Research Reports
Reflections on Traditional American Indian Ways, 1998
Threats to Tribal Sovereignty, 1998
Traditional American Indian Leadership: A Comparison with U.S. Governance, 1997
Contemporary Threats to Tribal Sovereignty From Congress
As Indians continue to exercise their sovereign rights as nations and demand accountability from the United States to fulfill its trust responsibility, there are continuing attempts by non-Indians to contest sovereignty. Three major forums through which these challenges are currently being mounted are the court system, U.S. Congress, and state governments. Current efforts to erode Indian sovereignty are perhaps significantly more subtle than previous overt anti-Indian policy and assimilation. These most recent policy efforts incorporate sophisticated legal and political tactics which do not use the words assimilation and termination, yet the consequences for Indian people may be just the same.
Threats from the U.S. Congress
The United States Congress has the authority to set Indian policy despite the sovereign status of Indian nations. This is called the plenary power doctrine. A consequence of the plenary power doctrine is that courts do not review legislation in Indian affairs on the basis of whether it has a negative impact on tribes. Congress has the authority to pass laws in Indian affairs and therefore federal legislation is a "political judgement" which is not, in the court's opinion, itself subject to judicial review. Therefore, Congress can enact legislation which impacts Indian tribes in negative ways and still be within their Constitutional authority. However, Congress also has the responsibility to protect the resources and sovereign status of Indian tribes.
Legislation passed by Congress that negatively affects Indian tribes is in direct conflict with the trust responsibility of the U.S. government.
Congress is supposed to work for the benefit of Indian nations, including the protection of sovereignty and treaty rights. This dual responsibility-- the plenary power doctrine on the one hand, and the trust obligation on the other, creates a condition of ambiguity between Indian Country and the U.S. Congress that remains unresolved. Policy consequences of this ambiguity swing back and forth: sustaining sovereignty in some actions and dismantling sovereignty through other actions.
Careful monitoring and action by tribes is crucial for protecting tribal sovereignty during this politically volatile era. The National Congress of American Indians at its 53rd annual convention stated that, "anti-Indian bills introduced in the 104th Congress should serve as a reminder that tribal sovereignty and tribal rights require constant attention by the tribes in the legislative and judicial arenas" (National Congress, 1996, p. 142). Examples of legislative action in recent Congresses include the following:
- Devolution of federal welfare programs to the states.
- Proposed amendments to policies affecting Indian tribes including the Indian Child Welfare Act (1978) and the Indian Gaming Regulatory Act (1988).
- Proposed taxation of Indian gaming and sales taxes to non-Indians on trust lands.
- Proposed amendments to regulatory authority of Indian tribes in the name of environmental protection.
Devolution and Its Impact on Sovereignty
The 104th Congress continued a decade-long national trend of shifting federal administration of social and regulatory programs to the states. This devolution has significant implications for tribal governments. The federal government has historically carried out its trust responsibility to Indians in education, health and welfare via federal social programs. As devolution proceeds and social programs are transferred to states, many Indian programs at the federal level risk being similarly transferred. As a consequence tribes face the task of negotiating with states for Indian programs which should legitimately fall under the trust responsibility of the U.S. government.
In the 1930's, the federal government began funding this trust obligation through general assistance and welfare programs. The implications of this 1930's policy will affect Indian Country in the 1990's. Douville says, "this shift in distributing treaty funds is a major problem because these treaty benefits suddenly became part of the welfare and general assistance programs that are generally regarded by the working class as handouts and a burden to the taxpayers" (Douville 1996, A5).
While many tribes "strenuously" objected to the Personal Responsibility and Work Opportunity Reconciliation Act (1996), there was no consultation with tribes and no means for tribal intervention to mitigate the potential damage. A Tribal Leaders Statement, from the Partnership for the Future Conference held in Seattle in October 1996, warned that Indian tribes have not had the opportunity to get themselves ready to implement these reforms. The effects of welfare reform will be devastating to some tribes. The intent of this legislation is to move people off welfare and into the job market. The point is lost in Indian Country where most reservations have little economic base and there are few jobs for Indian people. Many tribes assert that amendments to the bill will be necessary if Congress is to comply with its trust responsibility and obligation.
