Enlightening John Stossel

Congress, American presidents, the United States Supreme Court, and the States have all, in many varied ways, given recognition to Native American tribes as sovereign entities. Sovereign tribal authority is inherent to Indian tribes and pre-dates any other form of law in this country. It is recognized in enduring Constitutional principles, and the Supreme Court has explicitly confirmed that the United States Constitution acknowledges the status of tribes as nations. Due to their sovereign, national status, tribes are political entities; they are not racial groups. This critical and unique distinction between tribes and other groups of people, such as African Americans, is a crucial factor that Mr. Stossel, and unfortunately most Americans, is missing.

Stossel’s commentary is ignorant of a key principle: Indian tribes have a special relationship with the federal government, unique to any other group of people. This special relationship exists due to the nature of the two assemblies being separate sovereigns, but with tribal sovereignty existing under the umbrella of federal sovereignty. This apparent hierarchy exists because in 1831 (Cherokee Nation v Georgia) the Supreme Court declared Indian Nations to be “domestic dependent nations,” with a relationship to the United States like that of a ward to a guardian. Due to their nation status, the federal government and the states have been entering into legally enforceable contracts (called treaties) with tribes for centuries. These agreements have been and are still made with the understanding that tribes are separate political bodies. The American government has never acknowledged any other groups’ political power, sovereignty, or national presence within the United States.

While illustrative of tribal sovereignty and the federal trust responsibility, treaties have not always been positive agreements for American Indians. The loss of countless Indian lives, the unilateral taking of millions of acres of land, the willful degradation and attempted eradication of Indian cultures, and the stripping and taking of tribal natural resources were all actions taken by the U.S government to satisfy its greed. Nonetheless, these sacrifices were made in exchange for “considerations” that the tribes were to receive from the federal government, including federal oversight, assistance, and protection. While many of the treaties were drafted over two hundred years ago, the United States is still bound by its word, and as a result, the enforceability of treaties remains sound.

The primary instrument for carrying out the federal trust responsibility has been the Bureau of Indian Affairs, located for the past one hundred fifty years within the Department of the Interior. The Bureau has evolved into a complex bureaucracy of many thousands of employees, which includes twelve Area Offices and eighty-odd Agencies located on reservation lands. The most substantial activities of the Bureau today are education and the management of tribal resources. The BIA’s initial paternalistic role is fading, and today the emphasis of federal policy is upon encouraging tribal self-determination—many of the Bureau’s management functions have been contracted to the tribes under the Indian Self-Determination and Education Assistance Act of 1975.

Stossel boldly, yet with tragic ignorance, argues for the Bureau’s abolition with no regard for the consequences. Many, like Stossel, may contemplate why the BIA still exists if tribal self-determination is the goal. The answer is that the Bureau still exists because it was bargained for by the tribes. Countless treaties, executive orders, and agreements between tribes and the United States provided that the federal government would indefinitely be bound to a federal trust responsibility, which includes the administration of a number of programs for tribes. The BIA is seen as the embodiment of the federal trust responsibility. And while tribes may face difficulties with tribal autonomy and self-determination due to the existence of the Bureau, the suggestion of abolition inevitably encounters opposition from the tribes.

Tribes have structured their reservations, laws, and governments to account for the federal government oversight to which they acquiesced and the assistance for which they bargained. If the federal government simply abolished the BIA, as Stossel advocates, the federal government would breach one of its oldest and greatest responsibilities. An attempt to end the BIA is perceived as an attempt to do away with the trust relationship itself—in other words, to “terminate” (or “genocide”). Of course, termination has already been attempted in the history of federal-tribal relations. The experience of the tribes whose relationship with the federal government was terminated in the 1950’s was sufficiently dismal that any hint of the policy’s revival triggers instant opposition. Tribes would once again suffer greatly, and not because they are unable to survive without federal government assistance, but because they have rightfully relied on a partnership with the federal government for many years. With this partnership, tribes have chartered countless successful businesses, creating whole Indian economies, some of which have expanded into international markets. So while some tribes still need federal assistance and some do not, all are legally entitled to it.

Before John Stossel makes another bold statement regarding what he thinks about the BIA, he may want to first reference and understand centuries of American Indian history and law.

Lisa Shellenberger, a member of the Choctaw Nation, will graduate from the University of Colorado in May. She works at the law firm of Smith, Shelton & Ragona in the greater Denver area specializing in Federal Indian Law, and was chosen to serve as a judicial fellow to Justice Nancy E. Rice at the Colorado Supreme Court.