Isleta Pueblo Politics

By Christopher L. Abeita

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Religion on the Rez

Questions & Comments from Delanee

Mr. Christopher Abeita: I would like to pose the following legal questions and would like a response if possible. Besides the Isleta Tribal Constitution, doesn’t the Pueblo of Isleta also adhere to the U.S. Constitution? If so, doesn’t the U.S. Constitution contain a section entitled “Bill of Rights-Amendment One-Freedom of Religion? And if so, wouldn’t Amendment One-Freedom of Religion apply to us, tribal members?

Nonetheless, I suggest that all tribal members read and digest Amendment One-Freedom of Religion and search the internet for cases that were adjudicated by the U.S. Supreme Court. You will be amazed at the number of cases dealing with religion.

Furthermore, will the Pueblo of Isleta take a risk on a religious matter in Federal Court? Will Pablo Padilla be prepared to defend his work? Who will Padilla use as witnesses regarding the change, “Requiring Isleta quarter-bloods to be initiated into a clan before becoming eligible for acceptance as a tribal member.” If we are to preserve our customs and traditions as we all say we do, then who will be divulging our way of life whether it is verbal or writing to the Federal Court? (These documents will become public record).

To the Isleta Tribal Council–remember this issue will rest on your shoulders for years to come. We will remember your decision to divulge our way of life.

Finally, to the Isleta Tribal Enrollment Committee, shame on you for even thinking about using religion as a “weapon” against others. We will all meet our Maker one of these days and what will your answer be on Judgment Day? (SMH-Shaking My Head)! tsk tsk tsk

Response

Here’s my response in a nutshell.

The US Constitution does not grant governmental power to Indian tribes. Therefore, it does not directly restrain or limit tribal governmental action. See, Talton v. Mayes, 163 US 376 (1896). As sovereign nations, Indian tribes exercised powers of self-government long before the US Constitution was even created.

Of course, tribes are no longer fully sovereign. Tribes gave up certain powers to the US government by treaty.

Also, the US Congress took away other powers by statute. How? Because the US Constitution, supposedly, gives Congress absolute power over Indian tribal governments through the commerce clause. They call this “plenary power.” See, United States v. Kagama, 118 U.S 375 (1886).

The Bill of Rights refers to the first ten amendments to the US Constitution. Since it does not apply to Indian tribes, the US Congress enacted the Indian Civil Rights Act (ICRA) in 1968, which is based on the Bill of Rights.

The ICRA places limits on how tribal governments may exercise their powers of self-government. It was intended to protect the individual rights of all persons from tribal governmental action.

For instance, the ICRA protects freedom of religion. The Isleta Tribal Constitution also protects freedom of religion. They state as follows:

“No Indian tribe in exercising powers of self-government shall make or enforce any law prohibiting the free exercise of religion.” Pueblo of Isleta Tribal Constitution, Article III, Section 1(a). See also, 25 USC §1302(a)(1)

This means that the Isleta tribal government cannot force or coerce people into participating in any particular religion.

Nevertheless, the Tribal Enrollment Committee (TEC) is asking the Isleta Tribal Council to approve their proposed changes to the Tribal Enrollment Ordinance. One of the proposed changes states:

“The Descendant-Applicant must be initiated into his or her clan and must obtain a spokesperson or sponsor from his or her respective clan.” Section 3(B)(1) Proposed Tribal Enrollment Ordinance.

This change would force people to participate in a specific religion in order to become eligible for adoption as a tribal member. This requirement is a significant interference with a person’s right to choose and participate in whatever religion that he or she desires. It also interferes with a person’s right to be free from religion. So, if the Council approves the TEC’s proposed changes, strong arguments could be made to show that the changes violate the ICRA and the Tribal Constitution.

However, according to the TEC, Attorney Kaydee Culbertson drafted the proposed criteria to ensure that the changes would not violate the ICRA or the Tribal Constitution. So, perhaps Culbertson has done the legal research to determine that the TEC’S proposed changes do not violate the Constitution or the ICRA. 

Even so, if the Council approves the changes, a person could still challenge the changes before the Isleta Tribal Court and then the Isleta Appellate Court. The Pueblo’s judicial branch would then decide whether the law is constitutional.

A federal court would not likely hear the case because of the Pueblo’s sovereign immunity. Tribal sovereign immunity prevents courts from hearing most lawsuits against Indian tribal governments and tribal officials. See, Santa Clara Pueblo v. Martinez, 436 US 49 (1978). But, that’s a story for a later day.

What are your thoughts?

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