Threats to Meaningful Consultation in Indian Country Signal a New Termination Era

A Future of Uncertainty; Indian Country in the Trump Administration

There is no easy way to say what our future holds given the uncertain political climate.  Many days, the rhetoric of the President Elect harkened similar language to Hitler.  I looked up speeches to try and re-assure myself that what I was thinking was false and instead, confirmed similar wording between Trump and Hitler.  The news reported Al Gore recently met with Trump and his daughter Ivanka, which gave me some hope that perhaps what we heard in the campaigning was not going to be the substance of his policies.  Of course, today’s headlines state otherwise.  How can we prepare ourselves for this uncertain future when we have no real gauge of Trump’s policies?

As a historian of Native American and United States policy I often see the waves of progress and backlash in public policy toward “Indians.”  It takes more than this linear thinking though to prepare for the unknown future.  We can anticipate the prospects in looking through the prism of:  One, the past; two, current trends; and three, to our traditions of Elders, ceremonies, and prayers.  All three elements may paint the picture of our future and I believe that we are in a new era of post Self-Determination.  We will face challenges and severely hostile responses not experienced for many generations as backlash from the progress we have made.  I believe we will have more unrest and civil disobedience but that the new era will continue to bring indigenous people together in unity throughout the world.  Perhaps this is a surprise to some who are new to indigenous issues, but to those of us navigating between the political and traditional worlds of our tribal people, we have seen this coming.  This is the seventh generation, after all, which was prophesied to be the change.  Moreover, the threads of resistance were reignited in Idle No More, Standing Our Ground for Veronica Brown, and the Mni Wiconi, Water is Life, Water Protectors for Standing Rock and the other Lakota Sioux Nations.

Before I begin though, I would not feel right about this article in a December issue if I did not acknowledge those we have lost this year, particularly the youth in our communities to suicide.  We pray for the grieving families left with only questions of why.  May our hearts continue to be soft for the Murdered and Missing Indigenous women and girls.  Lastly, to the children who are gone from our communities due to forced adoptions, we will welcome you home when you find your way back.

As to our future, let us begin by examining indigenous history in the U.S.  In the college courses I teach, we look at the waves of 20^th century policy that affected indigenous worlds at the grassroots.  Beginning with the end of extermination in the 1890s, evidenced by Wounded Knee, the American public and policy makers were finally horrified with the extremism of “extermination;” and yes, it meant exactly that—to exterminate the unwanted elements in US society, Indians.  The Lake Mohonk Conference and anthropologists had what they deemed a better solution than outright mass murder.  In their determination public policy should instead “Kill the Indian, Save the Man.”  The members of the Lake Mohonk conference were equivalent to lobbyists in today’s society and resultantly won sway in Congress.  Member of the Conference, Senator Henry Dawes championed the Dawes in Severalty Act, thus beginning the official policy of “Assimilation.”  While the promise of a new day for Indian peoples began with good, if not misguided and intentions, there were some successes.  Early Indian Boarding schools, despite their severely abusive methods, taught actual academics the first fifteen years of the Assimilation policy.  However, with the waves of social Darwinism taking over the American public, racism extinguished any positive that could have been squeezed out.  This era devastated indigenous reservations throughout the country and turned indigenous resources over to swarthy businessmen and the state which usurped the indigenous resources of land, oil, and children.

An unexpected outcome came from the Assimilation era though with high proportions of Native Americans joining the forces of World War I.   The official count of young men extracted from local indigenous communities was 17,000, which was thirty percent of the total population.  This meant that the most able among our communities were given to the US and its allied forces.  These men did so willingly though knowing that they fought for their homelands, which included their families and people.  In addition to such staggeringly high numbers, the indigenous population in WW I were first to battle from beginning to end.  The U.S. used indigenous men as map makers, scouts, runners, and code talkers.  As a result of their valiancy, congress passed the Indian Citizenship Act of 1924 giving all American Indians official citizenship status.

After the war, a new era in Indian policy began to surface.  Although the threads of limited Self-Determination twine back to the Indian Defense Association, which coincided with the Lake Mohonk Conference of the 1890s, the fruits of the seeds of Self-Determination did not blossom until John Collier and the Indian Reorganization Act (IRA).  IRA was the first legislation that the indigenous peoples of America had a choice about whether to accept or not.  Yet, limited information was given to tribal nations and the members were expected to vote to accept the carbon copied constitutions and proposals for economic development.  Nonetheless, IRA was the first step towards giving land and resources back to tribal governments, albeit with the heavy hand of federal oversight.  In other words, tribal nations could reorganize only by the rules of the federal government.  This did not leave any room for each nation’s unique traditions in governance.

