# Native American Reservation bans Fred Phelps Protesters **URL:** \ **Category:** In My Humble Opinion\ **Created:** [December 2, 2006, 4:27pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591 "2006-12-02T16:27:34Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Auntbeast](https://avatars.discourse-cdn.com/v4/letter/a/5f9b8f/32.png) [@Auntbeast](https://boards.straightdope.com/u/Auntbeast)\ **Post date:** [December 3, 2006, 3:29pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/21 "2006-12-03T15:29:23Z")
[QUOTE=if6was9] See? This is exactly what the Westboro Fag Church wants. People like me, who DESPISE them, yet still defending (lamely) their right to do it. The Three Tribes fell right into their trap. They passed an unconstitutional, Bush-like resolution to ban all opposition! That same resolution could be used to arrest someone who is against gambling, or thinks the Chief is bad, or thinks no one from the tribe should fight in Iraq. This is the slippery slope… [/QUOTE] I’m with ya. I’ll defend to the death our right to free speech, but geez, these people are flat out freaks, hate-mongers and well, mean. And mean people suck. Auntbeast Who thinks a constitutional amendment preventing people from being dicks, providing for advanced traffic merging education and littering punishable by death might not be such a bad idea. ---
**Author:** ![Kal](https://avatars.discourse-cdn.com/v4/letter/k/9de053/32.png) [@Kal](https://boards.straightdope.com/u/Kal)\ **Post date:** [December 3, 2006, 3:46pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/22 "2006-12-03T15:46:46Z")
[QUOTE=ivylass] Is this similar to me holding a wake inside my home and keeping the Phelpses out of my living room, but allowing them to do what they want on the sidewalk? [/QUOTE] You First Amendment violator! That’s pretty much the analogy I’d use, actually. Bit of Googling shows that just shy of 50% of the land the reservation occupies is Indian-owned - I assume the remainder being owned by the Federal government. That makes the analogy problematic, but I’m not convinced that the portion which is Federal land would count as being public property. And I still say that it’s impossible for the tribe to violate the First Amendment. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [December 3, 2006, 3:59pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/23 "2006-12-03T15:59:49Z")
**Zabali** , tribal self-government and sovereignty does not mean that Indian tribes are separate nations or do not have to follow federal laws. After all, the link you provided shows plenty of instances where Congress enacts laws pertaining to reservations. If these were sovereign, as you seem to think, where does Congress get the authority to deal with them? Tribes are part of the U.S. and the First Amendment applies to them. As long as the Phelps folks are staying on public property (sidewalks, roads, etc.), then they are protected by the First Amendment. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 3, 2006, 4:17pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/24 "2006-12-03T16:17:19Z")
OK, as simply as possible: The Indian Nations, as regards their recognized reservations, are sovereign entities which have entered into agreements with the United States under which U.S. law is applicable in some contexts on those reservations. Granted that the U.S. can certainly say by _force majeure_ what will and will not be permitted, the recognition of Indian sovereignty is a part of our legal structure. The analogy to state governments is very apposite – there are things which states may not do legally as constituent parts of the United States, but there are many things in which they retain full sovereignty. For California to ban the smoking of tobacco products, for example, would likely be completely within its reserved police powers – and there is not a thing Congress could say about it, short of passing a constitutional amendment for state ratification. There’s a careful and delicate line trod by Federal, state, and tribal governments on who may do what where. Certainly a small reservation in upstate New York would much prefer an arrangement where the New York State Police may arrest a man who committed a crime off the reservation and then took refuge there, over attempting to maintain a police force adequate to subduing and arresting him. But they are not equivalent to city or town governments as suggested by **if6was9** – they retain the sovereignty they had as sovereign nations back in frontier days, **subject** to what they have yielded up to the U.S. to achieve recognition as constituent elements of the U.S., and any agreements they may have with the states within which they lie geographically. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [December 4, 2006, 7:05am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/25 "2006-12-04T07:05:12Z")
