ABA’s Native American Resources Committee is sponsoring a webinar on Researching Federal Indian Law and Tribal Law. More information is available here.
See the release here.
“Reid Chambers and Harry Sachse are monumental figures in the federal Indian legal community and Frank Ducheneaux is renowned for his decades of service to Indian Country from Capitol Hill,” said Indian Law Section Chairwoman Ann Tweedy. “We are extremely proud to present the Lawrence Baca Lifetime Achievement Award to three outstanding individuals who have shaped federal Indian law as we know it.”
Reid and Harry will be honored at a luncheon on April 11, 2019, and Frank at a luncheon the following day, each at the Indian Law Section’s 44th Annual Conference on Federal Indian Law, at Sandia Resort and Casino near Albuquerque, New Mexico.
In 1993, Donald Trump appeared before the United States House of Representatives Committee on Natural Resources to offer testimony on Indian gaming. 1993 Donald Trump bears a striking resemblance to Presidential Candidate Donald Trump, in terms of demeanor and language – Trump’s oral testimony is consistent with the language he has used throughout his campaign for President.
Most of Trump’s testimony focused on Indian gaming itself, and his perception that the Indian Gaming Regulatory Act granted tribes an unfair advantage over his own gaming enterprises.
But, it was another part of Trump’s testimony that caught my attention. He questioned the legitimacy of Indian tribes based upon the physical appearance of their members. Here is an exchange he had with Rep. Miller of California:
Mr. Miller. Is this you discussing Indian blood: “We are going to judge people by whether they have Indian blood,” whether they are qualified to run a gaming casino or not?
Mr. Trump. That probably is me, absolutely, because I’ll tell you what, if you look—if you look at some of the reservations that you have approved—you, sir, in your great wisdom, have approved— will tell you right now, they don’t look like Indians to me, and they don’t look like Indians. Now maybe we say politically correct or not politically correct. They don’t look like Indians to me, and they don’t look like Indians to Indians, and a lot of people are laughing at it, and you are telling how tough it is, how rough it is, to get approved. Well, you go up to Connecticut, and you look. Now, they don’t look like Indians to me, sir.
The written hearing records also include a transcript from his appearance on the Don Imus show earlier that same year:
Don Imus Show (June 18, 1993)
TRUMP: Well, I think I might have more Indian blood than a lot of the so-called Indians that are trying to open up the reservations.
I looked at one of them – well, I won’t go into the whole story, but I can tell you, I said to him, “I think I have more Indian blood in me than you have in you.” And he laughed at me and he sort of acknowledged that I was right. But it’s a joke. It’s really a joke.
IMUS: A couple of these Indians up in Connecticut look like Michael Jordan, frankly.
TRUMP: I think if you’ve ever been up there, you would truly say that these are not Indians. One of them was telling me his name is Chief Running Water Sitting Bull, and I said, “That’s a long name.” He said, “Well, just call me Ricky Sanders.” So this is one of the Indians.
You can see a video of Trump’s appearance before the Committee here. The transcript and hearing record is available here: 1993 Trump Nat Res Testimony PDF. (Trump’s testimony begins around Page 175). I recommend reading the entire portion of the record involving Trump, as it sheds light on his views on Indian gaming, tribal sovereignty, and the tax status of Indian tribes.
It is tempting to heap these comments onto the pile of other racist comments that Trump has made and be done with it.
But, Trump’s 1993 comments to the Natural Resources Committee highlight a problem that has plagued federal Indian law from the Indian Reorganization Act until today: the tension between the racial and political identity of Indian people.
Trump’s comments shed light on how a Trump Administration may implement its Indian policy, posing a real risk that the federal government will subordinate the sovereign status of Indian tribes to the racial identity of individual Indians. Such a policy would rely on a subjective evaluation of who is “Indian enough” in Trump’s estimation.
In the past, when the Federal government has focused on the racial identity of Indians (rather than our political identity), it has almost always been done to limit the Federal government’s trust obligations to Indians.
The Indian Reorganization Act and “Half-Blood” Indians
For nearly 160 years – from 1776 until 1934 – federal Indian policy could be fairly summarized this way: get rid of the Indians (through war or assimilation) and take their land.
In 1934, Congress enacted the Indian Reorganization Act, or the “IRA”. The IRA marked the beginning of modern federal Indian law, and at least recognized the right of Indian people to govern themselves into the future. Congress also understood that this would put the federal government on the hook for a continuing relationship with Indian tribes, and was forced to confront how to decide who were the “real Indians” and who were not.
