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Native and Civil Rights Hang in the Balance

AP Images / Jeff Sessions, R-Ala.is seen here during his testimony last week. Many worry about civil rights under Sessions leadership as U.S. attorney general.

Trump Chooses Sen. Jeff Sessions to Lead Justice Department

Every major civil rights group in the country stands in opposition to President-elect Donald Trump’s nomination of Sen. Jeff Sessions, R-Ala., for the office of U.S. Attorney General.

Over 200 sent a letter to the Senate urging them not to confirm Sessions. “Senator Sessions has a 30-year record of racial insensitivity, bias against immigrants, disregard for the rule of law, and hostility to the protection of civil rights that makes him unfit to serve as the Attorney General of the United States,” they said. And more than 1,400 law school professors sent the Senate a letter protesting the nomination.

Angelique EagleWoman, a member of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation, is dean and professor of law at Lakehead University. She told ICMN she shares those concerns: “Sen. Sessions has a history of anti-black statements and is seen as a KKK sympathizer.”

But she sees even more trouble ahead for tribes: “He has been very vocal about being anti-cannabis, which would likely impact those Tribal Nations interested in economic expansion by growing and/or selling marijuana. He has been on record to stop expansion of tribal gaming. Senator Sessions also wants to relax EPA standards at a time when the global community is calling for an increased response to climate change. Finally, he has been opposed to same-sex marriage at a time when Indigenous Peoples are reclaiming their traditional identities, which includes Two Spirit people.”

Richard Cohen, president of the Southern Poverty Law Center in Montgomery, Alabama, acknowledged Sessions’ help in prosecuting the Ku Klux Klan members who murdered a young black man, Michael Donald, in the 1980s, but added, “We cannot support his nomination to be the country’s next attorney general. Senator Sessions not only has been a leading opponent of sensible, comprehensive immigration reform, he has associated with anti-immigrant groups we consider to be deeply racist.”

Damnably false charges”

Sessions is adamant in defending himself against charges of racism: “I was accused in 1986 [when he was being considered for a federal judgeship] of failing to protect the voting rights of African Americans … and of condemning civil rights advocates and organizations and even harboring, amazingly, sympathies for the KKK. These are damnably false charges,” he told his colleagues during two days of hearings before the Senate Judiciary Committee January 10 and 11.

He had supporters among the witnesses testifying before the committee. U.S. Commission on Civil Rights Commissioner Peter Kirsanow said he had examined Sessions’ voting record and found no evidence of bias. Sessions staffer William Smith, an African American, said, “After 20 years of knowing Senator Sessions, I have not seen the slightest evidence of racism because it does not exist.” Former U.S. Attorney General Michael Mukasey and former Deputy Attorney General Larry Thompson expressed full confidence in Sessions’ ability to run the Justice Department fairly and to enforce the laws of the U.S.

Troy Eid, chairman of President Obama’s Indian Law & Order Commission, which produced the document, “A Roadmap For Making Native America Safer” after the Tribal Law and Order Act was passed in 2010, expressed his confidence in Sessions in an email to ICMN: “I strongly support Attorney General Sessions’ nomination. During his confirmation hearing, he demonstrated his commitment to strengthening federal prosecution to support tribal nations and respect their sovereignty.”

Voting Rights

During the hearing, Sessions and his supporters repeatedly referred to the KKK prosecution as evidence that Sessions is not a racist. They also frequently referenced to a civil rights case Sessions brought as U.S. Attorney for Southern District of Alabama. That case charged three civil rights workers with altering ballots in Perry County, Alabama. The defendants claimed they were helping poor and elderly voters cast their ballots and helping illiterate voters mark their ballots. The “Marion Three” were eventually acquitted on all charges in federal court.

Sessions testified, “The voter fraud case my office prosecuted was in response to pleas from African American incumbent elected officials who claimed that the absentee ballot process involved a situation in which ballots cast for them were stolen, altered and cast for their opponents. The prosecution sought to protect the integrity of the ballot, not to block voting. It was a voting rights case.”

Rep. Cedric Richmond, D-La., chairman of the Congressional Black Caucus, responded: “History is replete with efforts by those in power to legitimize their actions of suppression and intimidation of black voters by recruiting other blacks to assist in bringing trumped-up charges against law abiding citizens who are engaged in perfectly legitimate voter education and empowerment activities.”

That case was one factor that led the Senate Judiciary Committee—the same committee that held hearings on Sessions nomination last week—to deny Sessions a federal judgeship in 1986. But this time around, Sessions has been a member of the committee for almost 20 years and served as its ranking member in 2009 and 2010. Currently he is chairman of the committee’s Immigration and the National Interest Subcommittee.

Flip Flopping in the Best Trump Tradition

Sessions had ready answers for his critics on many of controversial statements he has made in the past. Reminded that he had called the Voting Rights Act “an intrusive piece of legislation,” he explained that the law had to be intrusive in order to effect the kinds of changes that were needed. He maintained he did not call the NAACP un-American, but said they might be perceived as un-American if they continued to support the Sandinistas in Nicaragua.

