by Kerri J. Malloy
With each new presidential administration comes a level of uncertainty in Indian Country.[1] The uncertainty is not based on the fear of what the new administration knows about Indian affairs, rather their level of ignorance. Most political figures in the United States, as well as the general populous, are poorly educated on the legal relationship between the federal government and the 566 federally recognized tribes that have called this continent home for thousands of years. To understand this relationship is to understand the foundations of poverty in Native America, the actions that have been taken to address it, and the implications of the policy trajectory of the new administration.
The United States holds 56 million acres of land in trust for the benefit of tribes and their citizens.[2] Congress estimates that the natural resources housed within these lands are worth approximately $1.5 trillion.[3] These lands contain 30% of the nation’s coal reserves, 50% of its uranium reserves, 20% of the known natural gas and oil reserves, 5.3 million acres of timber land, and 77% of tribal trust lands are classified as rangelands. Despite these vast and commercially viable resources, the 2015 American Community Survey shows that American Indians had a median household income of $38,530 and a 26.6% poverty rate.
These natural resources make the poverty rate among American Indians not only unjustifiable, but mind boggling. This stark reality can only be understood through the historical development of the relationship between the United States and Indian Tribes. The U.S. government, through centuries of policy and practice, established and maintained Indian poverty. From the outset, the United States worked to incorporate systems that would dispossess tribes of their lands by creating legal fictions in precedent-setting judicial opinions. Then under guise of liberating the American Indian from the paternal relationship with the federal government, successive U.S. administrations engineered a policy that not only dispossessed tribes from their lands but also ended the federal Indian trust responsibility. From the darkest period of the U.S. presidency came the reestablishment of the federal Indian trust relationship and a new era of self-determination. In this new era, the mismanagement and neglect of the United States’ legal obligations at the expense of Native America was brought before the courts to address centuries of a failed trusteeship. Understanding this historic and legal relationship provides an insight into the structural causes of poverty in Native America and the one-sidedness of federal Indian policy.
Marshall Trilogy
In 1823, the Supreme Court of the United States issued its opinion in Johnson and Graham’s Lessee v. William M’Intosh which settled a land claims dispute in Illinois. The case centered on the question of whether tribes had the right to sell their land to individuals or were obligated to sell only to the Untied States government. The question arose from competing claims to the same parcels of land: one from individuals who claimed to have purchased the land from the Piankeshaw Indians, and a second who was given a land grant as a pension for services in the Revolutionary War by the United States. This case, which on its surface would seem to have been restricted to a narrow question of which parties’ claim was valid, solidified the principle that has governed the complex relationship between federally recognized tribes and the United States for the last two centuries: that the tribes do not have direct ownership of land, but rather a right to occupy that land which can only be extinguished by legal instrument with the United States.[4]
The United States has not always adhered to its legal and moral obligation towards American Indians.
In his opinion, Chief Justice John Marshall wrote, “discovery gave an exclusive title to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave the right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.” Marshall had embedded the Doctrine of Discovery under the European Law of Nations—the principle that title to discovered lands transferred to the Crown upon “discovery” by a Christian monarch—into United States jurisprudence. While the indigenous people retained a right to occupy the land, title was restricted to transfer only to the Crown or its successors, in this instance the United States.
Additional rulings in the following decade would limit the definition and extent of the sovereignty tribes would be permitted to exercise. Court rulings in two separate opinions, which when added to the decision in Johnson v. M’Intosh became known as the Marshall Trilogy, significantly curtailed Indian sovereignty. In Cherokee Nation v. Georgia (1831), the Supreme Court held that the Cherokee were neither citizens of the United States nor a foreign nation, but rather “domestic dependent nations” with a relationship to the United States that “resembles that of a ward to his guardian.” This decision became the foundation of the trust-relationship between tribes and the United States. Rounding out the trilogy was Worcester v. Georgia (1832), which further clarified the status of tribes, declaring that Congress had plenary power over the tribes and that states could not extend their laws into Indian Country.
