Turtle Talk

Leaders from across Indian country have expressed concern and criticism over the President’s proposed Indian Affairs budget. The President has proposed to slash the budget across the board for tribal programs. The effects of this proposal have been detailed by former Assistant Secretary Kevin Washburn, former Acting Assistant Secretary Larry Roberts, and Reporter Mark Trahant.

I want to take some time to focus on the impact of one particular cut in the President’s budget proposal: Rights Protection Implementation. You can read the entire proposed budget for Indian Affairs here (Rights Protection Implementation begins at page “TNR 10”).

As with all FedSpeak, the term “Rights Protection Implementation” may appear uninteresting on its face. But, it’s actually really important.

Bear with me for a bit, as this requires some explanation.

Rights Protection Implementation – or, “RPI” in FedSpeak – is a line item in the Federal Budget that directly funds the implementation of court orders relating to tribal treaty rights.   This funding is used by 49 different tribes across the United States. The President’s budget proposal itself describes the purpose of this line item:

The Rights Protection Implementation program supports the implementation of Federal court orders that resulted from decisions in complex, off-reservation treaty rights litigation. These cases were based on large land cession treaties in which the signatory tribes conveyed land to the United States and reserved the right to hunt, fish, and gather within the territory ceded. These rights apply beyond particular reservation boundaries and are shared among multiple tribes. Therefore, they have intertribal co- management implications as well as implications for management with other jurisdictions. The Federal Government has generally been a party to or a supporter of the tribes’ claims.

The court orders referenced by the President include federal court decisions in these cases: United States v. Washington; United States v. Oregon; and, United States v. Michigan.

In each of those cases, the Federal Government, as the trustee, brought lawsuits against states on behalf of Indian tribes to protect and enforce tribal treaty rights for hunting and fishing. The courts uniformly recognized that tribal sovereignty means a lot, including not only the authority to exercise the reserved right, but the reserved authority to manage the resource. In each of these lawsuits, the United States negotiated settlement agreements (often called “consent decrees”) on behalf of the tribes. Those agreements require the tribes and the states to fulfill certain responsibilities to ensure that tribal rights are protected and exercised in a meaningful way.

For example, in the case of United States v. Michigan, the Federal Government (and the tribes) reached a consent judgment with the State of Michigan in 2000. As part of that agreement, the tribes take on a number of responsibilities. They include:

• Providing law enforcement of fishing activities over thousands of square miles in Lake Huron, Lake Michigan, and Lake Superior (look at a map to see just how big this area is);
• Collecting data on the fishery in Lake Huron, Lake Michigan, and Lake Superior; and,
• Tracking the sale of harvested fish.

These activities require specially trained employees – such as law enforcement officers, judges and court staff, and biologists. In other words, these activities cost money. The same is true in other consent decrees in similar cases, which is why the Federal Government agreed to provide funding for these activities in the consent decrees.

There are other court decisions funded by this budget line item where the Federal Government wasn’t a party to the litigation. They include: Lac Courte Oreilles v. Voigt, Minnesota v. Mille Lacs and Grand Portage v. Minnesota. Federal funding is necessary for these cases as well, because the tribes must comply with court orders in order to exercise the rights they protected under treaties with the Federal Government.

The RPI line item provides tribes with the funding they need to meet court-ordered requirements in exercising treaty rights. In many cases, the Federal Government agreed to those requirements on tribes’ behalf (or nudged tribes to accept those requirements). This funding is necessary for tribes to continue to be able to exercise the treaty rights they reserved and, later, fought to protect in court.

Now that you have a basic understanding of the purpose of this funding, we can begin to understand the impact of the President’s proposed budget cuts.

President Trump has proposed to cut this line item by a whopping 24%. At any level of government, a 10% budget cut would be considered drastic. Cuts at this level – especially when paired with budget cuts to law enforcement, conservation, wildlife, etc. – will impair the ability of tribes to fully implement their treaty rights. If tribes cannot comply with those court orders their treaty rights are put into jeopardy. So are real jobs.

Tribal treaty rights protect more than cultural and spiritual values, which are invaluable in their own right. They protect the ability of tribal members to earn a living. They also benefit the economy in areas around Indian country in the Great Lakes and the Pacific Northwest.

In Michigan alone, there are 209 tribal fishermen who are licensed to fish under the 1836 Treaty of Washington and the court orders in United States v. Michigan. In economically depressed areas like northern Michigan, these can be good-paying jobs (albeit, demanding and dangerous jobs). Those fishermen buy gas, gear, and goods for their operations at local stores, and their catch is bought by restaurants and markets across the region.

Treaty rights are economic rights. As the Supreme Court stated in the 1905 case of United States v. Winans, those rights “were not much less necessary to the existence of the Indians than the atmosphere they breathed.”

The 2000 consent decree in United States v. Michigan expires in 2020 – just three years from now. The Federal Government and the tribes must negotiate a new agreement with the State of Michigan to take its place. A 24% funding cut to Rights Protection Implementation will hurt the ability of tribes to collect the data necessary to protect their interests in those negotiations. It will also affect conservation enforcement activities, which will subject the tribes to claims that they aren’t fulfilling their end of the bargain. At the end of the day, this will lead to job losses and economic damage in an area of the country that voted for the President.

The RPI funding item in the Federal Budget lies at the heart of the relationship between the Federal Government and Indian tribes because it deals directly with the exercise of treaty rights.

The Federal Government agreed that Indian tribes should take a lead in managing the resource for current and future generations in exercising those rights, but now seeks to frustrate the ability of tribes to fulfill those obligations through a 24% funding cut (much in the same way the President has proposed dramatic cuts to contract support cost funding for tribes). And, in Michigan at least, this proposed cut comes at a time when tribes are preparing to negotiate a new consent decree to protect treaty rights and jobs.

Congress must act to protect this funding. Doing so will protect jobs, resources, and rights for thousands of people across the United States.