On May 17, 1934, the United States Senate Committee on Indian Affairs debated the terms of the IRA. At issue in that debate was which Indians would be eligible to organize under the IRA and which Indians would be left out. Here is an exchange between Committee Chairman Burton Wheeler and Indian Affairs Commissioner John Collier during that debate:
The CHAIRMAN. There is a later provision in here I think covering that, and defining what an Indian is.
Commissioner COLLIER. This is more than one-fourth Indian blood.
The CHAIRMAN. That is just what I was coming to. As a matter of fact, you have got one-fourth in there. I think you should have more than one-fourth. I think it should be one-half. In other words, I do not think the Government of the United States should go out here and take a lot of Indians in that are quarter bloods and take them in under the provisions of this act. If they are Indians of the half-blood then the Government should perhaps take them in, but not unless they are. If you pass it to where they are quarter-blood Indians you are going to have all kinds of people coming in and claiming they are quarter-blood Indians and want to be put upon the Government rolls, and in my judgment it should not be done. What we are trying to do is get rid of the Indian problem rather than to add to it.
Senator Wheeler expressed concern that the IRA would be used by “white people” (his words) claiming to be Indian.
When the IRA was enacted into law one month later, it defined “Indian” as:
…all persons of Indian descent who are members of a recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.
The Bureau of Indian Affairs and Indian tribes are still wrestling with this definition today – as seen in the Carcieri decision and the recent Mashpee litigation. The logical definition of “Indian” should have been simply, “all members of a recognized Indian tribe;” but, by adding time, residence and blood quantum limitations, Congress was seeking to evade its financial obligations and to constrain of the sovereign status of tribes.
Political Identity v. Racial Identity and Historic Tribes v. Created Tribes
In the 1970’s, the BIA implemented a policy of “Indian preference” in employment – this applied to new employment, and opportunities for promotion within the BIA. Non-Indian employees of the BIA filed a class-action lawsuit alleging that this preference in employment was unconstitutional racial discrimination. The case – Morton v. Mancari – reached the U.S. Supreme Court in 1974. The Court upheld the BIA’s preference program, explaining that it was not racial discrimination. Instead, the Court stated that the preference was aimed at Indians as members of a political entity – similar to state-laws allowing state governments to grant employment preference to state residents:
Contrary to the characterization made by appellees, this preference does not constitute “racial discrimination.” Indeed, it is not even a “racial” preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be “an Inhabitant of that State for which he shall be chosen,” Art. I, § 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent group in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indians.
At the same time as Morton v. Mancari, the Department of the Interior was drawing distinctions between Indian tribes based upon when and how they were recognized by the federal government. Attorneys within the Department’s Office of the Solicitor advanced the theory that some Indian tribes were “historic tribes,” because they have always maintained a relationship with the United States, while other tribes were “created” by the federal government. According to those attorneys, only “historic tribes” could exercise the full sovereign powers of Indian tribes, while “created tribes” had lesser sovereign powers.
Not surprisingly, the “historic tribes” included many of the Indian tribes that fit the romanticized ideal of Indians – tribes in the Great Plains and the Southwest (i.e. those tribes whose members “looked” like Indians). “Created” tribes were often those tribes whose members did not look like the Indians people saw in Hollywood westerns – people with lighter hair and eyes, or people with mixed Black or Mexican ancestry. This standard of “Indianness” ─ a Federal race-based standard ─ was again used to limit tribal sovereignty and contain the “Indian problem.”
The Department’s disparate treatment of “historic” and “created” tribes got so bad that Congress intervened, and enacted amendments to the IRA in 1994 to prevent the BIA from discriminating among tribes on this basis.
Trump and Indian Policy Today
Indian law today rests in large part upon the distinction between Indians as members of a racial/ethnic group, and Indians as citizens (a more accurate term than “members”) of sovereign political entities. This principle is foundational.
There are 568 federally recognized Indian tribes today, from southeast Florida to the north slope of Alaska. Some tribes’ citizens look like the idealized Indians from George Catlin paintings, while other tribes’ citizens would not “appear” to be Indian to a passerby on the streets of Washington, D.C. Despite the vast differences in their racial purity, every tribe maintains the right to determine its own rules for citizenship, to be governed according to its own laws, and to engage with the United States on a government-to-government basis.
But, there continue to be people who either don’t understand the distinction between the ethnic and political identities of Indian people, or who want to eliminate that distinction altogether.
In its recent decision in Adoptive Couple v. Baby Girl, the Supreme Court carved a hole in the Indian Child Welfare Act (which was enacted in 1978 to stop the epidemic of Indian children being taken from their families in Indian communities). In writing for the Court, Justice Alito left little doubt that the decision was premised on the Indianness of Baby Girl. Here is the first line of his opinion: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.”
