Here, by Nick Estes.
Here are the materials in Cayuga Nation v. Bernhardt (D.D.C.):
Donald Trump’s election as President was met with skepticism and fear across much of Indian country. As a candidate, Trump did not publish any substantive proposals for Indian policy. The absence of campaign proposals, coupled with his previous hostility toward Indians and the records of people advising his campaign, invited Indian country to assume the worst.
Those assumptions were on display during the Presidential Transition, when comments made by Transition Team adviser U.S. Rep. Markwayne Mullin were interpreted as advocating for another era of tribal termination:
“We should take tribal land away from public treatment,” said Markwayne Mullin, a Republican U.S. Representative from Oklahoma and a Cherokee tribe member who is co-chairing Trump’s Native American Affairs Coalition. “As long as we can do it without unintended consequences, I think we will have broad support around Indian country.”
Rep. Mullin’s comments were misinterpreted and overblown at the time, but the fear that gave rise to that misinterpretation was justified. Donald Trump has been the President for nearly four months, and his administration has done little (if anything) to assuage Indian country’s concerns.
Within days of taking office, he issued executive orders approving the Keystone XL and Dakota Access Pipelines over the objections of Indian tribes, and without consulting those tribes. More recently, he announced a review of President Obama’s designation of the sacred Bears Ears as a National Monument without tribal consultation. Tribal leaders in the Four Corners area have had a difficult time even getting a meeting with officials in the Trump Administration to discuss their concerns with reviewing the Bears Ears Monument designation. The Department of the Interior has also announced a new policy (again, without tribal consultation) to have senior officials in the BIA’s Washington, D.C. office review and approve land-to-trust requests for off-reservation land. This will have the effect of slowing those types of acquisitions almost to the point of a moratorium, making it harder for small land-base tribes to establish a reservation.
Indian country’s biggest fear with a Trump Administration has been that the Federal Government would usher in yet another era of tribal termination. I wrote a post in 2016 explaining that then-candidate Trump’s views on Indian tribes appeared to be rooted in a philosophy that Indian tribes were nothing more than race-based associations, rather than sovereign legal entities.
As President, Donald Trump, his administration, and his congressional allies have done little to put these fears to rest. Consider:
- Rob Bishop, the Chairman of the House Natural Resources Committee, appeared at an event sponsored by the American Enterprise Institute shortly after Trump’s inauguration to discuss Naomi Schaeffer Riley’s book “The New Trail of Tears: How Washington is Destroying American Indians.” Prof. Fletcher has extensively reviewed this book on this blog, so I won’t add more here. Suffice it to say that Schaeffer Riley’s book is a repackaging of the rhetoric that was used to push through tribal termination legislation in the 1950’s – especially the emphasis on converting tribal lands to private property for the supposed good of Indian people. You can watch the event online, with Rep. Bishop’s remarks beginning just after the 19:30 mark.
- Last week, Secretary of the Interior Ryan Zinke gave remarks at the National Tribal Energy Conference, during which he stated: “We need a discussion on that. As I look at the 1934 Indian Reorganization Act, I think it’s time for a dialogue. ‘What are we going to be 100 years from now? Is there an off-ramp? If tribes would have a choice of leaving Indian trust lands and becoming a corporation, tribes would take it and quite frankly at BIA (the Bureau of Indian Affairs), I’m not sure in many ways we’re value- added.” Secretary Zinke’s comments mirror the language used to support tribal termination in the 1950’s, and to avoid recognition of Alaska Native tribes as “Indian tribes” in the Alaska Native Claims Settlement Act. In both instances, private property, corporate status, and avoidance of federal trusteeship was viewed as good for Indian people. Those who lived through that experience would beg to differ.
- And, on Friday, President Trump issued a Presidential Signing Statement accompanying his approval of the FY2017 Appropriations Bill suggesting that Native American Housing Block Grant Programs are somehow constrained by the 5th Amendment’s prohibition against racial discrimination. This signals a belief that Indian and tribal programs are unlawful racial privileges, rather than part of a trust relationship rooted in treaties and law. If that is the case, then all of the legal rights that Indian tribes possess would be unconstitutional racial benefits and the legal status of tribes would be terminated.
The day after Secretary Zinke’s comments, Acting Deputy Secretary of the Interior James Cason issued a letter to the National Congress of American Indians stating that he was “deeply disturbed” by the mischaracterization of Zinke’s remarks: Cason to NCAI. He added a qualifier that there were no plans “at this time” to change the relationship between the Department of the Interior and tribes, but added that there were “options” for “Tribes interested in exercising a greater degree of self-governance and sovereignty.”
James Cason is a veteran of Indian policy issues at the Department of the Interior, having spent eight years at the Department in the George W. Bush Administration. He understands that talk of an “off-ramp” from the Indian Reorganization Act’s tribal government model toward corporate status would evoke worries about tribal termination (hence the rapid follow-up letter to NCAI).
There are many professionals working in Indian law and policy who dismiss concerns about tribal termination as fear mongering or crying wolf.
But, the potential for tribal termination policy isn’t conjured up out of a rampant imagination. It has happened before, and recently. You can’t ask people who experienced tribal termination firsthand to ignore their own experiences. Moreover, there are influential people in conservative circles who espouse the view that Indian people would be better off without Indian tribes, or the view that tribal status is some sort of unfair, tax-free advantage conferred on a few lucky people. Many of those people have ties to the Trump Administration or congressional leaders.
Taken in isolation, any of the statements or actions listed above could be dismissed. But, a pattern is emerging in the early days of the Trump Administration that lends support to Indian country’s worst fears.
Admittedly, I did not support Donald Trump’s candidacy. But, he is the President. I accept that the White House and the Secretary of the Interior’s Office will be occupied by both Democrats and Republicans throughout my lifetime. I want Indian tribes to successfully work with Republican and Democratic administrations to improve federal policies for all of Indian country. Success in this regard requires mutual trust.
The Trump Administration could earn a lot of trust by issuing a clear, unequivocal, and unqualified statement that it will oppose any legislation or lawsuit that would diminish the legal status of Indian tribes or remove legal protections for existing Indian lands. And, it must cement that trust through its actions.