Federal Trust Responsibility
These cases form the foundations for the federal Indian trust responsibility, which the U.S. Supreme Court found to be a legal and moral “of the highest responsibility and trust” in Seminole Nation v. United States (1942). As a legally enforceable fiduciary obligation, the federal Indian trust responsibility is meant “to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law concerning American Indian and Alaska Native tribes and villages.”[5]
The United States has not always adhered to its legal and moral obligation towards American Indians and sought to end this relationship through the Indian Reorganization Act of 1934 (IRA)—the seminal legislation of the Indian New Deal initiated by President Franklin Roosevelt which inaugurated the era of termination. The IRA was meant to undo the negative impacts of the General Allotment Act of 1887 and provide a mechanism for tribes to develop economies to support governmental and individual aspirations. In 1953, House Concurrent Resolution 108 determined “as rapidly as possible to make the Indians…subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens [and] to end their status as wards…and to grant them all rights and prerogatives pertaining to American citizens.”[6][7]
This was followed by a vote in Congress to terminate seventy tribes through various legislation. Final rolls were to be prepared, and each tribal citizen was to be given a personal property right in the undivided tribal assets. Yet on July 8, 1970, the termination era officially came to an end when President Richard M. Nixon, in a Special Message to Congress on Indian Affairs, articulated a new direction for federal Indian policy—one of self-determination without termination.
The Cobell Settlement
The era of self-determination did not usher in prosperity for American Indians. With the federal Indian trust relationship firmly intact, the obstacles of the fiduciary responsibility continued to hinder individuals and tribes from escaping the entrapments of poverty. On June 10, 1996, Elouise Cobell filed the largest class action lawsuit in United States history against the United States government, asking for an accounting of trust assets since the late nineteenth century that were valued in billions of dollars.[8]
The United States government was responsible for the negotiation and issuing of leases for natural resource extraction (ore, oil, and gas), grazing and timber harvesting, and for the collection of lease payments for distribution to individual American Indians and tribes. Cobell, as lead plaintiff, argued that the United States government had not only mismanaged the revenues from these leases but had diverted funds to other areas of federal government operation, which amounted in some cases to pure theft. For fifteen years, the case lingered in the federal court system, encountering numerous appeals and the holding of the Secretary of Interior, Assistant Secretary of Indian Affairs, and Treasury Secretary in contempt.
In June 2011, the case came to an end, with the signing of legislation by President Barack Obama that compensated individual American Indians and tribes with a $3.4 billion settlement. While the settlement brought one-time payments to individual American Indians and tribes, it did not require the United States to produce the accounting of revenues that was the premise for the lawsuit. It may never be known exactly how much money was left unaccounted by the trustee for American Indians.
Privatization and Ignorance
In the months following the election of Donald J. Trump to the presidency of the United States, Congressman Markwayne Mullin, co-chair of his Native American Affairs Coalition, proposed the removal of public land restrictions as an effort “to end the overreaching paternalism that has held American Indians back from being the drivers of their destiny.” Mullin’s rhetoric is reminiscent of the era of termination, demonstrating a lack of understanding of the history of federal Indian policy from one of the two American Indians currently serving in the United States House of Representatives.
Mullin’s demeaning, misleading remarks, coupled with President Trump’s history as a private citizen of disparaging Indian tribes, do not bode well for addressing the issues of poverty in Native America. Trump viewed Indian tribes as competitors in the casino industry, and he brandished his ignorance before the United States House of Representatives Committee on Natural Resources, which has jurisdiction over Indian Affairs, when he said, “…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.”[9] This is just one example of Trump’s ignorance about American Indians, many of which were detailed in The Washington Post article, “Donald Trump’s long history of clashes with Native Americans,” in July 2016.
