Lisa Shellenberger of Smith, Shelton & Ragona, LLC
Congress, American presidents, the United States Supreme Court, and the States have all, in many varied ways, given recognition to Native American tribes as sovereign entities. Sovereign tribal authority is inherent to Indian tribes and pre-dates any other form of law in this country. It is recognized in enduring constitutional principles, and the Supreme Court has explicitly confirmed that the United States Constitution acknowledges the status of tribes as nations. Due to their sovereign, national status, tribes are political entities; they are not racial groups. Therefore, the federal and state governments must deal with tribes differently. Morton v. Mancari, 417 U.S. 535 (1974). The key principle here is that tribes’ political status is the fundamental difference between Indian Nations and other groups of people within the United States, such as African Americans, as John Stossel suggested. This critical and unique distinction between tribes and other groups of people is a crucial factor that Mr. Stossel, and unfortunately most Americans, is missing.
Stossel’s commentary questioning the purpose of the Bureau of Indian Affairs (“BIA”) is ignorant of an important principle grounded in centuries of American history, custom, and law: Indian tribes have a historic and special relationship with the federal government. At its broadest, the special relationship between the tribes and the federal government includes the mixture of legal duties, moral obligations, understandings and expectancies that have arisen from over the course of over 235 years of dealings between the federal government and tribes. In its narrowest sense, the relationship approximates that of trustee and beneficiary, with the trustee (the United States) subject to a degree of legally enforceable responsibilities.
This special relationship exists due to the nature of the two assemblies being separate sovereigns, but with tribal sovereignty existing under the umbrella of federal sovereignty. This apparent hierarchy exists because the Supreme Court declared Indian Nations to be “domestic dependent nations,” with a relationship to the United States like that of a ward to a guardian. Cherokee Nation v. Georgia, 30 U.S. 1 (1831). Due to their nation status, the federal government and the states have been entering into legally enforceable contracts with tribes for centuries. These agreements have been and are still made with the understanding that tribes are separate political bodies. The American government has never acknowledged any other groups’ political power, sovereignty, or national presence within the United States.
While illustrative of tribal sovereignty and the trust relationship owed by the federal government, treaties have not always been positive agreements for American Indians. For the layman, treaties are much like contracts. Tribes put up substantial considerations for the services they are receiving now from the federal government. The loss of countless Indian lives, the unilateral taking of millions of acres of land, the willful degradation and attempted eradication of Indian cultures, and the stripping and taking of tribal natural resources and food were all actions taken by the U.S government to satisfy its greed and an equally greedy and fearful American populace. Nonetheless, these sacrifices were made in exchange for “considerations” that the tribes were to receive from the federal government, including federal oversight, assistance, and protection. While many of the treaties were drafted over two hundred years ago, the United States is still bound by its word, and as a result – much like a contract for services – the enforceability of treaties remains sound.
The primary instrument for carrying out the federal trust responsibility has been the Bureau of Indian Affairs, located for the past one hundred fifty years within the Department of the Interior. The Bureau has evolved into a complex bureaucracy of many thousands of employees, which includes twelve Area Offices and eighty-odd Agencies located on reservation lands. The most substantial activities of the Bureau today are education and the management of tribal resources, particularly lands. Examples of other activities are the administration of Bureau housing programs, building and maintenance of roads, licensing of Indian traders, provision of emergency relief, and the administration of various grant programs. The BIA’s initial paternalistic role is fading, and today the emphasis of federal policy is upon encouraging tribal self-determination, and the Bureau has certainly receded from monolithic control of tribal affairs. Additionally, many of the Bureau’s management functions have been contracted to the tribes under the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C.A. §450 et seq.
Stossel boldly, yet with tragic ignorance, argues for the Bureau’s abolition without any regard for the consequences. Many, like Stossel, may contemplate why the Bureau of Indian Affairs still exists if tribal self-determination is the goal. The answer is that the Bureau of Indian Affairs still exists because it was bargained for by the tribes. Countless treaties, executive orders, and agreements between tribes and the United States provided that the federal government would indefinitely be bound to a federal trust responsibility, which includes the administration of a number of programs for tribes. The BIA is seen as the embodiment of the federal trust responsibility. And while tribes may face difficulties with tribal autonomy and self-determination due to the existence of the Bureau, the suggestion of abolition inevitably encounters opposition from the tribes.
Tribes have structured their reservations, laws, and governments to account for the federal government oversight to which they acquiesced and the assistance for which they bargained. If the federal government simply abolished the BIA, as Stossel advocates, the federal government would breach one of its oldest and greatest responsibilities. An attempt to end the BIA is perceived as an attempt to do away with the trust relationship itself – in other words, to “terminate.” Termination is akin to genocide. Of course, this has already been tried in the history of federal-tribal relations. The experience of the tribes whose relationship with the federal government was terminated in the 1950’s was sufficiently dismal that any hint of the policy’s revival triggers instant opposition. Tribes would once again suffer greatly, and not because they are unable to survive without federal government assistance, but because they have rightfully relied on a partnership with the federal government for many years. With this partnership, tribes have chartered countless successful businesses, creating whole Indian economies, some of which have expanded into international markets. So while some tribes still need federal assistance and some do not, all are legally entitled to it.
Before John Stossel makes another bold statement regarding what he thinks about the BIA, he may want to first reference and understand centuries of American Indian history and law.