Democracy As A Slogan

“This is a republic, not a democracy” is the last thing that one committed to voting rights wants to hear, particularly from those defending the shortcomings of what most of the world (used to) regard as the last great democracy.  But this critique highlights a core failure of the American experiment that too few people have challenged as the country has become more democratic over the last 60 years: the fact that Americans love the ideas of democracy, to speak the words of democracy, but don’t want to do the real work required to live in a democracy.  Political elites push marginalized people towards a system that only works for the powerful, and they point to America’s sometime embrace of democratic norms as evidence that the system is, in fact, democratic.  The failure to recognize the difference between living in a democracy and living in a country with democratic norms means that rights can be infringed without recourse, political parties can maintain power without majority support, courts can be stacked with partisans…all while engaging the language of democracy.  Americans can borrow democratic rhetoric without truly committing to democratic ideals.

Democracy, however, is not just rhetoric; it is a commitment.  It is a way of life.  As much as we would like for it to be the American way, history has shown that our commitment to democracy has, at times, been fleeting.  The right to vote, for example, is considered the cornerstone of democratic legitimacy in our system.  Yet our history is littered with examples of wrongful disenfranchisement against people of color, women, the disabled, the impoverished, and others from all walks of life, with state sanctioned violence and intimidation being used to deprive people of this most precious right.  Today, we are still fighting these voting wars because the democratic norms that allowed for broader access to the ballot six decades ago have been easily eroded since they are not explicitly written in the text of the U.S. Constitution.

In happier times, the U.S. Supreme Court ensured the democratic legitimacy of our institutions, and their abdication of this role in recent years says far more about our cultural commitment to democracy than it does about the Court itself.  Many of the advancements we have had in democratizing voting rights came from legal decisions by five people in robes, and we have learned, with some difficulty, that a different set of five can undo that progress.  For every Warren Court, committed to a broader democratic vision, there have been far more Rehnquist and Roberts Courts that treat voting as a privilege rather than a right.  Indeed, the Supreme Court’s gutting of portions of the Voting Rights Act of 1965, the most successful piece of voting rights legislation in history, and its refusal to police the most egregious instances of partisan gerrymandering, show how tenuous our relationship is with democracy.  More recently, Wisconsin voters risked their lives to vote in-person during a once in a lifetime pandemic, and Texas has threatened to prosecute individuals who vote absentee due to fear of COVID-19, further illustrating the disconnect between our democratic words and our democratic actions.

Recent events in Minneapolis only confirm that America’s commitment to democratic rhetoric, rather than democracy itself, is pathological.  The murder of George Floyd at the hands of a white police officer has laid bare the fact that African Americans, ostensibly members of this alleged democracy, have never felt that the American political system is sufficiently responsive to the needs and concerns of that community.

Voter suppression and disenfranchisement have become increasingly commonplace in our elections, and our judicial system refuses to invalidate many of these tactics.  As such, calls for marginalized groups to seek recourse from a political system in which they have been excluded fall upon deaf ears.  The protests and violence that have erupted in Minneapolis and in cities across the nation are the end result when democracy is a slogan rather than a way of life.

 

On the Path to Gender Equality: From the 19th Amendment to the ERA

This year, the American Constitution Society honors the suffragists, who 100 years ago completed an arduous, decades-long journey to amend the Constitution and advance women’s rights in the United States.  In reflecting on their work, we are reminded that for many in the movement, access to the vote was not the final goal.  Rather, they viewed suffrage as a critical tool to address pervasive gender inequality.  In the century since ratification of the 19th Amendment, true equality for women and non-binary individuals has yet to be achieved but the fight has continued.

The History of the ERA: From Proposal to Ratification

First introduced by suffragist Alice Paul in 1923, the Equal Rights Amendment (ERA) provides that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Paul sought to build upon the success of the suffragist campaigns to further amend the Constitution and greater expand the constitutional protections for women.  She noted, “[w]e shall not be safe until the principle of equal rights is written into the framework of our government.”