> [@](#): > > **Renob** : **Zabali** , tribal self-government and sovereignty does not mean that Indian tribes are separate nations or do not have to follow federal laws. That would mean that _Roe v Wade_ would apply on the Pine Ridge Reservation? I could be mistaken, but I don’t think abortions are allowed even to preserve the life of the mother. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [December 4, 2006, 2:22pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/26 "2006-12-04T14:22:05Z")
[QUOTE=Zoe] That would mean that _Roe v Wade_ would apply on the Pine Ridge Reservation? I could be mistaken, but I don’t think abortions are allowed even to preserve the life of the mother. [/QUOTE] Cite, please. Everything I have seen says that Pine Ridge was considering opening an abortion clinic if the South Dakota ban on abortion was passed. Indian Tribes cannot ban abortion with any more legality than a state. ---
**Author:** ![Ignatz](https://avatars.discourse-cdn.com/v4/letter/i/3be4f8/32.png) [@Ignatz](https://boards.straightdope.com/u/Ignatz)\ **Post date:** [December 4, 2006, 11:40pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/27 "2006-12-04T23:40:39Z")
In July North Carolina passed a law prohibiting such disruptions within 300 feet of funerals. It went into effect on December 1. Link to a newspaper article from the home of USMC’s Camp LeJeune. [http://www.jdnews.com/SiteProcessor.cfm?Template=/GlobalTemplates/Details.cfm&StoryID=43639&Section=News](http://www.jdnews.com/SiteProcessor.cfm?Template=/GlobalTemplates/Details.cfm&StoryID=43639&Section=News) ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [December 5, 2006, 1:49am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/28 "2006-12-05T01:49:55Z")
[QUOTE=Renob] Cite, please. Everything I have seen says that Pine Ridge was considering opening an abortion clinic if the South Dakota ban on abortion was passed. Indian Tribes cannot ban abortion with any more legality than a state. [/QUOTE] And yet, they have the power to tell a state law to take a flying leap by opening an abortion clinic in a state where abortion is banned? (Which is what you just said they were considering doing.) Some tribes can smoke peyote on their lands too, yet there is a Federal law saying the rest of us cannot smoke peyote if we do not belong to the tribes that can do so. I didn’t say they had limitless power, but I did point out that they _retained_ many powers even though subject to Federal laws. Federal laws do not say you must let hate spewing hostile people onto your private property either. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [December 5, 2006, 2:01am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/29 "2006-12-05T02:01:45Z")
[QUOTE=Zabali\_Clawbane] And yet, they have the power to tell a state law to take a flying leap by opening an abortion clinic in a state where abortion is banned? (Which is what you just said they were considering doing.) [/quote] Depending on the treaty, many tribes do not follow a variety of state laws. Of course, that’s not the issue here, because the First Amendment is in the federal consitution. > [@](#): > > Some tribes can smoke peyote on their lands too, yet there is a Federal law saying the rest of us cannot smoke peyote if we do not belong to the tribes that can do so. Actually, the reason they can do so is a federal law that allows peyote to be smoked if it is part of a religion’s rites. Some Indian religions involve smoking peyote. (Or was it a court case that allowed this? Either way, it is due to religion, not tribal status). > [@](#): > > I didn’t say they had limitless power, but I did point out that they _retained_ many powers even though subject to Federal laws. No, you said they were basically foreign nations where federal laws did not apply. > [@](#): > > Federal laws do not say you must let hate spewing hostile people onto your private property either. No, but the First Amendment does say that you must let hate spewing people onto public property, and that is what the Tribe was banning. Roads and sidewalks are public property, and no government can ban speech on them simply because they do not like the content of that speech. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [December 5, 2006, 2:02am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/30 "2006-12-05T02:02:28Z")
[QUOTE=Zabali\_Clawbane] And yet, they have the power to tell a state law to take a flying leap by opening an abortion clinic in a state where abortion is banned? (Which is what you just said they were considering doing.) Some tribes can smoke peyote on their lands too, yet there is a Federal law saying the rest of us cannot smoke peyote if we do not belong to the tribes that can do so. I didn’t say they had limitless power, but I did point out that they _retained_ many powers even though subject to Federal laws. Federal laws do not say you must let hate spewing hostile people onto your private property either. [/QUOTE] **Zabali** , would you please post a CITE already? ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [December 5, 2006, 2:05am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/31 "2006-12-05T02:05:25Z")
