New DNC Ad Citicizes RNC For Accepting Foreign Money; Indian Law Implications?

The DNC is running a the new political ad against the RNC. It appears to be titled “Stop Stealing Our Democracy.” Here is a link: RNC is upset about it, particularly Rove, who made a response on Fox News. Here is a link to his response on FoxNews:

Without getting into the accuracy of the allegations in of the ad, the ad makes two points. First, the RNC has accepted secret donations. Second, some of these secret donations have been foreign money. One is bad; together they are worse. Consequently, foreign money has its own independent negative consequences to “our democracy.”

Both democrats and republicans think this kind of behavior, if true, is bad. That's why the DNC made the accusation and that's why the RNC and Rove are so upset. Query: Why don’t we want foreign money influencing our elections? Answer: Non-resident, non-citizens who make donations are not part of our body politic and therefore should not have a say, i.e. they should not be able to govern us without being governed with us. This was one of the basic complaints of the American colonists leading to the American Revolution.

Problem: Given how much money tribes and individual Indians have donated to mostly Democratic candidates at both the state and federal level, a similar accusation could be made against the DNC. After all, tribes consistently oppose the application of state laws to tribal lands, and federal law has generally upheld the exclusion of state law from tribal lands. This means reservation citizens (tribal "members" that live on the reservation of the tribe of which they are a "member") can help make laws that do not apply to them similar to how foreign money can influence elections in governments to which the foreign donors are not subject. The tribes and the foreign donors bear some analogy to British Parliament of the 1760s and 1770s vis a vis American colonists.

This criticism has more traction at the state level because federal laws more often apply to tribal lands (making participation more appropriate). Nonetheless, where reservation citizens participate in making federal law that does not apply to tribal lands, the criticism would hold.

The big picture problem for tribes is that the law has been reconciling, and will continue to reconcile, this tension over time to the detriment of tribes if tribes continue to push for increased participation by reservation constituencies in the absence of anything resembling the 10th Amendment or respected sovereign borders. Put more simply, if tribes and reservation citizens keep acting like they are part of the state (up to and including the establishment of state legislative districts within the reservation), the law likely will treat them as such more and more.

Unfortunately, the problem puts tribes in a difficult position. Focusing on the state level for a moment, participating in, and encouraging reservation citizens to participate in, state elections has proven extremely effective in protecting tribal interests at the state level in the near term. However, the long term outlook is more questionable. Over time, tribes have lost pieces of sovereignty, case by case. A number of Indian law cases, either implicitly or explicitly, prohibit the application of tribal law to non-Indians inside the reservation, or uphold the application of state law inside the reservation, based in part on who can and can't participate in making the law in question--a participation analysis.

This is not to say that tribes should halt all participation, only that such participation should be done consciously in light of all the consequences such participation can have. The negative long-term implications need to be part of that analysis along side the positive short-term implications. The only entity qualified to do that cost benefit analysis is the tribe itself in light of all the circumstances of its relationship with the surrounding state. It will be interesting to see if the increasing level of tribal participation in non-tribal elections increases the role of participation analysis in Federal Law.

Posted on October 14, 2010 and filed under Citizenship, Federal Courts, General, Sovereignty.