While Congress would take up Paul’s amendment that same year, it would be fifty years before it passed the ERA and sent the amendment to the states for ratification with a deadline of 1979.  Congress subsequently extended this deadline by three years, but no further states ratified within that timeframe. Recently, however, advocates and activists have successfully pushed to achieve ratification in three additional states. On January 27, 2020, Virginia made history and became the 38th state to ratify the ERA, satisfying the final requirement for amending our Constitution found in Article V.

The Legal Challenges Remaining

Before legislators in Virginia had taken their final vote, legal challenges were already under way. In December 2019, with newly-elected Virginia legislators indicating interest in ratification, the Attorneys General of Alabama, Louisiana, and South Dakota brought a preemptive suit in the District Court of Alabama claiming that not only did the ERA fail to be ratified by the required 38 states, only 30 states had actually properly done so as “[f]ifteen States had not ratified it, and five States had ratified but rescinded their ratifications.” Three weeks before Virginia took its final vote, the Department of Justice issued a slip opinion concluding “that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.”  The next day, Equal Means Equal filed suit in the U.S. District Court of Massachusetts seeking to compel the Archivist of the United States to record Virginia’s ratification and recognize the ERA as the 28th Amendment. Following Virginia’s ratification, the Attorneys General of Virginia, Illinois, and Nevada, states that had ratified the ERA after the extended Congressional deadline expired, also brought suit against the Archivist in the U.S. District Court of the District of Columbia, claiming that “Article V does not empower Congress to dictate when a State may consider—much less ultimately ratify—a proposed amendment.”

This case eventually subsumed the Alabama case, with the Attorneys General of Alabama, Louisiana, and South Dakota joining as intervenors and dropping their separate action.

Plaintiffs in the Massachusetts case similarly argue that the deadline for ratification imposed by Congress, and subsequently extended by a simple majority vote, is an extra-textual provision, is untethered to the amendment itself, and is a “constitutional nullity.” Others have urged Congress to answer the question themselves and remove the deadline, noting that ”doing so would eliminate the argument that the validity of the Equal Rights Amendment depends on something other than Article V of the Constitution.”  In February, the House of Representatives voted to remove the deadline imposed by the 95th Congress, but the bill has now stalled in the Senate despite bipartisan support.

The Ongoing Need

Despite key legislative protections found in the Equal Pay Act and Title VII, women still earn only 82 cents for every dollar made by men and the disparity is even greater for women of color.  And while the Violence Against Women Act created a federal system for addressing sexual violence and domestic abuse, Congress has failed to reauthorize the Act at a time when demand for the system has dramatically grown. Moderate gains have been made through the courts. In 1973, the Supreme Court recognized a constitutional right to choose to have an abortion, although some experts note the key holding of Roe has become a right in name only for many women. In the case of constitutional sex discrimination claims, the Supreme Court applies intermediate scrutiny to claims of constitutional sex discrimination. Many advocates believe that “there are lingering legal and policy inequities the ERA would help rectify—among these, workplace discrimination, including on account of pregnancy; paid family leave; and increased protection from violence and harassment.”

This federal patchwork of laws, regulations, and judicial doctrine provides women and non-binary individuals protection under the law, but the strength of that protection is subject to the whims of those in power at any particular moment. The Trump Administration, for example, has been actively hostile to recent gains made for gender equality – attempting to roll back regulations designed to decrease the wage gap, abandoning plaintiffs with gender discrimination claims midway through litigation, and the list goes on. Put simply, the legal tools currently available to redress gender equality are not sufficient.

As Representative Barbara Jordan argued during the debate on extending the congressional deadline for ratification, “[t]he Equal Rights Amendment proposes to fulfill our liberties.” In 2020, we honor those who have been fighting for centuries to fulfill our liberties and have been a part of this long march toward gender equality.

Unfair Choices: Can Workers Refuse to Return If Their Workplaces Are Unsafe? 