[QUOTE=Guinastasia] **Zabali** , would you please post a CITE already? [/QUOTE] **Ivylass** is the one to ask for a cite in this case, reread what I just said. I said “ **Which is what you just said they were considering doing**.” to **Renob** who was talking to **Ivylass**. I **did** post cites as well, in other posts. Read what **Polycarp** said too, his explanation is more succinct and better put together **Guin**. ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [December 5, 2006, 2:08am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/32 "2006-12-05T02:08:10Z")
[QUOTE=Renob] No, but the First Amendment does say that you must let hate spewing people onto **public property** , and that is what the Tribe was banning. Roads and sidewalks are public property, and no government can ban speech on them simply because they do not like the content of that speech. [/QUOTE] Um, dude! The protesters _ARE_ going to be on public property. This whole issue is about the Tribe not letting them onto their **PRIVATE** property! :dubious: You really think that just anyone can go onto the reservation?! They have the absolute right to tell Joe Blow off the street who is not a Tribal member to take a hike and not come back. Even Tribes with casinos can do this. ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [December 5, 2006, 2:11am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/33 "2006-12-05T02:11:55Z")
I will add, pre-emptively that some Tribes are more laid back than others, who are rather like gated communities, with screening of who comes and goes. Tribal land is not public propertyin any case. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [December 5, 2006, 2:22am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/34 "2006-12-05T02:22:38Z")
[QUOTE=Zabali\_Clawbane] Um, dude! The protesters _ARE_ going to be on public property. This whole issue is about the Tribe not letting them onto their **PRIVATE** property! :dubious: [/quote] Roads and sidewalks are not private property. > [@](#): > > You really think that just anyone can go onto the reservation?! They have the absolute right to tell Joe Blow off the street who is not a Tribal member to take a hike and not come back. Even Tribes with casinos can do this. Really? I need a cite on this one. I believe roads passing through reservations are public right-of-ways. ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [December 5, 2006, 2:32am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/35 "2006-12-05T02:32:33Z")
[QUOTE=Renob] Roads and sidewalks are not private property. Really? I need a cite on this one. I believe roads passing through reservations are public right-of-ways. [/QUOTE] Here is a decent start for you, from the CNN article in the OP. > [@](#): > > Shirley Phelps-Roper, daughter of the Rev. Fred Phelps Sr., pastor of Westboro Baptist, said **her group planned to protest outside the reservation “on public rights of way.”** > > \*\*“We don’t get into anyone’s private area,” \*\* said Phelps-Roper, the church’s attorney and its spokeswoman. **“We don’t go on private land.”** I will note that Shirley Phelps-Roper is a lawyer, so would be have more than a layman’s understanding of things. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [December 5, 2006, 3:05am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/36 "2006-12-05T03:05:00Z")
[QUOTE=Renob] **Zabali** If these were sovereign, as you seem to think, where does Congress get the authority to deal with them? [/QUOTE] Congress has the power to make laws concerning Native American Tribes through its interstate commerce clause which gives it the power to “To regulate Commerce with foreign Nations, and among the several States, and with the **Indian Tribes.** ” A law usually does not apply to Native Americans unless it mentions them. From [here:](http://usinfo.state.gov/eur/Archive/2005/Jan/28-691277.html) > [@](#): > > Tribes possess the right to form their own government; to enforce laws, both civil and criminal; to tax; to establish membership; to license and regulate activities; to zone; and to exclude persons from tribal territories. > > Limitations on tribal powers of self-government are few and include the same limitations applicable to states; for example, neither tribes nor states have the power to make war, engage in foreign relations, or coin money. [QUOTE=Renob] Tribes are part of the U.S. and the First Amendment applies to them. As long as the Phelps folks are staying on public property (sidewalks, roads, etc.), then they are protected by the First Amendment. [/QUOTE] Now how can the First Amendment apply to Indian tribes? It was only applied to the states when Congress passed the 14th amendment. Never do any of our amendments talk about Indian tribes being subject to the restrictions of our Bill of Rights. I’m no expert though, so I might be wrong. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [December 5, 2006, 4:22am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/37 "2006-12-05T04:22:30Z")
