This month, on the Great Plains of Montana, a man named Bryon Farmer learned a hard lesson about the difference between collective rights and individual rights.
Individual rights protect people from the government and all of its political subdivisions. By contrast collective rights — sometimes called things like "states' rights" — protect the ability of groups to do things, sometimes to the detriment of individual freedom.
Byron Farmer had to learn the difference because he's a member of the Blackfeet Tribe, and wants to speak his mind about its governance.
The Blackfeet Tribe has been riven by infighting. The tribal council suspended four of its nine members. Tribal council member Shannon Augare — also a state senator — has been charged by the feds with drunk driving after an incident in which he allegedly drove away from a traffic stop asserting immunity. There has been factionalism and protest.
All that Byron Farmer wanted to do is express his feelings at the North American Indian Days celebration in Browning. He planned a satirical protest float in the parade. To that end, he wrote a post on the Facebook group Blackfeet Against Corruption :
25 DAYS!! 25 DAYS!! Countdown: 25 days to the big show that no Blackfeet will ever forget and will make Indian Country History!
On Saturday July 13, 2012 at North American Indian Days we will show our tribe, Indian Country, America, and the world that the Blackfeet will no longer allow corrupt leaders, illegal actions, politicians that ignore the will of the people, and abuse of our laws and people. We will show all Indians that you CAN take back your reservation when corrupt and incompetent politicians get out of control.
If by July 13th the BTBC has not reinstated the four suspended Councilmen and has not filed criminal charges against Shannon “Silent” Augare the world is going to see something never seen before in Indian Country, and it will all play out in front of the global media: TV, newspapers, YouTube, etc.
If any of the 6 BTBC members – WS, SRC, FBCR, EOP, SA, or LG show their faces in public, even for a minute, they will instantly face something incredible, overwhelming, and unprecedented and the media will be there to capture it. If they hide, the world will know why and we will forge ahead with our plans anyway. The show will go on with or without them.
We are done showing our cards to the BTBC. They will just have to guess at what we have planned and wait like everybody else for the big day. We promise it will be exciting and make headlines worldwide. And we can tell you we are not planning anything violent or illegal so the BTBC will not be able to stop us, no matter how many outside police they call in. Calling a “State of Emergency” and hiding behind a police line isn’t going to save them this time.
The BTBC canceled the public flood memorial making a laughably ridiculous excuse about weather (but of course the weather was fine that day). The real reason was that the BTBC knew we had massive protests planned and there were film crews on hand that would have captured the protests and heckling. But this time they don't dare cancel NAID to avoid public humiliation, so see you there!
25 DAYS!! 25 DAYS!! Countdown: 25 days. Be there!
This was classic political expression protected by the First Amendment. It contains no true threats, it expressly states that there will be no violence or lawbreaking, and it directly addresses government officials and political issues.
But Byron Farmer was charged and jailed over it by tribal officials. He spent five days in tribal custody before making bail. Blackfeet Chief Prosecutor Carl Pepion charged Farmer with violation of the Blackfeet Tribe's Ordinance 67. That Ordinance forbids, among other things, certain statements about the Blackfeet tribal council:
harassment without merit, the distribution of false or misleading documents or writings, the making of slanderous or libelous statements, false innuendoes or misleading statements meant to harm injure, discredit or causing the member to be exposed to hatred, ridicule or contempt.
This is not the first time the Blackfeet tribal council has used Ordinance 67 to suppress dissent; last year they used itto charge a council member who was preparing petitions for removal of other council members.
How can such an ordinance — or any prosecution premised on it — stand, under the First Amendment?
That brings us back to the difference between individual and collective rights.
The United States' treatment of Native Americans has been a mixture of ignorance, brutality, murderousness, and a pattern of pathological oathbreaking that would make a heroin addict wince. It has since subsided — mostly — into corrupt and fraudulent incompetence, indifference, and amoral truculence.
The United States has made gestures of contrition and correction, including a half-century effort to give surviving tribes sovereignty. That sovereignty includes jurisdiction over criminal charges against tribal members on tribal lands.
Does that mean that members of Native American tribes have no right to free speech? No — in theory. The Indian Civil Rights Act of 1968 says that tribes can't "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." But here's the rub: sovereignty also means that the tribes get to enforce that right. The Supreme Court has ruled that, in general, only tribal courts have the right to decide whether tribal practices comply with the Indian Civil Rights Act. Byron Farmer and people like him can't sue in state or federal to invalidate Ordinance 67 – they have to rely on a tribal court, connected politically and culturally to the tribal council. Mr. Farmer could seek a writ of habeas corpus in federal court to get out of tribal custody, but that's a painfully slow process, one that allows the tribe to harass dissenters with short-term incarceration with effective impunity.
This is, perhaps, why Native American journalists have experienced extensive censorship in connection with the tribal press.
Anyone who thinks that I am suggesting that Native Americans are more prone to censorship than other American haven't paid attention to what I write about. They aren't. Humans are regrettably inclined towards censorship. Tribal councils are simply more free to censor than other governmental entities — "free" as a result of collective rights extended to them in a vain effort to put right what we did so very wrong.
Byron Farmer — as part of the Blackfeet Tribe — enjoys the collective right of self-determination, to the detriment of his individual right of freedom of expression. This is not a bug; this is a feature.
I've offered Mr. Farmer my help in trying to find pro bono counsel in his area — that's a tall order, given that I probably don't have too many readers who practice in tribal court. However, perhaps there's someone admitted in Montana who would be willing to help him with a habeas corpus petition to derail his tribal prosecution.
In the meantime, though the trial council is largely immune to the First Amendment, it isn't immune to the more speech remedy. Tell them what you think on one of their Facebook pages. Their web site with tribal contact information was up this weekend; as of this writing it is down. There's some alternative contact information here. Be polite and respectful, always bearing in mind that the person screening your mail often isn't the one making the bad decision. Write and speak, and never doubt that is a mighty privilege.
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