Since the beginning of the SARS-CoV-2 pandemic, some workers have faced a gut-wrenching decision: stay at work and risk illness and death, or leave work and lose their job.  Although state and municipal orders closed many types of businesses to the public, and some workers have been able to transition to work at home, there have been a core set of workers—labeled “essential”—that have continued working throughout the crisis.  We have heard stories about healthcare workers, meatpacking plant employees, and warehouse workers whose employers remained open and in some cases failed to provide their employees with the necessary safety measures.  Too many of these front-line workers have died from COVID-19.  As states begin the process of lifting their stay-at-home orders, many more employees now must face the same choice: risk death or lose your job.  

If workers choose to stay home fearful of the novel coronavirus, are they entitled to unemployment compensation?  Perhaps.  Our system of unemployment insurance is a complicated and intertwined system that includes the federal government, state governments, and employers.  Like other federal programs such as Medicaid, the unemployment compensation system receives substantial funding from the federal government, which provides the overall legal framework.  However, individual states must enact their own programs with their own sets of rules and procedures.  Under state rules, workers must have been terminated from employment or must have left the job for “good cause.” The definition of good cause is generally fleshed out on a case-by-case basis, with state labor and employment agencies and courts deciding whether a particular claimant can show sufficient justification for leaving the job.  To be eligible for compensation, workers must additionally be able to work, available for work, and actively seeking work while unemployed. 

At the onset of the pandemic, the federal government took steps to broaden coverage of those workers who lost their jobs.  The Coronavirus Aid, Relief, and Economic Security (CARES) Act provided an additional $600 per week for individuals who were collecting regular unemployment compensation.  The Act also allowed states to provide compensation to workers whose benefits had been previously exhausted, and to extend benefits for all unemployed workers up to an additional 13 weeks beyond the standard 26-week timeframe.  The Federal Families First Coronavirus Relief Act (FFCRA) further asked states to temporarily loosen their requirements for providing compensation in order to receive additional federal funding.  The legislation makes clear that benefits should be extended to those who have been diagnosed with COVID-19, those who are caring for members of their household with COVID-19, and those whose businesses are closed because of the virus. 

Early on in the crisis, the Department of Labor emphasized that states should provide more flexibility in allowing claims due to the pandemic.  In its March 12 guidance, the Department reminded states of their flexibility in implementing the compensation requirements.  The guidance specifically provided that states may provide for unemployment compensation if an individual is quarantined by a medical professional or under government direction, or even if the worker self-quarantines due to risk of exposure or infection.  On March 22, the Department offered additional guidance for the states as to the interpretation of “good cause” to leave a job. 

Noting that states had statutory authority to temporarily amend their “good cause” provisions, the Department encouraged them to do so to align with efforts to combat the pandemic.  In particular, states could “include leaving work due to a reasonable risk of exposure or infection (i.e., self-quarantine) or to care for a family member affected by the virus.” 

 However, the tone has changed. On its webpage FAQs, the Department responds to a hypothetical question from someone whose employer has remained open but who quit because they were “afraid of getting coronavirus from customers coming to the store.”  The Department instructs: “voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible” for benefits.  Quitting out of fear of the virus is only an option for those who “have been advised by a healthcare provider to self-quarantine as a result of such concerns”—for example, “an individual whose immune system is compromised by virtue of a serious health condition.”  And in guidance issued on May 11, the Department of Labor warned states to “ensure the integrity of unemployment insurance programs” by detecting “waste and fraud” and reporting it to the Department’s Inspector General.  Yes, states had flexibility in setting eligibility requirements, but they could not let those requirements lapse.  Reminding states of their obligation to rigorously check their rolls, the Department stated: “States should expect significant oversight, review and scrutiny of their unemployment compensation programs’ integrity.”   

