By David Wilkins

July 18, 2012

Native American people and the distinctive nations they belong to exist in a paradoxical world. They are the original nations of North America, a fact that is enshrined in the U.S. Constitution’s Commerce Clause and in the nearly 400 ratified treaties between their nations and the U.S.

Yet since very early on in this nation-to-nation relationship, the United States has frequently diminished the ability of Native nations to act as political and legal sovereigns. Profound loss of land (nearly 98 percent of Native landholdings are now in non-Native hands) devastated the ability of native peoples to support themselves. And congressional and administrative constraints on the use of their remaining resources further diminish their capacity to act as political sovereigns. While over time Native nations have adapted to land loss and worked to renegotiate resource regulations, in the 1950s and 1960s a number of Native communities also confronted the reality that their actual political and legal existence could be terminated by Congressional fiat.

The paradoxical state of Native America was dramatically reaffirmed on June 18, 2012 when the Supreme Court handed down two decisions that will have lasting effects on Native nations. On a positive note, the Court ruled 5 to 4 in Salazar v. Ramah Navajo Chapter that the federal government was required to pay contract support costs to tribal nations, like the Navajo Nation, that enter into formal agreements to manage federal programs. This decision, which may make tribal governments eligible for more than $1 billion, literally means that Native communities must receive all the money that the federal government has promised to them, even if it doesn’t immediately have enough money to pay all of the contractors.

On a negative note, the High Court held in an 8 to 1 decision, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, that the Interior Department could be sued for having approved an application by the Pottawatomi, also known as the Gun Lake Tribe, to have a tract of land acquired “for gaming purposes” placed under federal trust status. David Patchak, a non-Indian, had filed the lawsuit claiming that the Secretary of the Interior lacked authority to take title to the land in question and because the tribe’s casino would increase crime and cause economic, environmental, and aesthetic harm.

Justice Sotomayor, the lone dissenter, said the ruling will lead to many lawsuits and allows any individual to “sue under the Administrative Procedure Act to divest the Federal Government of title to and possession of land held in trust for Indian tribes….”

What is the basis for these seemingly contradictory opinions? And why is it that even those Native nations with impressive gaming revenues or those with significant natural resource endowments of coal, natural gas, timber, and oil still lag far behind the rest of society in virtually every socio-economic category? Why do American Indians suffer higher rates of poverty, domestic violence, suicide, poor educational attainment, and substandard housing? Why do they exhibit proportionately higher numbers of diseases such as diabetes, tuberculosis, and that devastating scourge, alcoholism?

Many of the problems that continue to bedevil Native nations were previously illuminated by Supreme Court Justice Clarence Thomas’s opinion in U.S. v. Lara (2004) involving the application of the Double Jeopardy Clause and the issue of whether Congress had authority to restore to tribal nations criminal authority over all Indians within their borders. The usually silent Thomas remarked in his written decision that “federal Indian policy is, to say the least, schizophrenic.” He went on to prove the point by asserting that tribal nations “are not part of this [U.S.] constitutional order, and their sovereignty is not guaranteed by it.”

These two paradoxical statements powerfully reveal a harsh reality for Native peoples: since the founding of the American republic, a combination of legal doctrines, myths and stereotypes, and congressional presumptions place Native Americans—despite their treaties and their late-secured American citizenship—in a fundamentally tenuous position vis-à-vis the U.S. government. While legal doctrines and stereotypes are important, let us focus on Congress’ presumptions since they continue to jeopardize the security of Native nations.

Native philosopher Vine Deloria, Jr. wrote about several of what he termed the “controlling assumptions” that drive Congress’ vexed relationship with indigenous peoples. First, Congress (and by extension the President and the Courts) is generally presumed always to act in “good faith” toward and in the “best interests” of Native peoples. This notion of good faith dates back to the 1787 Northwest Ordinance by which, on the one hand, the federal government laid out its policy for organizing and governing the national domain west of the Appalachians–but also pledged that “the utmost good faith shall always be observed towards the Indians….” This important ordinance enshrined a schizophrenic federal land policy—inevitable western expansion into Indian Country while presumably exercising respect for Native land rights.

But Native nations quickly learned that when federal interests conflict with Native interests, what the federal government desires trumps what Native peoples desire. This was true in 1787, and it remains true, as evidenced as recently as in the 2011 Supreme Court case, United States v. Jicarilla Apache Nation. In that case, the Jicarilla had sued the department of the interior, their trustee, claiming that the department had withheld vital documents relating to the manner in which the agency had managed the tribe’s trust funds. In a 7 to 1 ruling, the justices declared that the government had consistently structured the trust relationship to pursue its own policy goals—and even when it was acting formally as the tribe’s trustee, there was no actionable contradiction in “asserting its own self-interest” in dealing with Indian lands.