If budgets are the moral statements of a nation, then the President’s first budget demonstrates the turning of the United States’ moral compass away from the federal Indian trust responsibility. The proposed budget calls for cutting approximately $300 million from the Bureau of Indian Affairs, $64 million from Indian education programs, $21 million from Indian Country law enforcement and $22 million from community and economic development programs.[10] This turning away from the federal Indian trust responsibility is a rebuke of the nation’s moral obligation and the compounding of the issues that have imposed poverty on Native America.
Solving Indian poverty “demands that we view poverty in Native American as a wrong worth addressing. But most importantly, it requires a willingness to learn.”
Within Native America lies an abundance of natural resources that has the potential to change the lives and living conditions of the first people of this continent. The quagmire of the federal Indian trust responsibility holds this potential hostage, thus denying individual American Indians and tribes of economic security. Tribes and their citizens must seek, in most cases, the approval of the Bureau of Indian Affairs to enter leases with companies to extract those resources that would provide revenues combat poverty. Adding to this bureaucratic melee is the willful ignorance of members of Congress and the President himself. Though they are not entirely to blame for the state of Indian affairs, the American public shoulders part of the responsibility for its own decision to not understand the relationship between the United States and the federally recognized tribes.
While the final decision on if and how to utilize the natural resources of their land lies with the tribes, they are held hostage by a system that is rooted in the ideals of paternalism—ideas of white superiority and guardianship over inferior Indians.
Fortunately, the issues that have imposed poverty on American Indians can be addressed. Doing so requires education and an understanding of the historical legal relationship that has developed between the United States and federally recognized tribes. It demands that we view poverty in Native American as a wrong worth addressing. But most importantly, it requires a willingness to learn.
Kerri J. Malloy (Yurok/Karuk) is a Lecturer in the Department of Native American Studies at Humboldt State University where he teaches in the Law and Government pathway of the degree program. He received his Masters of Jurisprudence in Indian Law from The University of Tulsa College of Law. He is currently a student in the Ph.D. in Holocaust and Genocide Studies program at Gratz College.
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Notes
[1] 18 U.S. Code § 1151 defines “Indian Country” as (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
[2] Trust land is land that the United States Federal government holds legal title to but for the beneficial interest of an individual American Indian or a tribe.
[3] United States Senate. 2009. Energy and Energy Efficiency: Hearing before the Committee on Indian Affairs. 111th Cong. (October 22) (statement of Hon. Marcus Levings, Chairman, Three Affiliated Tribes of the Fort Berthold Reservation, Secretary, Council of Energy Resource Tribes).
[4] Federally recognized tribes are American Indian or Alaska Native tribal entities which the United States recognizes has having a government-to-government relationship with and the responsibilities, powers, limitations, and obligations that are part of that designation, and are eligible for funding and services from the Bureau of Indian Affairs.
[5] US Department of the Interior, Indian Affairs. Frequently Asked Questions: Why Tribes Exist Today in the United States. Accessed: August 28, 2017. https://www.bia.gov/frequently-asked-questions.
[6] 83rd Cong. 1st Session (1953) 67 Stat. B122; Documents of United States Federal Indian Policy 234 (Francis P. Prucha 3rd ed. 2000).
[7] Cohen, F. (2005). Cohen’s handbook of federal Indian law. (2005 ed.). Newark, NJ: LexisNexis.
[8] The case originally filled as Cobell v. Salazar was settled as Cobell v. Norton. Information on the settlement and related court documents can be accessed at http://www.indiantrust.com/.
[9] Newland, Bryan. Donald Trump and Federal Indian Policy: ‘They Don’t Look Like Indians to Me.” Indian Country Today. July 28, 216. Accessed August 29, 2017. https://indiancountrymedianetwork.com/news/politics/donald-trump-and-federal-indian-policy-they-dont-look-like-indians-to-me/
[10] Miller, Hayes. “Trump’s Policies Show Profound Disregard For Native Americans, DNC Chair Says.” Huffington Post. August 7, 2017. Accessed August 26, 2017. http://www.huffingtonpost.com/entry/trump-native-americans-tom-perez_us_59889853e4b0ca8b1d49e6df
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