States have gotten the message.  As state officials have reopened certain segments of their economies, they have warned workers that they are guilty of fraud if they refuse to return to an open business but continue to collect unemployment insurance.  The Arkansas Secretary of Commerce said that if a worker refused to return to their job, “That’s a fraudulent claim for us, and we will be tracking that.”  The Alabama Labor Secretary said, “It’s important for workers to know that if their employer reopens or otherwise calls them back to work, they must do so, unless they have a good work-related cause for not returning.”  And the Iowa governor told employees that they won’t be eligible for unemployment benefits if they don’t come back to work, even if they’re concerned about contracting the coronavirus. Similar sentiments have been expressed by state officials in Georgia, New York, and Tennessee. 

Workers may ultimately be able to claim “good cause” to refuse to return if their workplaces are deemed unsafe.  States will generally interpret this exception based on the facts of the case, meaning that workers will not know ahead of time whether their claim for good cause is valid.  A claim has a greater chance of success if the employer is not following documented standards, such as the CDC guidelines for reopening businesses.  Federal law prohibits states from denying unemployment compensation if the “wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.”  (26 U.S.C. § 3304(a)(5)(B).)  So if a particular employer has conditions that are dramatically worse than other similar businesses, employees should have good cause to refuse to return. 

In addition, workers should inform their employers about concerns and should report unsafe conditions to the Occupational Safety and Health Administration (OSHA).  However, to this point hundreds of workers have filed OSHA complaints, and there is little evidence of enforcement.  The agency announced in April that on-site inspections would only occur for reports of coronavirus-related fatalities or threats of “imminent danger;” employers would be trusted to investigate other claims themselves. Although OSHA has provided a booklet with guidelines on managing coronavirus dangers, the AFL-CIO has sued OSHA demanding that the agency issue mandatory rules, rather than guidance.  If unsafe conditions put members of the public at risk, workers can also look to state and local public health officials for help. 

Although the decision to return to work will ultimately be an individual choice, workers should not be left on their own.  We need strong and clear guidance from federal and state officials on the appropriate safeguards for different types of workplaces.  And employees should have a role in deciding whether the business will reopen, and if so, what protections are in place for their safety.  Until we have confidence that employers and government officials are doing their utmost to reduce the spread of SARS-CoV-2 infections, states should interpret “good cause” to forego a return to work generously, giving workers the benefit of the doubt in protecting themselves.   Workers need to stay out of workplaces that would put them and their loved ones in jeopardy.   

2020 Vision: What Can a Governor Do When the 2nd COVID-19 Surge Comes?

Those who cannot remember the past, are condemned to repeat it. George Santayana

January 1st seems like ages ago, when we thought that 2020 meant clarity of vision and foresight. Since then, the world has turned upside down—but legal precedent has not. Many still claim that it’s unlawful for any governmental entity or official to impose restrictions upon travel either across state borders or within a state in an effort to reduce odds of additional surges of COVID-19 infections and deaths.

I disagree.

COVID-19 is not the first, nor will be the last, pandemic or epidemic to ravage the world. It has killed more people in 4 months than the previous 10 years of epidemics. As of May 16, the U.S. has far more confirmed COVID cases and deaths than any other country; indeed, while the U.S. has only 4.25% of the world’s population, in just three months it has 32% (1.5 million) of the confirmed cases and 28.6% (89,000) of the deaths world-wide.

The 1918-19 Spanish Flu pandemic is one of several that featured multiple, more severe waves of infections; however, such nonpharmaceutical interventions as school closure, cancellation of public gatherings, and shelter-in-place or quarantine measures—if sustained—were found to reduce the number of cases and deaths.”[i] But today, epidemiological models and scientists’ testimony predict similar waves to occur this year, especially given premature lifting of nonpharmaceutical interventions. Almost no state has met the minimum standard of 14 days of declining cases before reopening.

Which raises two fundamental questions: what could the federal government do if it chose to implement mandatory nonpharmaceutical measures; and second, if it doesn’t so act, can a State’s Governor impose gathering, or cross-border or within-state travel, restrictions?

Congress delegated power to the Surgeon General to act as “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” While the CDC issued a “No Sail” order for cruise ships for  “[p]reservation of human life; preventing further introduction, transmission, and spread of COVID-19 into and throughout the United States”, it has not issued a similar “No Non-Essential Travel” order with similar goals for movement across state borders.

Given the likelihood of impending surges of infection and no federal action, can a Governor legally impose stricter travel and gathering restrictions within her state and at its borders? Yes. First, the President cannot overrule such State action; federal law on communicable diseases doesn’t supersede State laws addressing diseases like COVID-19.

Second, since 1886 the U.S. Supreme Court has ruled against federal preemption of state quarantine laws in the absence of a conflicting federal law--“The laws of the state on the subject are [presumptively] valid,” so long as states do not act in an unreasonable or arbitrary manner as to rights and liberties such as the right to interstate travel, and the right to exercise one’s religion through in-person mass gatherings.

Federal courts currently deciding challenges to State COVID travel and gathering restrictions rely upon the 1905 Supreme Court decision of Jacobson v. Massachusetts:

[A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members….in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Churches challenging Governors’ COVID restrictions on in-person services have largely been unsuccessful. Federal judges generally conclude that “the Constitution does not guarantee “an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. Recognizing that the need to protect the public may trump individual rights during a crisis, the Supreme Court has held that states and municipalities have greater leeway to burden constitutionally protected rights during public emergencies.”

We must remember pandemic and legal history when devising 2020 strategies for minimizing COVID-related harms. Locations that lifted social distancing mandates too early experienced a second surge of Spanish Flu deaths. Currently, some states are lifting nonpharmaceutical restrictions while having shortages of personal protective equipment and testing kits, while neighboring states are still trying to shelter at home.

Now is not the time for partisan politics. A state’s well-crafted stay-at-home restrictions should lawfully be allowed to continue for as long as a Governor and public health officials reasonably deem it necessary. Each state should have the final say for the fundamental protection of its citizens’ public health, safety and welfare.

In 2020, that is what the law, clear vision, and foresight require.

For more information, please read Professor Thaler’s complete article 2020 Vision: What Can a Governor Do When the 2nd COVID-19 Surge Comes?

 

The Standoff: South Dakota and Native Tribes

The story of COVID19-induced roadblocks and an ensuing spat between South Dakota Governor Kristi Noem and Cheyenne River Sioux Tribe (CRST) Chairman Harold Frazier illustrates the full arc of America’s story of immigrant settlement, colonization, and conquest of America’s indigenous peoples by all those not indigenous to America.

Tribal Sovereignty

When you look up the word ‘sovereignty’ in the dictionary, it doesn’t have a separate entry for tribes.  Like any, the starting point for tribal sovereignty must be the three generally accepted international precepts of sovereignty: territorial integrity, distinct peoples, and recognition of that sovereignty by other sovereigns that actually matter.  Originally with all tribes, and continuing today with a few tribes, the territory and peoples were so distinct and intact that together we could discern a recognized indigenous polity and refer to their peoples as “tribe citizens”.

From there, the easy thing to say is – like any fly by night payday lending business worth its weight in snake oil would say to a tribe today – “you tribes are sovereign and can do whatever you want.”  Alas, would that be true.

Of course, my message to non-Natives about how things should be would sound like eerily similar snake oil.  But as a tribal member and sometimes tribal citizen, as a descendant of a bloodline of hereditary leaders, and especially as a twice-elected former chief executive of a federally recognized Native Nation, my messages are always conflicted, torn between indigenous and non-indigenous audiences, with divergent messaging.  So too this blog post.

Background Information for Non-Natives

While early SCOTUS opinions recognized tribes’ territorial integrity, bilateral treaties with tribes quickly began the slippery slope of territorial permutations, usually in the form of a promise by the US to prosecute “bad men among the whites.”  Incidentally, those treaties generally do not say a tribe cannot also bring bad whites to justice; they simply promised the US would do so if asked.  However, due to then Justice Rehnquist’s belief in (place tongue firmly in cheek) a restricted federal government, judicial restraint, and strict textual construction, that old treaty provision has come to play an outsized role today.

When you look for the word treaty in the constitution, you won’t find a separate provision applicable only to the Indian tribes.  Treaties – all treaties to which the US is a party – are the Supreme Law of the Land.  After the treaty-making period with Native Nations ended in 1871, Congress made two deep unilateral incursions into both the territorial and popular sovereignty of tribes.  First, Congress enacted the Indian Major Crimes Act, asserting federal jurisdiction over certain major crimes committed by tribe citizens.  Second, Congress enacted the Dawes Act or General Allotment Act, dividing many tribes’ territories, including the CRST, in severalty, separate parcels of private real property, and declaring any remainder as “surplus” open for homesteading.  Of course, every American State is also subdivided in severalty, and yet their respective territorial boundaries remain intact.  Not so with Indian tribes.

Fast forward, and we have people who are not citizens of the CRST who either reside inside the tribe’s reservation territory or who simply pass through, raising thorny and faux-thorny jurisdictional issues.  In 1978, SCOTUS, speaking through then Justice Rehnquist, issued Oliphant v Suquamish Tribe, holding that tribes, by virtue of their “dependent status” – not due to a treaty, not even attributable to some conquistadorish federal statute – somehow lost sovereignty by virtue of their “dependent status”, whatever that is, and no longer possess criminal jurisdiction over persons who are not “members” of a tribe (at least those non-Natives who reside within their territories but who cannot participate in their government – but that’s another blog post).  Rather, the federal government, or perhaps even the surrounding State in cases of ‘victimless” crimes, would have criminal jurisdiction within a tribe’s territory.

Then, in 1981, in Montana v U.S., SCOTUS extended Oliphant to the regulatory context, but this time with two broad exceptions: while tribes do not have full sovereignty, a tribe may assert regulatory jurisdiction over 1) any person in a consensual relationship with the tribe or its citizens; and 2) any activity that affected the health, safety, and political integrity of the tribe (if those two exceptions sound familiar, that’s because they are shorthand for the two shields of sovereignty and jurisdiction that protect States in our federal system (but that too is another blog post).  At least the divergent approaches between criminal and regulatory jurisdiction makes some sense because of the different levels of substantive rights and due process at issue: life and liberty in the criminal context, less so in the regulatory context.  Then, in 1997, in Strate v. A-1 Contractors, SCOTUS, speaking through Justice Ginsburg, confirmed that tribes possess inherent regulatory powers over all persons or conduct that threatens or has some direct effect on the health or welfare of the tribe, including upon the state highway at issue in that case – mirroring the issue in the current standoff between South Dakota and CRST.

So, yes, despite impending death by a thousand cuts, some measure of tribal sovereignty and jurisdiction withstands the threat by South Dakota’s governor.  The Cheyenne River Sioux Tribe can place regulatory roadblocks to the entrances of its territory to protect the health and welfare of its people.  But what if a roadblock causes an accident or if the coronavirus is negligently transmitted … which sovereign will have jurisdiction?  Whose law will apply?  Would enforcement of a judicial order be an issue?  Unfortunately, in Strate, Justice Ginsburg also made one of the biggest juridical gaffes of her career, reasoning that the tribe lacked jurisdiction over civil causes of action – the car accident at issue – because the tribe or the federal government failed expressly to reserve civil jurisdiction in the instrument granting an easement to the State for the State highway.  Now, perhaps public sovereigns like states and tribes shouldn’t be interacting with tools of private property, such as easements.  But did she really think granting an easement is tantamount to granting territory and jurisdiction?  Wouldn’t it be fun for us to research our own property’s chain of title to see if our respective State expressly reserved jurisdiction over it….

And then there’s the separate question – why is it always the tribe’s sovereignty and jurisdiction in question?  From whence comes the South Dakota Governor’s authority?  I’m thinking South Dakota’s Constitution does not say “The Governor shall have the authority to govern outside the State’s territory as long as the governed are Indians.”  Or “The Governor shall have the authority keep any Indian tribe from protecting the health and safety of its members.”  If it did have some such a silly provision, how would that square with the revolutionary idea of “government by the governed”?  Perhaps I shouldn’t use the word “authority” at all; perhaps I should just say said good old-fashioned “power”.