Last year, the Goldwater Institute in Arizona filed a lawsuit against the Department of the Interior seeking to overturn the entire Indian Child Welfare Act, arguing that the act unlawfully discriminates against Indian children on the basis of race. (The opening page of its complaint alleges, “Children with Indian ancestry, however, are still living in the era of Plessy v. Ferguson”).
The continuation of Indian tribes as sovereign governments in the United States depends, in large part, upon the distinction between Indians as a race of people, and Indians as citizens of Indian tribes. To blur or eliminate that distinction is to take an axe to the trunk of the tree of federal Indian law – federal laws applicable to Indians would be subject to the U.S. Constitution’s prohibition against racial discrimination.
Donald Trump’s most notable comments about Indian tribes – made before the Committee on Natural Resources – reveal that he does not draw the distinction between the racial and political identities of Indian people. His view of the legitimacy of Indian tribes depends on the physical appearance of their members. As he told Don Imus, “it’s just one of those things that we have to straighten out.”
A Trump Administration that acts upon that impulse will dramatically alter federal Indian policy as we know it.
Whether you are a practitioner currently working in Indian Country, or looking to learn more about the exciting and broad field of Indian Law, do not miss the Fourth Annual Indian Law CLE. Please join the Indian Law Section at the Legendary Waters Resort and Casino in Bayfield, WI as we discuss current topics in Indian Law. This program will be submitted to the Wisconsin Board of Bar Examiners for up to 8.0 CLE credits. We will also be submitting this program for ethics and professional responsibility (EPR) credits.
More info here.
M. Alexander Pearl has posted “Of ‘Texans’ and ‘Custers’: Maximizing Welfare and Efficiency Through Informal Norms,” forthcoming in the Roger Williams University Law Review, on SSRN.
Here is the abstract:
Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal problems in Indian Country miss the mark and an alternative solution prioritizing the operation of informal norms and private ordering should prevail over application of external law and structures.
This article expands upon Ellickson’s assessment of how social behavior is affected by law and other forces, such as the informal norms in a given social group. Part I explains Ellickson’s theory and analyzes other important contributions made by other scholars. Part II discusses the taxonomy of historical and current examples of communities utilizing informal norms, or private law based mechanisms, to resolve disputes and how efficient results that maximize welfare (as defined by the community) are achieved. Part III, addresses the question of whether government law enforcement interferes with the close-knit community to an extent great enough to diminish the efficacy, or existence, of operative informal norms. Part IV examines anthropological sources to argue that the unique attributes of various Indian tribes and tribal communities warrant definition as the type of close-knit communities contemplated under Ellickson’s theory. Part V explains why the informal norms of certain tribal communities should be allowed to operate without interference from outside legal forces (Custers). Finally, Part VI looks at the relevant provisions in the recently passed Tribal Law and Order Act of 2010 and asks whether they effectively address the criminal justice issues facing Indian tribes subject to State criminal jurisdiction.
Kathy Lynn and Kyle Powys Whyte have posted “Indigenous Peoples, Climate Change and the Government-to-Government Relationship” on SSRN. Here is the abstract:
Climate change impacts present indigenous peoples with distinct challenges, from the loss of species needed for subsistence practices like fishing and plant gathering, to coastal erosion that may force some communities to migrate away from areas they have inhabited or used for many years. Students, activists, environmental managers, scholars and corporate and political leaders of all heritages should be aware of how indigenous peoples must address climate change impacts from global to community-level scales, and the obstacles they may encounter due to intersecting oppressions, like cultural imperialism and disempowerment. To create such awareness, there is a need for more work that describes the specific sites of interaction relevant to indigenous peoples and climate change. Sites of interaction are the local and regional places where indigenous peoples are in relationships with governments, non-governmental organizations (NGOs), networks and alliances. Better understanding the relationships that indigenous peoples have with these groups and institutions contributes to fostering unique and necessary indigenous approaches to address climate change that reflect their unique cultural connections to the earth. This paper focuses on one of the critical sites of interaction for indigenous peoples in the United States — the government-to-government relationship. While the government-to-government relation is not a new approach, this paper examines how it might operate in indigenous climate change adaptation contexts in the United States. We describe a set of examples of consultation and collaboration and offer seven recommendations that demonstrate the value of tribal responses to climate change.
The parties have filed cross-motions for summary judgment:
The United States and the State of Nebraska have each filed briefs on the question of whether the Omaha Tribe’s 1854 reservation has been diminished/disestablished, with the federal government supporting the tribe and the state opposing:
Here are the new materials:
Prior post here.