Turtle Talk

From Lloyd Miller, partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP:

In only two months President Obama has already begun to make his mark in forging a new era in Native American affairs.  After eight years marked mostly by neglect, this is welcome news, for Tribal leaders have been yearning for the profound change that can only come from a committed White House — change that calls upon the Nation not only to remember its forgotten First Americans, but to craft a new deal that embraces tribal governments as true partners in the Nation’s family of governments.  Under President Obama, all indications are that this new deal will include promoting genuine tribal self-determination, honoring the unique place Indian Tribes occupy under the Constitution, and honoring fully the trust responsibility born of treaties and the Nation’s tragic early history with Indian Tribes.

Most Americans are only dimly aware of today’s tribal governments, and for many that knowledge is limited to casinos.  Few know that less than one-half of America’s 562 Tribes actually operate gaming facilities of any kind (nearly half of them in California).  Few know that, of those that do, the well-known top 10% account for over 50% of total tribal gambling revenues, while roughly half the Tribes account for less than 10%.  The fact is, across Native America gambling is commonly little more than a breakeven proposition, providing local employment and moderately enhanced health, educational and public services.

Still, popular interest in Indian gambling has eclipsed the real picture of Native America, which remains largely out of the public eye: communities living in third world conditions without basic running water or sanitation and suffering disproportionately high rates of communicable diseases; reservations and villages with little physical infrastructure; child suicide rates 2.5 times the national average (and for teens in some regions, 17 times the national average); overwhelmed law enforcement and justice systems funded at 40% the national average, with half of all offenders on the street due to dangerously overcrowded facilities; and crumbling schools with over $800 million in deferred maintenance, producing children who score lower in reading, math and history than every other ethnic group in America.

Although in many places conditions are improving, for too many in too many places America has gravely neglected its First Americans.

This state of affairs is no accident.  It is in major part the product of successive federal policies of killing, moving and isolating the Tribes, destroying their traditional means of social control, and eliminating all means of self-support and governance.  It is also the product of the government’s seizure of hundreds of millions of acres of Indian lands to make way for America’s settlement.  And it is a product of the government’s continuing neglect of its responsibility, borne out of that terrible treatment, to provide for the Tribes’ most basic needs.  Consider that government funding of Indian health care is barely one-half the amount the government spends to care for federal prisoners, and 38% of the Nation’s per capita health care spending.

Particularly in the area of law enforcement and justice systems, this state of affairs is also the product of legal rules created out of whole cloth — rules which often reflect little more than the varying beliefs at any particular time of at least five Supreme Court justices.  With Congress and the President largely abdicating any role, the Court’s decisions here have been no less an activist reflection of personal values than, last year’s infamous decision to limit punitive damages for oil spill disasters in the face of an equally deafening congressional silence.

The good news is that this shameful and incoherent state of affairs can change.

A large number of tribal governments have for 30 years been on a resurgence, using the opportunities Congress and President Nixon first made available under the Indian Self-Determination Act to seize back control of vast areas of governmental operations.  On many reservations Tribes now successfully operate their own health care systems through a network of clinics and private practitioners, providing far more services than the government ever could.  They provide local policing and responsible fish and game management.  They manage vast areas of land, timber and minerals.  They run schools.  They build and maintain roads.  They issue bonds and attract local economic development.  Using just the Self-Determination Act, tribal governments have added well over 35,000 jobs in their communities by transferring $2.2 billion in federal operations to tribal control.  These developed tribal governments are the infrastructure upon which Congress and the President can now build to produce more vibrant Tribal communities.

To do so requires five major elements.  First, the President and Congress must recognize that promoting strong and effective self-governing Tribes in many instances requires the federal government to simply get out of the way, while honoring its legal obligations.  Though easier said than done, a strong hand must be taken to cabin the tendency of many federal agencies, most notoriously the Bureau of Indian Affairs, to micro-manage tribal institutions.  The BIA should support Tribal self-governance, not fight it.  An early test of the President’s new direction will be how efficiently the Bureau awards economic recovery contracts to Tribes and Native American owned concerns.  So, too, the President’s commitment to tribal self-determination will be tested by his tolerance for a regime where Tribal governments are still treated as second-class contractors, even after a Supreme Court decision four years ago held otherwise.

