One-Sided Interest Convergence

One-Sided Interest Convergence:Indian Sovereignty in Organizing and Litigation Steve Russell (bio) and Terri Miles (bio) Introduction: Interest Convergence and Coalition Politics Civil Rights and Tribal Rights There is not much of consequence to contemporary Indians that does not begin with Vine Deloria Jr., and we might claim that the great man kicked off this discussion with his observations of how the aims of Indians differ radically from those of the mainstream civil rights movement.1 Writing in 1969, and sensitive to the role African American resistance to Jim Crow played in the rise of Indian resistance to our own indignities, Deloria nonetheless reminded us that framing U.S. race relations as a black and white issue would still leave Indians invisible.2 "Separate but equal," anathema to African Americans, with good reason, would please us greatly. Of course, we do not mean "separate but equal" in the Fourteenth Amendment sense and we have no more interest in sitting in the back of streetcars than African Americans do.3 Formal equality in the dominant culture is our right since we were involuntarily made U.S. citizens in 1924,4 and that includes sitting where we please, voting where we live, living where we wish, and holding down any job we can do-exactly the rights that concern African Americans. But the Fourteenth [End Page 7] Amendment is irrelevant to tribal Indians when they are not in contact with the dominant culture. Indians were only mentioned twice in the Constitution, once in the commerce clause and once to exclude "Indians not taxed" (unassimilated tribal Indians) from census counts for legislative apportionment purposes. Did this change with the Fourteenth Amendment? No, it did not. The "Indians not taxed" exclusion for apportionment purposes is continued in the language of the Fourteenth Amendment. To the extent that the U.S. Constitution represents a social contract,5 Indians are not parties. When Indians declare themselves separate but equal-meaning outside the dominant culture-they enter a political discourse that is contested from all directions. The U.S. government, or at least the judicial branch of it, has unilaterally declared Indian governments to represent "domestic, dependent nations,"6 a description at odds with equality. Even more important for our current status, "separate" means, if anything, that Indians can enjoy whatever privileges pertain to tribal citizenship to the exclusion of noncitizens. This is at odds with the ideal of the melting pot, assimilation in a color-blind society, and with the modern legal trend of using the equal protection clause of the Fourteenth Amendment as a sword to hack away at any advantage nonwhites have gained in law or policy. That our goals differ from those of African Americans and that the basis for our claims differ does not mean we can learn nothing from them about tactics or strategy. On the tactical level the occupation of Alcatraz "signaled a new era of Indigenous political mobilization"7 and is often cited as a bookmark for a modern generation of Indian activism.8 Recognizing the difference between taking over a lunch counter or an office versus an entire island, that tactic still can be traced directly to the mainstream civil rights movement. On the strategic level, Indians have yet to match the decades-long litigation assault on Plessy v. Ferguson,9 even though Indians have no shortage of worthy targets.10 African Americans have learned a lot we can use, and we would do well to pay special attention to Derrick Bell's theory of "interest convergence."11 Bell argues essentially that segregation's political death warrant was not really signed until white people, or at least a critical mass of white people, saw their interest in ending de jure segregation.12 A similar interest convergence was harder to generate around de facto segregation because policies to attack customs rather than laws had more personal impact on white people, and in that personal impact the civil rights movement bogged down. Formal equality for African Americans was politically cheap compared to busing for racial balance and affirmative action, where real white people might confront real sacrifice. The problem for African Americans became the same as it is for

Framing (construction · Mainstream · Popular sovereignty · American Constitutional Law and Politics · Judicial and Constitutional Studies · Legal Systems and Judicial Processes

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