[QUOTE=Lakai] Congress has the power to make laws concerning Native American Tribes through its interstate commerce clause which gives it the power to “To regulate Commerce with foreign Nations, and among the several States, and with the **Indian Tribes.** ” [/quote] No, the feds also get their power from a variety of treaties, court cases, and other things, as described in the link you mentioned. > [@](#): > > Now how can the First Amendment apply to Indian tribes? It was only applied to the states when Congress passed the 14th amendment. Never do any of our amendments talk about Indian tribes being subject to the restrictions of our Bill of Rights. From the link provided by **Zabali** above, describing laws passed by Congress governing tribes: > [@](#): > > The Indian Civil Rights Act of 1968, which applied most of the Bill of Rights’ requirements and guarantees to Indian tribal governments; **Zabali** , I understand what the Phelps folks are doing. My quibble with you is not about that. It’s about your notion that Indian tribes are sovereign governments that are separate nations that can do whatever they want. They, in fact, are not. Tribal governments possess a lot of power, but they are not superior to the federal government. ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [December 5, 2006, 4:33am UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/38 "2006-12-05T04:33:21Z")
[QUOTE=Renob] \ **Zabali** , I understand what the Phelps folks are doing. My quibble with you is not about that. It’s about your notion that Indian tribes are sovereign governments that are separate nations that can do whatever they want. They, in fact, are not. Tribal governments possess a lot of power, but they are not superior to the federal government. [/QUOTE] You are zooming in on a small part of my text and repeating it as a mantra. Did you tune out and not read the rest of what has been said in this thread? I even admitted that **Polycarp** was more succinct and better phrased with his explanation… :dubious: ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [December 5, 2006, 1:51pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/39 "2006-12-05T13:51:48Z")
[QUOTE=Zabali\_Clawbane] You are zooming in on a small part of my text and repeating it as a mantra. Did you tune out and not read the rest of what has been said in this thread? I even admitted that **Polycarp** was more succinct and better phrased with his explanation… :dubious: [/QUOTE] Of course I’ve read what was said in this thread. Most flatly refutes your earlier post that Indian tribes are sovereign nations on par with foreign governments. **Polycarp’s** post explains this. So do you now admit that your characterization that Indian tribes can do whatever they want within their borders is wrong? ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [December 5, 2006, 8:59pm UTC](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591/40 "2006-12-05T20:59:45Z")
Actually, I wrote the [Three Affiliated Tribes](http://www.mhanation.com/main/main.html) to ask them to help better explain what I meant. Here is their reply in it’s entirety: [[QUOTE=mhanation.com](http://QUOTE=mhanation.com)] Thanks Zab for your interest. The resolution to amend a part of our Criminal Code of the Three Affiliated Tribes of the Fort Berthold Reservation was based on a Kansas statute and Colorado statue which allows for the right to exclude, regardless of free speech. (I am not sure of the dates, you might be able to look them up on the Web.) Regarding the concept of Tribal Sovereignty: The Three Affiliated Tribes, also known as the Mandan, Hidatsa, Arikara Nation became their own sovereign Tribal Governing Body which became recognized by the United States when they accepted the Indian Reorganization Act of June 18, 1934 and the authority under said Act and adopted a Consitution and By-laws pursuant to said Act. Article III of the Constitution of the Three Affiliated Tribes provides that the Tribal Business Council is the governing body of the Tribes. It was the Tribal Business Council of the Three Affiliated Tribes on Dec. 1, 2006, which amended Title II, Part VI of the Criminal Code of the Three Affiliated Tribes of the Fort Berthold Reservation by adding “Article 3” to “Part VI” of the “Criminal Code” entitled “Offenses Against Public Decency:” Article 3. Funeral Picketing; Penalty; other Relief. June 18, 1934, Indian Reorganization Act Chapter 576 - An Act To conserve and develop Indian lands and resources; to extend to Indians the right to form business and other organizations; to establish a credit system for Indians; to grant certain rights of home rule to Indians; to provide for vocational education for Indians; and for other purposes [/QUOTE] [Previous page](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591.md?page=1) [Next page](https://boards.straightdope.com/t/native-american-reservation-bans-fred-phelps-protesters/382591.md?page=3)