Second, the President should create a White House Office of Native American Affairs to coordinate and direct the existing alphabet soup of agencies involved in tribal life, and to provide leadership for a coordinated new policy agenda for Native America.  No less than when dealing with energy, the environment, the economy or urban affairs, active leadership, coordination and oversight at the top is critical to assuring the proper and efficient administration of all resources across the government supporting tribal communities.  The President’s commitment to create a senior advisor on Native American affairs, and his recent appointment of a Native American advisor in the Office of Intergovernmental Affairs, are important first steps in this direction.

Third, the President and Congress must take back control over the law governing Native American Tribes.  In the criminal arena, tribal governments must return to being the first responders in addressing violent crime in their communities, regardless of the tribal affiliation of the perpetrator or victim, particularly where (as in domestic violence) Native women are so often the victims of brutal attacks by non-Native men.  Eighteenth century laws that deny tribal citizens the right to be tried near their communities by a jury of their peers must be revisited.  And financial and technical support must be provided to facilitate tribal, state and federal intergovernmental agreements to close existing gaps in law enforcement, not only as contemplated in the proposed Tribal Law and Order Act, but also to address areas like village Alaska where the absence of tribal law enforcement means no law enforcement at all.  In the civil arena, the law governing tribal jurisdiction must be refashioned so it depends less on land titles and more on common sense.

In both arenas, the controlling principle should be that the most effective and accountable government is the government closest to the people, a principle that for too long has fallen victim to an institutional prejudice against tribal institutions.  The key here is for the Congress to use its constitutional muscle to displace ad hoc court decisions that have created a nearly impenetrable jurisdictional maze in Indian country.

Fourth, the President and Congress must make a fresh commitment to bringing all Tribal communities into the 21st Century, beginning with a $50 billion increase to build water supply systems and waste disposal facilities, rebuild and staff schools and clinics, construct and maintain a modern infrastructure of roads, power and connectivity, build detention facilities and support justice systems, construct irrigation projects, and provide health care commensurate with the government’s trust responsibility.  This commitment, a small part of which was addressed in the recently passed American Recovery and Reinvestment Act, must also include a combination of enhanced tax exemptions and credits and expanded bonding authority to foster local economic development (aspects of which also received important attention in the Recovery Act).  In complementary fashion, both legal and practical barriers must be removed that currently impair the ability of Tribes to administer reasonable tax regimes to fund such essential governmental services as police and fire protection, road maintenance and environmental regulation.

Finally, Congress must reconceive the federal government’s “trust responsibility” toward Indian Tribes, and the President must commit to honoring that responsibility in the context of the 21st Century.  In the 1830s Chief Justice John Marshall considered the Tribes mere “wards” of the Great White Father, with Indian people “incompetent” to manage their own affairs.  But today Tribes have demonstrated their strength and independent voice, and they properly enjoy a multilateral government-to-government relationship with other governments.  Although these changes ought to have altered the way in which trust services are administered, an increasingly byzantine and self-perpetuating BIA bureaucracy, focused on asset management and conceived in reaction to litigation, has erected new barriers to increased tribal self-determination.  In these respects, too, the BIA must be reformed.  At the same time, where the government does carry out trust or statutory responsibilities, Congress must remove the technical barriers that continue to block the courts from holding the government accountable, not only under traditional trust principles but for equally damaging statutory violations.  After all, statutory and trust rights without any remedies are no rights at all.

A New Deal for Native America will permit the Nation’s Tribes to reclaim their rightful place as the primary protectors of the tribal community, the primary providers of essential governmental services, and effective guarantors of the rule of law.  That outcome is both morally right and the only practical alternative for bringing Native America into the 21st Century as a vibrant and no longer forgotten part of our great Nation.

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Lloyd Miller has worked with Native American Tribes for 30 years.  He is a partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP.