the Flathead Reservation. In fact, though all members of Morris’s family except his mother are American Indians, they do not qualify as members in the Salish or Kootenai Tribes because they have no Salish or Kootenai ancestors. Thus, they may not participate in the political life of the reservation tribes: they may not vote in elections, hold office, serve on juries, or help determine the laws, rules, or regulations that apply to them.

Nonetheless, Morris was ordered to appear in the Flathead Reservation Tribal Court to answer a charge of violating Tribal Code by speeding. Although non-Indians are not sent to Tribal Court but to Montana State courts where the Constitution, the Bill of Rights, and the Fourteenth Amendment apply, Morris does not have that right. Therefore, at Tribal Court, Morris, with the aid of pro bono legal counsel, moved to dismiss for lack of jurisdiction and requested a jury trial, which was denied. Thereupon, Morris filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Montana; that too, was dismissed.

Remarkably, the U.S. Court of Appeals for the Ninth Circuit reversed the Montana district court’s ruling and ordered that court to address the serious constitutional issues raised by Morris, that is, his claim that the adoption by Congress of the Indian Civil Rights Act, which makes all American Indians, regardless of tribal membership, subject to any tribal jurisdiction, violates the Constitution’s equal protection and due process guarantees.

Back in Montana, the federal district court asked the United States, which had filed a friend of the court brief earlier, to join the lawsuit now as a party, which it did; however, the United States argued, not in favor of the civil rights of Morris, but in favor of the jurisdiction over him by the Flathead Tribal Court. Then, the State of Montana jumped into the case with a friend of the court brief in favor of the Flathead Tribal Court.

Morris’s attorney claimed that Congress had violated Adarand Constructors, Inc. v. Peña, a landmark 1995 ruling in which the Supreme Court held that the Constitution’s equal protection guarantee applied to Congress. The federal district, however, ruled that Adarand did not apply to American Indians because theirs was a political designation, not one based on race. In so ruling, the district court relied on a 1974 decision by the Supreme Court that legal experts believe was overruled by Adarand. Plus, as Morris could attest, tribal membership, unlike membership in other political entities, is based on blood quantum. The district court did have a solution for Morris; he could escape Flathead Tribal Court jurisdiction by giving up membership in his father’s tribe. Instead, Morris appealed to the Ninth Circuit.

After the Ninth Circuit ruled against him, Morris, early last month, asked the U.S. Supreme Court to hear his case to decide whether its Adarand ruling and its bar against unconstitutional acts by Congress applies to American Indians. Morris hopes the Supreme Court cares about such matters. It is obvious that no one else does—not Congress, not the U.S. Department of Justice, and not the State of Montana.