The 105th Congress continued many of the efforts of its predecessor. Some members of Congress wanted to curtail discretionary spending as much as possible, and it is likely that entitlement programs will continue to be restructured or cut back. Because funds for Indian programs have been placed under the rubric of discretionary spending, instead of a separate category befitting the trust obligation, it is likely that efforts to decrease funding will continue to impact tribes and their members.
In the effort to reduce federal spending, no distinction is being made between the government's trust obligation to Indian tribes and social spending for non-Indians. Last session, Title VI was passed which gave tribes authority over and access to funding for housing assistance. This session, House of Representatives Resolution 2 (1997) was introduced to decrease funding assistance for public rental housing. It is of little importance to have authority over spending money that does not exist.
In lieu of the upcoming hardship, Congress has amended the Social Security Act and created the Temporary Assistance for Needy Families program. This program will be implemented by the states with tribal government participation which places tribes in the situation of adhering to state regulations. If this bill is passed, assistance will be dispersed at the discretion of a state council. There are no requirements to include Indian representation on the council.
Also during the 105th Congress, Senator Slade Gordon introduced a provision to the fiscal year 1998 Department of Interior appropriations bill that would impose a means test for federal funding allocated to Indian tribes. Ultimately, this provision was dropped as a result of pressure from tribal governments, however, the bill authorizes a tribal task force to allocate some of the increases in funding. Despite the high levels of unemployment and poverty on many, if not most, reservations, federal funding allocations for social welfare programs are not based on needs. Rather, those resources are part of the trust responsibility of the United States government toward Indian tribes. Means testing for such programs violates the treaty responsibilities and federal trust relationship (National Congress of American Indians, Policy Alert, October, 1997).
Amendments to Key Policies Affecting Indian Tribes
During the 104th Congress, a number of legislative amendments were proposed which could result in weakening the sovereign status of tribes in a variety of ways. States would gain greater leverage in gaming negotiations from a proposal in an appropriations bill waiving tribal sovereign immunity, from amendments to ICWA (1978) that weaken tribal rights to define membership, and from amendments to IGRA (1988). Amendments were also proposed to the Clean Water Act (1977) that would strip tribes of their authority to regulate water policies on reservations.
The 105th Congress resumed consideration of similar amendments made but not passed in the 104th Congress. Several bills, such as House of Representatives Resolution 325 (1997), have been introduced to amend the Indian Gaming Regulatory Act that would grant states greater leverage in compact negotiations and the capacity to tax gaming revenue (National Congress of American Indians Askwitteachik Website, April 1, 1997). Similarly, U.S. Representative Bill Redmond (R-New Mexico) voiced his intention to introduce the Indian Sovereignty Definition Act of 1998 as a result of the state compact negotiations with the New Mexico Pueblo this past fall. The compact calls for a 16% tax on gaming revenues payable to the state of New Mexico. Southwestern tribes have been meeting with Rep. Redmond to deter him from introducing this detrimental legislation.
Other gaming amendments introduced in previous sessions of Congress include, the House of Representatives Resolution 334 (1997), called the Fair Indian Gaming Act, which shifts burden of proof from the state to the tribe in compact negotiation. This bill introduced under the auspices of devolution would transfer IGRA oversight from the Department of the Interior to the Office of the Governor or the state legislature. Further, this act called for a two year moratorium on class III gaming and would require increased record keeping requirements. Moreover, the Attorney General would be directed to investigate tribal gaming and extend state criminal authority on tribal lands. Legislation such as this would significantly alter the nature and function of tribal governments.
Also introduced during the 105th Congress are joint bills in both the Senate and the House of Representatives in attempt to "correct the definition of Indian reservation" for the IRS tax code (Senate Resolution 470 (1997) and House of Representatives Resolution 1095 (1997)). The previous definition, it is argued in these bills, allowed for businesses to claim "accelerated depreciation" if they were located on land that currently has no ties to Indian land. This bill includes all lands that do not technically fall under the definition of reservation in the Indian Child Welfare Act of 1978. Consequences of this bill would be to narrow the existing definition of "reservation."