A second “controlling assumption” has been the presumption that the solution to indigenous problems is only a matter of a simple adjustment of pre-existing programs and policies. Rarely do change agents investigate the ideological or structural underpinnings of federal programs, laws, doctrines—believing instead that the basic federal structure and legal arrangements are sound and that all that is needed is a minor tweaking of the system or its component parts. This is evident in the recent $3.4 billion Cobell congressional settlement. Despite reams of evidence and several court opinions that the Bureau of Indian Affairs and the Department of Interior had mismanaged Indian trust account funds for well over a century, the Bureau, the major culprit in the mismanagement, was entrusted by Congress with the authority to use $1.9 billion of the settlement package to devise a land consolidation plan to address the problems that the Bureau itself had spawned and perpetuated.

A third of these destructive assumptions is the long-held presumption that Native lands, resources, and rights are little more than social laboratories which may be legitimately used to test various theories of social, political, and even scientific engineering. This deliberate engineering is grossly evident in policies like Indian Removal, land allotment, boarding schools, the culturally destructive “civilization” campaign of the late 1800s and early 1900s, the Indian Reorganization Act of the 1930s, tribal termination in the 1950s and 1960s, and non-renewable energy extraction within Native-held land from the 1970s to the present. Most recently, energy exploitation is particularly problematic, as the Navajo and Hopi nations have learned in their battles with federal agencies and corporations over uranium and coal development. Alaskan Natives are also facing similar assaults on their territories, especially on the North Slope, in regard to oil extraction.

Fourth, there is the widely held presumption, too frequently shared by members of relevant Congressional committees, that reservations and other tribal trust lands and the governing bodies of those lands are temporary entities, mere nuisances that are inevitably slated to fade away—or be made to fade away—at the will and time tables of federal or state governments. Evidence of this abounds. For instance, Native governments have often struggled when they have attempted to institute taxation programs to generate much needed revenue. The Navajo Nation, one of the most sophisticated models of indigenous financial leadership, was, in 2001, denied the right to extend their taxing authority over a hotel operating within the boundaries of tribal lands. This superseding opinion struck at the heart of the tribe’s efforts to raise desperately needed money for its growing population.

More recently, in 2009 the Supreme Court held in Carcieri v. Salazar that the Narragansett people of Rhode Island, a small nation that received federal recognition in 1983, was not authorized to have the Secretary of the Interior put into trust status 31 acres of recently purchased land—thus making that land subject to state taxation. The Court’s major and largely arbitrary rationale for this decision was that only Native nations who had been recognized “on or before 1934”—the date of the Indian Reorganization Act’s enactment—were eligible to have lands placed into trust. Nations that are denied opportunities to raise much needed taxation resources and those with vulnerable lands are precariously situated. And while Native peoples need not, at least currently, fear being politically and legally “terminated” as many were in the 1950s and 1960s, that short-sighted policy remains a traumatic memory for many tribal people.

Finally, there is a presumption that since “Indian tribes” are mentioned explicitly in the Commerce Clause of the Constitution, making Indian affairs an explicit congressional responsibility, the executive and judicial branches can opt not to enforce the legal and political rights of Native groups or individuals. This deference to Congress has both historically and contemporarily left treaty rights to the mercies of both the political winds of the day and their interpretation by the judicial branch, which generally acquiesces to Congress’ will. This was evidenced most dramatically perhaps in one of the court’s landmark decisions, Cherokee Nation v. Georgia (1831), when the court turned a deaf ear to the legitimate complaints of the Cherokee Nation whose lands were being overrun by Georgia’s legislative expansionism in direct violation of the several treaties that had been negotiated between the Cherokee and the federal government.

And, in 2004, Billy Jo Lara, a Turtle Mountain Ojibwe who committed a crime on the Spirit Lake Reservation (North Dakota) was charged and tried by both the Spirit Lake government and the federal government. Lara claimed that the federal government’s legal action violated the Double Jeopardy Clause of the Constitution. But the court held that Congress, as a separate and superior sovereign, had plenary power under the Commerce Clause over both Indian affairs and Native nations and could use that authority not only to prosecute Lara but, more broadly to either restrict or relax restrictions on tribal sovereignty. In the court’s own words, the Congress can recognize—or, ominously, even deny–the existence of individual tribes. Placing such unlimited authority in the hands of the legislative branch, generally acquiesced to by the Supreme Court and the Executive branch, means that the democratic principles of checks and balances and separation of powers that are a hallmark of an effective American democracy rarely come into play in a manner that protects the fundamental rights or resources of indigenous peoples.

Such deeply embedded attitudinal issues profoundly complicate indigenous efforts to regain and exercise a measure of bona fide self-determination. After centuries of getting things wrong, until and unless we can roust these malignant and debilitating assumptions, there can still be no genuine reconciliation between Native nations and the larger state and society.

Professor David E. Wilkins holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota. His recent book publications include American Indian Politics and the American Political System, 3rd ed (co-authored with Heidi Stark) (2010), Documents of Native American Political Development: 1500s-1933 (2009), and On the Drafting of Tribal Constitutions (by Felix Cohen) (2006).

 

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