The American Apartheid Should End
by Daniel T. Warren
Copyright 2004
Reprinted with permission
By Daniel T. Warren to
Upstate Citizens for Equality, Inc.
America responded in the 1960s to work towards eliminating apartheid in South Africa. It must now act to end apartheid within its own borders.
Under the prime ministership of Hendrik Verwoerd apartheid developed into a policy known as “separate development,” whereby each of the nine African (Bantu) groups was to become a nation with its own homeland, or Bantustan. An area totaling about 14% of the country's land was set aside for these homelands, the remainder, including the major mineral areas and the cities, being reserved for the whites. The basic tenet of the separate development policy was to reserve within the confines of the African's designated homeland rights and freedoms, but that outside it blacks were to be treated as aliens. Does this scenario sound familiar? It sounds a lot like the federal Indian policy of the United States. However, once the Indian leaves Indian land they are given equal rights with all non-Indians. When one remains on Indian land their rights are diminished. This applies as well to non-Indians subject to the jurisdiction of an Indian governmental entity. On Indian land your rights are not determined by the U.S. Constitution or the constitution of the State wherein the reservation is situated. Instead your rights are limited to those set forth in the Indian Civil Rights Act (ICRA).
The provisions of the ICRA differ in language and in substance in many respects from those contained in the constitutional provisions on which they were modeled. The provisions of the Second (Right to Bear arms) and Third Amendments (prohibition on quartering troops), in addition to those of the Seventh Amendment (right to a jury trial in civil cases), were omitted entirely. The provision relating to equal rights, differs from the constitutional Equal Protection Clause in that it guarantees "the equal protection of its [the tribe's] laws," rather than of "the laws." Moreover, the provision of the ICRA that prohibits cruel and unusual punishment and excessive bails, sets an absolute limit of one year imprisonment and a $5,000 fine on penalties which a tribe may impose. Finally, while most of the guarantees of the Fifth Amendment were extended to tribal actions, it is interesting to note that the ICRA does not require tribal criminal prosecutions to be initiated by grand jury indictment, which was the requirement of the Fifth Amendment specifically at issue and found inapplicable to tribes by the United States Supreme Court. There is, for example, no right under the Act to appointed counsel for those unable to afford a lawyer it only provides that "and at his own expense to have the assistance of counsel for his defense." A person who claims a violation of this act has as his/her only remedy a writ of habeas corpus. The writ's sole function is to release an individual from unlawful imprisonment; through this use it has come to be regarded as the great writ of liberty. The writ tests only whether a prisoner has been accorded due process, not whether he is guilty.
When will our society learn that separate but equal, separate development, self-determination, and apartheid is unethical, immoral and is prohibited by the U.S. Constitution and its amendments. In these times we must become one nation, not a nation with several hundred mini-nations within it, and all citizens of this country enjoy the federal constitutional protections set forth in our Constitution against all governmental entities. It is time to abandon the current federal Indian policy and unite all U.S. citizens under one form of government with one set of rights.
