Turtle Talk

The University of North Carolina Press just published “Senator Sam Ervin, Last of the Founding Fathers,” by Karl E. Campbell (Appalachian State).

Here is a micro-review:

Sen. Ervin was the sponsor of the Indian Civil Rights Act. He was also an ardent opponent of civil rights legislation (ironically as chair of the Subcommittee on Constitutional Rights) and chair of the Senate Watergate hearings. On their face, these two positions seem contradictory, but they really are not. Nevertheless, Prof. Campbell highlights ICRA as an example of Ervin’s civil libertarian streak.

Prof. Campbell makes Sen. Ervin out to be a more complicated man and politician than merely an opponent of civil rights — he was also a “defender” of civil liberties. Yet, rather than champion civil rights legislation that could have helped implement Brown v. Board, or support Pres. Johnson’s 1967 civil rights bill, he held dozens of hearings on civil rights in Indian Country (as well as sponsoring bills protecting the rights of the mentally disabled and military personnel), while using his position as the powerful chair of the Subcommittee on Constitutional Rights to kill the bills involving the civil rights of African-Americans.

Prof. Campbell’s treatment of the Indian Civil Rights Act is cursory and slanted, though probably not intentionally. It seems clear from the details in the book that the author really knows nothing about Indian law or Indian Country. In this treatment, ICRA serves as sort of a blip along the way in Ervin’s career, a little practical joke on the liberal Democrats in Congress forced to vote in favor of the statute because, as Sen. Anderson of New Mexico asked, “How can one vote against civil rights for Indians?” (176)

But Campbell’s treatment could have been a great deal more provocative. Campbell notes that Ervin was interested in Indian affairs in part because one of his staffers was a Lumbee Indian. Consider, as some scholars have argued, that Sen. Ervin’s interest in enacting ICRA was to create an additional means for continued assimilation of Indian communities — in short, to civilize the Indians by providing them with the Bill of Rights (sort of), to make them “civilized” like he considered his Lumbee staffer. One commentator noted in 1972 in the Harvard Journal on Legislation:

Senator Ervin could politically afford to support Indian rights largely because of the extensive assimilation of North Carolina Indians into southern life. The Cherokee and Lumbee settlements had been fully integrated into the state’s governmental structure as counties and municipalities. It has been said that they represent a small, unaggressive, poorly differentiated minority in the state. This integration has been facilitated, especially in the case of the Cherokee, by the early evolution of legal institutions modeled after those of their white neighbors. Their codes, courts, sheriffs, and police forces, for example, have long been in existence.

While this fact freed Senator Ervin to investigate Indian rights without political difficulty at home, it limited his perspective. During the hearings, he revealed his inclination to try to duplicate the North Carolina assimilation experience on a national level. He demonstrated this predilection by focusing on how the systems of tribal justice outside North Carolina failed to conform to the country’s constitutional scheme.

Donald Burnett, Jr., An Historical Analysis of The 1968 ‘Indian Civil Rights’ Act, 9 Harv. J. on Legis. 575, 576 (1972).

Angela Riley more recently put it this way:

The American civil rights movement of the 1960s inspired reformers to transform tribal governments. Senator Sam Ervin of North Carolina led this endeavor, introducing bills in Congress designed to extend constitutional protections to individual Indians via an Indian Bill of Rights. Ervin’s aide, a Lumbee Indian, was partially responsible for inspiring Ervin’s work on the bill. Ervin viewed the Lumbee tribe–an Indian nation that lacked a communal land base and had significantly assimilated into mainstream society– as a positive model for other tribes. When Ervin learned that the U.S. Bill of Rights did not apply to individual Indians subject to the control of tribal governments, he commented that such a notion was “alien to popular concepts of American jurisprudence.” Ervin thus sought to ensure that tribal governments offered protections to individual Indians similar to those enjoyed by citizens living under federal, state, and local governments.

Angela Riley, (Tribal) Sovereignty and Illiberalism, 95 Cal. L. Rev. 799, 809 (2007) (citing John R. Wunder, The Indian Bill of Rights, in The Indian Bill of Rights, 1968 (John R. Wunder ed., 1996); and Burnett, supra).

Campbell misses out on analyzing these contradictions. ICRA isn’t really a civil rights statute (or a civil liberties statute, either). Perhaps Ervin and his ICRA are examples of the strangeness of American racism, where African-Americans are to be politically and economically oppressed because of their savagery, while American Indians are to be civilized because of their savagery. Instead, Campbell reduces his analysis to the re-telling of two stale Indian jokes.

Campbell altogether ignores the angles that Indian law observers have long noted and glosses over the contemporary objections to the statute: the negative impact on tribal governance development and growth, the stunting of tribal courts, the stifling of tribal law — and perhaps most important, the lack of a real need for the “Indian Bill of Rights.” Campbell ignores that Ervin and his staff intentionally sought persons who had public feuds with tribal governments to testify in the years of hearings leading to the enactment of the statute. Just like the Republican-controlled Congress bringing in Michael Crichton to testify about the science of global warming, Ervin brought in people who distrusted tribal government. Moreover, there was no real evidence of a serious civil rights problem perpetrated by tribal governments in the 1960s, just a series of anecdotes, some of them definitely exaggerated.

In short, Campbell’s reliance on the Act as an example of Ervin being a civil libertarian seems fairly misplaced — in fact, if anything, his sponsorship of the Act was consistent with his anti-civil rights platform. Perhaps what motivated Ervin’s sponsorship of the Act (other than disrupting the civil rights agenda of the liberal Dems) was to eliminate or erode the exceptionalism of Indian tribes and Indian people. Ervin probably gets off light here, but the real shame is that Campbell misses out on developing the story of the Indian Civil Rights Act. Campbell’s work here doesn’t add much in that vein.