Well, well, well.  A quick perusal of the South Dakota Constitution turns up this provision: “Second. That we, the people inhabiting the state of South Dakota, do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundary of South Dakota, and to all lands lying within said limits owned or held by any Indian or Indian tribes;” (emphasis unnecessarily added)  In my adopted state of Wisconsin, the Legislature  challenged the Governor’s power to issue emergency orders to protect the health and safety of its citizens; I have a sneaking suspicion the South Dakota legislature won’t be challenging South Dakota’s governor for this particular infringement of the rights of CRST.

Tribes as State Political Subdivisions

So, why do State governors like Noems, blithely assume they govern Indian Country and all its occupants?  First, because the General Allotment Act has resulted in her non-Native citizens residing and owning substantial amounts of property in that territory.  More complexly, that Act has resulted in States governing private property owned by Natives themselves – even within Native reservations.  Second, Governor Noem assumes governance over Indian Country because 1) Native Nations (with rare exception) simply refuse to govern private property in their territories, even property belonging to their own citizens, and 2) because citizens of Native Nations, often with the support of Native leaders, file lawsuits arguing that they are citizens of her state and can vote in her state’s elections!

So, of course she thinks she governs them and their territory; they are her citizens, after all.  Their reservation is surrounded by the State and its private property is governed by the State.  Applying the Ginsburg test, the tribe and Bureau of Indian Affairs likely failed to reserve jurisdiction over such property.  And if she governs the two cornerstone prongs of sovereignty, with the tribe’s acquiescence or even consent, who is the real sovereignty there – South Dakota or the Cheyenne River Sioux Tribe?  So, the more important question might be not why state governors assume they govern, but why do tribes themselves abide State governance – seemingly condoning it?  Is it self-victimization borne of conquest and colonization and settlement?  Is it a failure to act and react positively with their own cultural worldviews?  A measure of both?

A Message for My Fellow Natives

Now for a message directed to Indigenous peoples and their leaders:  Claiming to have sovereign territory while allowing another sovereign to govern property in that territory hardly meets the ‘territorial integrity’ prong of sovereignty.   Claiming to be distinct peoples while facilitating citizenship of those same peoples in the neighboring or surrounding state hardly meets the ‘distinct peoples’ prong of sovereignty.  In short, one of the main reasons our territory is being dismantled is because we refuse to govern property within it.  The other main reason is that we blur any distinction between the political identity of our peoples and their peoples.  For starters, we don’t seem even to understand what distinct means.  Distinct in cheekbones?  Distinct from Latvians?  Distinct from other tribes?  No -- distinct means the collective identity of our peoples – their cultures and social norms and values – are discernibly different from those neighboring and surrounding sovereignties and their peoples.  You don’t get there by having your peoples assume the civic identity – the citizenship – of surrounding or neighboring sovereigns by voting in their elections and living by their laws – especially their property laws.

If certain people get their way how many of you think the new federal constitution will recognize the sovereignty of Indian tribes?  For that matter, if such a convention entirely dissolved the Union, raise your hand if you think South Dakota will then recognize a separately sovereign Cheyenne River Sioux Tribe in its borders?  The time to maintain a separate territory and peoples is now.

In the end, the good Governor from the great state of South Dakota may come to understand and respect our sovereignty.  I mean, after all, we are not building a wall, which surely the good Governor would then have grounds to oppose.  I mean, who wants to be kept out of such a great place filled with abundance and opportunity?

Radical Far-Right CFPB Taskforce Threatens Consumer Protection

This blog is cross-posted in the Economic Policy Institute's Working Economics Blog.

