Guilty of Being Indian: Anti-Indian Discrimination in the Extreme

Let me begin this blog with a disclaimer. I have recently returned from over a month on reservations in South Dakota, Oklahoma and Arizona. In the 30 years I have been making these trips, the situation has not improved. The Pineridge reservation continues to be the poorest county in America. According to the CDC suicides have increased, untreated health conditions such as diabetes continue to rise in numbers, infant mortality remains high. As a paralegal, one of the things I do while there is help people understand and move forward with legal issues and problems. Criminal justice is more criminal than justice as NPR discovered when investigating rape reports and convictions. In 2007, Native women had the highest rate of rape of any ethnic group, 2.5 times higher than the national average. This prompted Amnesty International to investigate and report on justice in Indian country. Their report firmly lays the blame on the justice system and the courts for this problem.

This situation was very present for me as I read the article in The Atlantic about the virtual nonexistence of Native American judges in the United States. The author takes issue with the Senate patting itself on the back for finally confirming an openly gay judge while having confirmed only one openly Indian judge in the history of this country. In 224 years, only one.

As it happens, a Native American judicial nominee is currently waiting on confirmation. Arvo Mikkanen was nominated 6 months ago. He received unanimously qualified ratings from the American Bar Association. His nomination was pronounced “dead” by the white Senator from Oklahoma. Apparently, the White House did not consult them before nominating him. This breach of professional etiquette is the theoretical reason for his nomination being stalled without hearings or consideration. Mikkanen makes his own case persuasively. He questions the reasoning of the senators and also of the White House which placed him in this position and has failed to speak on his behalf.

As a lawyer and a nominee, he is circumspect in his questioning. As a Native American and a race scholar, I intend to be more critical. Oklahoma is the end of the Trail of Tears. It has the second largest native population (after Alaska) of any state in the country. White Oklahoma elected officials have a long history of expressing that being Indian is reason enough to conclude incompetence. Not one of the elected officials in Oklahoma has spoken in defense of Mikkanen or elaborated on what makes him unfit.

Additionally, the White House has remained silent. I would suggest as Cohen hints that Mikkanen is a symbolic gesture and a pawn in the White House game to pretend to support Native justice while using Republicans as the foil to keep from actually delivering on that justice. To wit, the Cobell settlement for pennies on the dollar languished for almost 2 years before being approved after having spent 15 years in the federal courts. The Department of the Interior, which oversees Indian lands and resources has yet to promulgate new standards for leases, trust management or native protections. While signing the Native American Law Enforcement Act, Obama said,

government’s relationship with tribal governments, its obligations under treaty and law, and our values as a nation require that we do more to improve public safety in tribal communities.

The act itself only increases a possible sentence, for any crime in Indian Country including murder, from 1 year to 3 years. However, it does, finally, allow Indian courts to question and investigate crimes by white people on reservations. Not necessarily prosecute them or charge them or sentence them commensurately, but at least investigate them.

This is justice in Indian Country. This is the improvement the President touts. Meanwhile, there are no Indian judges off the reservation. This should not surprise us particularly, there have only been two Indian U.S. Senator in our history and 3 congressmen. No states have ever elected a Native American as governor.

An Indian, from India, in Louisiana, but no Native American. Arvo Mikkanek joins a long list of Native Americans whose qualifications for public service could not overcome their inherent disqualification of being Indian. Members of both parties will continue to make great public statements and act as if justice, health and representation for Native Americans are a priority. They will also continue to fail to enact any policy of inclusion or solution to the problems in Indian Country. Until one Senator or one White House official rises to defend the defamation of Mikkanen’s character, we can assume it is business as usual. White people take what they want, offer trinkets and solemn never kept promises while pursuing an uninterrupted program of annihilation of Native Americans through any means necessary.


  1. Blaque Swan

    Just to emphasize Ms. Valentine’s point, it’s the US govt who’s committing crime in the Native American justice system. It’s not as though Native men don’t care about rape. It’s the US that’s, well, raping Indian Country.

    It’s sad that there’s been only 1 Native American judge in 224 years. Clearly, that’s not working out (to borrow from Dr. Phil). However, I’m not surprised there’s been only 1; I’m surprised there’s been even one!

    What’s happening to Mikkanen is inane. No question. The White House should step up. No question. But to defend the White House at least a tidbit, the Obama administration has let a lot of nominees hang in the balance. So I doubt their lack of support has to do with Mikkaken’s ethnicity. It probably has more to do with Obama’s ethnicity in that, as an African American male, any flexing will be deemed dangerous. (You know, the way cops always confuse a [fill in the blank] for a gun when a black man has it.) Not that I don’t understand how it looks, especially after your (Ms. Valentine) spending a month on various Indian reservations. I understand why it looks that way, but when it comes to issues of race in general, the White House hasn’t been (out)spoken.

    And still, a large proportion of white America believes Obama is racist against whites. If he actually publicly supported Mikkaken, Inhofe (R-OK), among others, would probably accuse him of trying to exact reparations for Native Americans too!


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