Wampum

The shortest path

The shortest path from home to work was Prescott to Taylor to Rifle Range Road to Franklin, and down the hill to downtown Monterey. Where Taylor ended and Rifle Range began there was a sign. Entry constituted consent to search. The sign was repeated at the Stillwell-High gate, the Ewing gate, and even as one passed without entry on Lighthouse, from New Monterey to Monterey, the signs were there. For a few minutes of every day of the week, one consented to search, and in return obtained ... la protección del Capitan Comandante del Presidio de Monterey ... from either the Esselens, Zoro, the return of Hipólito Bouchard ... or los Gringos.

Actually the DLI was full of men and women in Air Force, Navy, and Army costumes for ranks, busy learning Chinese, Russian, and Vietnamese, and Pacific Grove (Methodist) was a dry town, and Monterey, with or without the DLI, the Navy School, and proximal Fort Ord (6th Army, 7th ID) was quite profane. Three jurisdictions each morning, and three each evening.

Dwight made the case that the views of Justice Janice Rogers Brown on the incorporation doctrine is sufficient to disqualify her to sit on the Federal bench. I will make a slightly different case, to the same end. First, the smoking gun (actually there are several of them, one for Lochner, one for the Takings Cases) from her Pepperdine Bible Lectureship:

The United States Supreme Court, however, began in the 1940’s to incorporate the Bill of Rights into the 14th Amendment. Now that has an interesting effect on how the law about religious expression gets developed. Because they incorporated all of the Bill of Rights into the 14th Amendment, that not only made them binding on the States, that is to say that now the States were covered by the same first ten amendments as the Federal government, it also gave tremendous power to the Federal judiciary, because now they got to decide at least the minimum level of protection that would be provided for all of these rights. The historical evidence supporting what the Supreme Court did here is pretty sketchy. The language certainly doesn't give you any clue that the first ten amendments would be incorporated in language which simply says “there shall be no denial of due process or equal protection.” So if you went by the language you certainly would not get there. They relied on some historical materials which [are] not overwhelming. The argument on the other side is pretty overwhelming that it's probably not incorporated.

Janice Rogers Brown, Beyond the Abyss: Restoring Religion on the Public Square, transcript of speech to the Pepperdine Bible Lectureship (1999).

There is the temporal claim, "beginning in the 1940s", and the balance of evidence claim, "some historical materials which [are] not overwhelming." If those fail, then the claim advanced by Janice Rogers Brown fails.

Everyone who has any exposure to Federal Indian Law knows how Indians got "civil rights". First, the Indian Reorganization Act, June 18, 1934 (Wheeler-Howard Act), "created" governments:

sec. 16. Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized by the Secretary of the Interior under such rules and regulations as he may prescribe. Such constitution and bylaws when ratified as aforesaid and approved by the Secretary of the Interior shall be revocable by an election open to the same voters and conducted in the same manner as herein above provided. Amendments to the constitution and bylaws may be ratified and approved by the Secretary in the same manner as the original constitution and bylaws.

In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments. The Secretary of the Interior shall advise such tribe or its tribal council of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Bureau of the Budget and the Congress.

One of the trivial pursuits questions for students of Federal Indian Law is which Tribal Governments do not in fact derive their authority to exist from the IRA.

So. There. In the mid-1930s, Congress creates government, characterized only as "appropriate constitution and bylaws" and "effective when ratified by a majority vote" and "revocable by an election open to the same voters and conducted in the same manner" and "[a]mendments to the constitution and bylaws may be ratified and approved by the Secretary in the same manner as the original constitution and bylaws". It appears that the only substantive guarantee of the constitutional definition of the powers of government created by Congress was "appropriate", according to the Secretary of the Interior. If time stopped there, Justice Janice Rogers Brown would be home free. As it happens however, time didn't stop for her.