 

As unemployment approaches levels last seen during the Great Depression, and requests for mortgage forbearance increase every week, the Consumer Financial Protection Bureau has proceeded doggedly ahead in undermining consumer protection. The CFPB has suspended enforcement of most of the rules requiring mortgage servicers to help homeowners who have fallen behind in their payments; eased disclosure requirements for remittance transfer providers; and reduced collection and reporting of critical fair lending data. Apparently unsatisfied with rolling back regulatory requirements in the middle of a pandemic-driven economic crisis, the CFPB is also paying hundreds of thousands of dollars to a small “taskforce” of conservative academics and industry lawyers whose charter is to re-consider every aspect of consumer protection.

Although Congress specifically mandated that the CFPB’s advisory committees follow federal sunshine laws, the CFPB has allowed the taskforce to meet without notice behind closed doors. The first public glimpse of its plans was a sweeping request for information issued in late March. While the rest of the country was struggling to address the spiraling economic threats posed by COVID-19, the taskforce asked questions about weakening fair lending laws and deregulating consumer finance markets. Following the CFPB’s expected repeal of consumer protections on payday loans and encouragement to banks to make their own high-priced, short-term loans, the taskforce asked about “impediments” to expanding such lending. It questioned whether consumer benefits like privacy and accuracy in credit reporting are worth the cost to industry and suggests that enforcement penalties discourage competition. In the midst of the pandemic, the CFPB task force is giving the public a mere 60 days to comment on fundamental questions like “the optimal mix of regulation, enforcement, supervision, and consumer financial education,” how best to measure whether or not consumer protection is effective, and which markets should and should not be regulated.

The taskforce explicitly centers “informed choice” and “competition” as the preferred means of providing consumer protection, with enforcement only as a backstop. Left unchallenged, this framework threatens a dangerous future. Lenders, not consumers, choose debt collectors and loan servicers, and decades of competition in those markets has not reduced the volume of consumer complaints about harassing and abusive behavior.  Even in markets where consumers can, in theory, choose the product and provider, abusive lenders often make that choice for them. The vast majority of homeowners don’t comparison shop for a mortgage, the largest portion of many family budgets, and in the last great economic crisis millions of homeowners lost their homes because of loans they couldn’t afford with terms they couldn’t understand.

Informed choice is a fantasy in most modern consumer credit markets, with pricing driven by obscure algorithms and marketers focused on exploiting consumer weaknesses. Competition in many consumer financial markets may benefit corporations and investors but not the ordinary people who foot the bill and lose their homes.

The taskforce cites the National Commission on Consumer Finance as its inspiration. But unlike the five-member, ideologically homogeneous taskforce, accountable only to the director of the CFPB, the National Commission on Consumer Finance  was specifically authorized and funded by Congress; its work was bipartisan; a majority of its 12 members, supported by dozens of staff and student researchers, were members of Congress accountable to the public; its work spanned four years and drew on multiple public hearings with hours of testimony from leading consumer advocates as well as individual consumers and lenders. Where the National Commission concerned itself with “market excesses,” the taskforce asks only about “informed choice.”  Where the National Commission recognized that consumers can be burdened with excessive debt, the taskforce’s only reference to burden is that of the cost of compliance with consumer protections.

We have only until June 1 to submit comments on this information request. This may be our only chance to weigh in before the taskforce issues its report. If we think -- as Congress did in 2010 when it created the CFPB, mandated consumer protections, and set the parameters for measuring the effectiveness of consumer protections -- that consumer protection requires more than informed choice and competition; that enforcement, and supervision, and regulation are critical pieces of ensuring  effective consumer protection; and that education alone is not and never can be enough, then we must comment.

In the wake of the 2007-08 foreclosure crisis and the Great Recession, Congress recognized the central role that vigilant, focused consumer protection plays in ensuring economic stability. It created the CFPB so that never again would slipshod consumer protection derail economic prosperity. That focus and those consumer protections are threatened now.

Diane Thompson is an Open Society Foundations Leadership in Government Fellow. Previously she was Deputy Assistant Director and Acting Assistant Director of the Office of Regulations in the Consumer Financial Protection Bureau.