Taxation of Indian Tribes
Federal legislation was proposed during the 105th Congress in a number of areas with respect to taxation and gaming. Representative Istook (R-Oklahoma) introduced House of Representatives Resolution 1168 (1997) which was intended "to restrict the Secretary of Interior from taking land into trust for the benefit of a Tribe until the tribe enters a tax collection agreement with State and local governments for sales and excise taxes imposed on all retail sales to non-Tribal members occurring on those Tribal trust lands" (National Congress of American Indians Askwitteachik Website, April 1, 1997). In addition, under this proposed legislation, state and local governments would be given veto power over tribal expansion of trust lands. A similar bill passed last session in the House of Representatives (House of Representatives Resolution 3662 (1996)).
Regulatory Authority of Indian Tribes
Amendments proposed during the 105th Congress to environmental legislation such as the Endangered Species Act (1973), Superfund (1994), the Clean Water Act (1977), and nuclear waste storage will affect Indian country. The House is considering House of Representatives Resolution 193 (1997) which prohibits any area from being declared an historic district, site or national monument that is defined "unimproved" or "unmodified natural landscape" or does not contain any evidence of human activity (National Congress of American Indians Askwitteachik Website, April 1, 1997). This would affect tribal sacred lands. Tribal land is also threatened by House of Representatives Resolution 253 (1997) which gives holders of mineral claims exclusive rights to possession and use of land for mineral activities.
Much of this legislation is designed to strip tribal authority and to grant states more regulatory power in Indian Country. Some of these efforts are political strategies to impose hazards on Indian tribes that non-Indian communities are not willing to accept. For example, the federal government is pursuing a policy of locating nuclear waste on tribal lands. The Office of Waste Negotiator was created to recruit states and/or tribes to host high level nuclear waste storage facilities. Politically the federal government targeted Indian tribes as ideal hosts for this waste in a much more aggressive manner than they did with states. The Goshute reservation in Utah has been identified as an ideal high level radioactive waste dump for tons of irradiated waste.
In addition to the federal government, states and private electrical utilities are very active in this effort. States and private utilities are also looking at placing nuclear waste in the backyard of other Indian tribes. In California, a multi-state compact has chosen Wind Valley, an area in the middle of four reservations, as the location for medical and commercial radioactive waste.
In Minnesota, Northern States Power Company, supported by the governor, has won the ability to "temporarily" continue storing more waste from its nuclear power plant on land of the Prairie Island Mdewakanton tribe. Then-tribal vice-chairperson Darelyn Lehto, in a speech for the National Sovereignty Rally in Washington (January 21, 1997), said that sovereignty means the "right to live safely and peacefully on our land and govern our community in ways consistent with our culture and heritage." Northern States Power's nuclear facility and waste, and other policy efforts to locate hazardous waste facilities on Indian land threaten tribal safety. Lehto (1997), added that radiation was leaked at the Prairie Island plant in 1979 and 1994 and the Indian "community was never notified."
Other Important Policy Issues
English-only bills were introduced in the 105th Congress without consideration for native languages, while other bills attempting to correct past injustices to Indian people stagnate in committee. For example, Senate Resolution 156 (1997) was to compensate the Lower Brule tribe for losses from the Fort Randall and Big End hydro-electric projects. These projects led to flooding on Lower Brule lands. Congress authorized the purchase of over 22,000 acres of reservation land for these projects and the Army was directed to "protect, replace, relocate or reconstruct" the land as necessary (Public Law 85-923; Public Law 87-734). This has not happened. In addition, the tribe was promised homes, a community center and a gymnasium, among other things. The tribe has yet to see any of this come to fruition. Pro-tribal bills for economic development introduced by Senator McCain (R-Arizona) and Representative John Shadegg (R-Arizona) were held up in committee.
Another important issue is the $2.4 billion Indian trust fund account that has been "lost or misplaced" by the U.S. government. The account represents 2000 tribal accounts ($2 billion) and 300,000 individual accounts ($450 million).
The
Well-Being of American Indian Children in Minnesota: Economic Conditions,
1994
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