In 1966 the Eighty-ninth Congress, second session, pursuant to S. Res. 194, published the summary report of hearings and investigations by the Subcommittee on Constitutional Rights of the Committee on the Judiciary entitled Constitutional rights of the American Indian. Chairman Sam Ervin of the Subcommittee on Constitutional Rights of the U.S. Senate, who was part of the coalition of Southern Democrats and conservative Republicans who supported a large defense establishment while opposing civil rights and social welfare legislation, remarked "... it appears that a tribe may deprive its members of property and liberty without due process of law and not come under the limitations applicable to federal and state governments as stated in the Bill of Rights." Two years later the Indian Civil Rights Act of 1968 was passed by Congress and signed into law by President.

Indian Civil Rights Act of 1968 (25 U.S.C. §§ 1301-03)

§ 1301. Definitions

For purposes of this subchapter, the term -

1. ''Indian tribe'' means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government;
2. ''powers of self-government'' means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians;


3. ''Indian court'' means any Indian tribal court or court of Indian offense.

§ 1302. Constitutional rights

No Indian tribe in exercising powers of self-government shall -

1. make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
2. violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;


3. subject any person for the same offense to be twice put in jeopardy;


4. compel any person in any criminal case to be a witness against himself;


5. take any private property for a public use without just compensation;


6. deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
7. require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and [1] a fine of $5,000, or both;


8. deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;


9. pass any bill of attainder or ex post facto law; or


10. deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

§ 1303. Habeas corpus

The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.

So. There. In the mid-1960s, Congress takes all those Constitution-only governments and imposes upon them the Bill of Rights (minus the 2nd Amendment, a detail for a later post) utterly and absolutely at odds with the central claim of Justice Janice Rogers Brown.

Janice Brown's "scholarship" requires that balance of evidence claim for her position, that is, the sense of Congress as "framers" possessed of "original intent" when drafting first the IRA of 1934, and then the ICRA of 1968, only intended to extend the Bill of Rights(minus "2") to Indians, as dual nationals, and to no Americans not also nationals of some Indian Nations. The alternative explanation for her "scholarship" is even worse. If the Judiciary was in a different country than Congress, then the balance of evidence claim could ignore the foreign Congress and its Indians and the IRA and ICRA, and focus on the "historical materials" which are contrary to the pattern of facts manifested in 1934 and 1968. In the US anyway. In Janice Brown's imaginary country there are no Indians, no Tribal Governments, and no complex jurisdictional issues involving federalism, colonial charters, treaties, states and run-of-the-mill occupation with occasional fits of benign neglect and bursts of predatory seizing. And no Congress.

The stakes are high. The United States Court of Appeals for the District of Columbia Circuit is widely viewed as the second (to the Supreme Court) most important court in the country because of its often exclusive jurisdiction to hear challenges to health, safety, welfare, and environmental protections issued by federal government agencies. Except for the handful of cases that the Supreme Court agrees to review, the DC Circuit is the final arbiter of whether a federal protection will stand or fall.

Going back to the sign at the entrance to a military reservation, and the consent to search, and the protección del Capitan Comandante del Presidio de ... without incorporation, States may establish religion, censor newspapers, abolish possession of arms, quarter soldiers in homes in peacetime without the consent of homeowners, conduct unreasonable searches and seizures, without warrens, charge persons with felonies and capital crimes upon the whims of public prosecutors, retry the same offense two or more times, compel self-incrimination, waive due process, delay trials indefinitely and obstruct the defense of those charged, try cases without juries, impose excessive bail and cruel and unusual punishment, assume all powers not enumerated, and assume all powers not delegated in the Constitution ... except bajo protección del Capitan Comandante del Presidio de Monterey, or under the protection of a Tribal Council.

The whole premise of The Siege, staring Bruce Willis as Generalismo Waterboard and Waste, is that martial law means less civil rights, not more. The whole premise of the Oliphant to Lara line of cases is that Tribal jurisdictions are stranger than Mars, and therefor no American should be subject to them. In Janice Brown's America, the military and tribal reservations are jurisdictional sanctuaries.