And he disowned many opinions he stated only recently.

Having supported Trump’s proposal to ban the immigration of Muslims into the U.S., Sessions, a fierce opponent of illegal immigration and critic even of legal immigration, says he now believes immigration bans should be based on territory, not religion, but religious precepts should still be taken into account. “Many people do have religious views that are inimical to the public safety of the United States,” he said. Nonetheless, he said, he would uphold the “freedom and equality this country has to provide to every citizen.”

He has also changed his mind about how he would characterize the allegations that Trump grabbed women’s genitals. He now believes such actions would constitute sexual assault, having said earlier that they would not.

Opposes Tribal Courts Trying Non-Indians

Sessions hasn’t changed his mind about every critical issue.

When called to account for his vote against the reauthorization of the Violence Against Women Act in 2013, Sessions told committee members in some detail that one of his reasons for rejecting the legislation was the inclusion of provisions that allow tribal courts to try non-Indians in certain domestic violence cases.

But he excused that action by saying that until he met with senators prior to this hearing, he had not been aware of the extent of violence against AI/AN women, or that most of it was committed by non-Indians. He did not, however, go so far as to say that this new knowledge would change his position against non-Indians being subject to tribal court jurisdiction. He also maintained that “historically and traditionally” non-Indians were not tried by tribal courts, demonstrating that his knowledge of federal Indian law is faulty.

Sen. Al Franken, D-Minn. urged Sessions to visit an Indian reservation. Sessions said he had done that: “Well, only one tribal group [in Alabama] has properties, tribal lands, the Poarch Creek. It used to be in my district. I’ve had good relations with them, been on that small tribe’s tribal lands a number of times.”

Poarch Band of Creek Indians Tribal Chair/CEO Stephanie A. Bryan, provided a statement for ICMN: “We look forward to a continued working relationship with Senator Jeff Sessions, and hope that if he is confirmed as our next U.S. Attorney General he will be a strong advocate upholding the constitutional rights of our sovereign governments.”

Police Killings

DOJ has taken on investigations of local police departments and on January 13 released a report affirming institutional problems in the Chicago Police Department that led to civil rights violations. Whether Sessions, a strong advocate for law and order who has the backing of the Fraternal Order of Police and dozens of other law enforcement organizations, would back such Justice Department investigations in the future was a concern during the hearing. According to an investigation by Stephanie Woodward, Native Americans are more likely than any other group to be killed by police.

Rep. John Lewis, D-Ga., told the committee that he worries when he hears Sessions talk about a return to law and order. If Sessions becomes the attorney general, will he bring back the kind of law and order Lewis protested in the 1960s when civil rights activists were beaten by police on the Edmund Pettus Bridge in Selma, Alabama, on “Bloody Sunday” he wondered. In 2016 Lewis and the other protesters were awarded the Congressional Gold Medal because of legislation introduced in the Senate by Sessions and Sen. Cory Booker, D-N.J.

Five months after “Bloody Sunday,” President Lyndon Johnson signed the Voting Rights Act of 1965, one of the most important pieces of civil rights legislation in the country’s history. One provision of the law was the requirement that certain states get approval (“pre-clearance”) from the Justice Department before they changed voting requirements or instituted redistricting.

In a “Post-Shelby” World

In 2013, the Supreme Court in Shelby County v. Holder, ruled that part of the Voting Rights Act was unconstitutional because it is outdated. Shelby County is in Alabama, one of the states required to get pre-clearance in voting matters.

In a “post-Shelby” world, states can change voting regulations, most importantly perhaps, voter ID laws, at will, which is what happened in North Carolina, Texas, and North Dakota.

In all three instances, courts struck down the voter suppression laws in 2016, but, Cornell Brooks, president of the NAACP, pointed out that in this landscape, the violation has to occur, and then ordinary citizens have to muster the resources to bring suit. In the meantime, elections happen.

Sen. Cory Booker broke with tradition and testified in opposition to Sessions’ confirmation—Senators rarely testify against colleagues’ nominations. The 1957 Civil Rights Act, primarily a voting rights act, he said, “made the attorney general not only the chief law enforcement officer of the United States but also vested in that office the responsibility to pursue civil rights and equal protection for all of America. Sen. Sessions has not demonstrated a commitment to a single requisite of the job.” It was the 1957 Civil Rights Act that gave American Indians a federal right to vote, meaning that states could no longer bar them from doing so.

What the Future Holds

Sessions will almost certainly be confirmed and the consequences for tribes could be profound. Indian law is federal law and Sessions will be the person deciding which federal laws are enforced and which are ignored, which civil rights violations are investigated and which are not, and who gets to vote and who does not.

Robert Odawi Porter, an attorney and former president of the Seneca Nation, puts probably the most optimistic spin possible on this eventuality. Tribes, he said, must “take this opportunity for education and advocacy to promote tribal sovereignty.”

Sen. Sessions’ office had not responded to requests for an interview at press time.

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