Here in Maine we're watching the (first, and probably last) Baldacci administration and the Senate and House leaderships do nothing to respond to the Palesky tax initive (Jarvis-Gann) of the last cycle. That means we're likely to have to face a TABOR in the next cycle. With that in mind, and the knowledge that Maine's affordable housing is wicked lead contaminated, particularly compared to California, in particular that MB and Jonah spent six weeks in Maine Med chelating Jonah for lead, and he and I spent another week in Maine Med for another round of chelation, and I do his lead level blood draws every month, I close this with Justice Janice Rogers Brown and Sinclair Paint.

Sinclair Paint Co. v. Board of Equalization, 49 Cal. App. 4th 127 (1996), rev’d 937 P.2d 1350 (Cal. 1997) (Brown, as a California appeals court judge, struck down the Childhood Lead Poisoning Prevention Act for imposing a fee on private companies that manufactured products containing lead. Brown’s conclusion, that the fee was a “tax” which was preempted by Proposition 13, was reversed by the California Supreme Court without dissent.).

The extended entry contains the Senate's summary of the activities of the Subcommittee on Constitutional Rights, from its founding in 1955, to 1970. The Subcommittee is currently chaired by Senator Cornyn (R-Insane) Senator Brownback (R-KS). Correction courtesy of a Byrd watching reader.

Subcommittee on Constitutional Rights

13.119 The Subcommittee on Constitutional Rights was established by a resolution of the Senate Judiciary Committee, approved January 20, 1955, to survey the "extent to which the Constitutional rights of the people of the United States were being respected and enforced." Funds to conduct hearings and investigate this subject were authorized by S. Res. 94, 84th Cong., and continued by later resolutions. The subcommittee concentrated on rights guaranteed, recognized, safeguarded, or protected under the Constitution.

13.120 From its beginning, subcommittee policy precluded its involvement in matters still before the courts or with individual cases that did not appear to relate to some policy or rule that might infringe on some constitutional right. It did, however, invite the public to bring to its attention violations that raised issues of general application. Consequently, as the subcommittee's activities became known, it received thousands of complaints, inquiries, and requests for information and assistance from a variety of sources.

13.121 The chairmen of the subcommittee were Thomas C. Hennings, Jr., of Missouri (1955-60); Joseph C. O'Mahoney of Wyoming (September-December 1960, following Senator Hennings' death); Sam J. Ervin of North Carolina (1961-1974); and John W. Tunney of California (1975-76). Following Senator Ervin's retirement at the end of the 93d Congress, Senator Tunney's Subcommittee on Representation of Citizens' Interests was merged into the Subcommittee on Constitutional Rights. When the subcommittee convened at the beginning of the 95th Congress (1977), it had no permanent chairman because Senator Tunney failed to be reelected. Because the Legislative Reorganization Act of 1977 (S. Res. 4, 95th Cong.) placed limits on the number and membership of subcommittees, the jurisdiction of the Subcommittee on Constitutional Rights was assigned to the Subcommittee on Constitutional Amendments, chaired at that time by Birch E. Bayh of Indiana.

13.122 The records, 1955-76 (59 ft.), consist primarily of correspondence of the chairman and professional staff members, arranged by subject and thereunder chronologically by date of receipt, and general correspondence, arranged chronologically. The records also include research files, staff memorandums, and newspaper clippings. Much of the correspondence relates to individual cases of alleged abuse of constitutional rights. The pre-1969 subjects include civil rights and the loyalty-security program, restriction of travel abroad by U.S. citizens through denial of passports, confessions and police detention, freedom of the press as it relates to fair trials and freedom of information, rights of the mentally ill, rights of American Indians, military justice, rights of civil servants, and rights to bail and speedy trials. Among the miscellaneous records of the subcommittee are files on the efforts of Helen Sobell, wife of convicted spy Martin Sobell (a defendant in the Julius and Ethel Rosenberg espionage case), and others, to obtain the subcommittee's assistance in freeing her husband from Federal prison, and on the proposed deportation of Iva Ikuko Toguri D'Aquino ("Tokyo Rose") in 1956. The records are more fully described in an unpublished finding aid prepared by National Archives staff.

Posted by EBW at May 2, 2005 06:52 AM | TrackBack