As the limited Self-Determination era matured so too did the coinciding policy of terminating the federal responsibility to the indigenous peoples in America.  By the 1950s, Congress passed the Termination Act as well as implemented another policy of removing indigenous peoples from their home communities and reservations.  Termination was lethal for tribal members and literally destroyed the tribal government and infrastructure.  That is what most people seem to miss today is how easily Congress could pass an act to destroy our governments and structures.  Up until the 1960s, Indian policy, particularly the regulations determining whether an individual was “competent” to manage her own affairs, were stifling and created the very dependency Congress was then trying to sever.  Competency was a remnant of the Dawes and Allotment Act proclaiming that anyone with a higher blood degrees was not capable of managing their own affairs.  These fuller blooded peoples therefore could not even sell a pig or get rid of bed bugs without permission from their local or federal Indian office.  Therefore, when Congress determined to sever this dependency, indigenous individuals were left without resources, guidance, or protections.  The states quickly usurped tribal nation’s resources after Congress terminated specific nations.  As to relocation, although voluntary, the inducements the Indian office used to sway indigenous peoples were full of misinformation and outright lies.  For instance, Wilma Mankiller relayed her experiences in her autobiography.  Her parents were promised jobs and good living conditions.  Yet, they found themselves in a poor, one-room apartment with little support, such as child care for both working parents.

In the 1970s, the era of Termination and Relocation lost momentum and the most promising wave of Self-Determination developed.  While President Nixon is known for Watergate in mainstream America, he championed and benefited the Self-Determination era.  His support of Indian legislation was only surpassed by the wave of civil rights that preceded his election.  The National Congress of American Indians, indigenous students, the Alcatraz occupation, and the American Indian Movement (AIM).  Each was a unique brand of civil activism.  Unfortunately, one of the major downfalls to the movements were the treatment of indigenous women, which tended to undermine the very goals of ending oppression.  The 1970s were nonetheless successful towards the implementation of the laws on record today.  The Indian Self-Determination and Education Assistance Act of 1975, the Indian Child Welfare Act (ICWA) and Religious Freedom in 1978, as well as numerous others.

The 1980s saw backlashes against Indian Self-Determination, hunting and fishing rights.  Even though Self-Determination was a republican ideal, many U.S. leaders in the Reagan years couched indigenous issues in dependency or welfare systems due to the fact that funding was designated to tribal nations in the form of grants and contracts.  The 1980s also began the first waves of Indian gaming.  Tribal nations were pigeon holed economically into particular niches of economic development.  Gaming was one of those niches that continues into the present day due to the taxation exception that Indian peoples do not pay taxes on tribal lands, which carries over to economic activities.  So successful were certain nations that today’s President Elect Donald Trump bitterly opposed Indian gaming. Regardless of the legislation actually carrying out treaty obligations, the American public of the era and the federal government was uneducated about what was promised via treaty to indigenous Americans: education, governance, social well-being, hunting and fishing rights, among others.  Yet, Self-Determination was so successful that the ideals of Self-Governance programming strengthened an architype, Self-Governance legislation.  Self-Governance was passed in the 1990s due to tribal leaders such Jamestown S’Klallam, W. “Ron” Allan, who pushed for tribal nations to take their treaty rights as an appropriation in one lump sum rather than a filter down process thorough the BIA via 638 contracts.  Perhaps it is too much of a leap to fully go back to traditional forms of government given the full 150 years between now and the way we originally governed ourselves, but Self-Governance is a start toward the federal government handing a loosely stamped approval of traditional tribal governments back to the nations.

In the late 1990s and through the millennium, the atmosphere leveled out.  Tribal nations and indigenous peoples of the US continued the paths they were on.  If a tribal nation was poor for instance, and said tribal nation could not gain a foothold in business, the nation continued to remain poor.  If a tribal nation was growing from gaming, such as the Florida Seminoles, said tribal nation continued to improve and acquire wealth.  The discrepancy between the tribal nations which accumulated wealth and those without is growing.  However, this is another subject and will be saved for another article.  Suffice to say, there was a certain amount of complacency that ran through Indian Country because indigenous rights on the surface seemed concrete.  There were no tangibly threats to the direction most tribal nations were headed.  In fact, more tribal members were concerned with the injustice of their tribal governments rather than the federal government.  This is a result of the Indian Reorganization Act of 1934, but most tribal members and leaders attempted to work the system to their advantage.  Few saw that the problem was the lack of separation of powers or that they were trying to conform to a non-traditional form of governance.

This complacency lasted until a few years ago when several triggers spurned the indigenous peoples of Canada and the US into action.  In late 2012 a movement in Canada changed the course of their country.  Partially inspired by the hunger strike of Attawapiskat Chief Theresa Spence and further by “flash mobs” of round dancing in malls and public areas across Canada and the US, Idle No More sought to end legislative abuses of indigenous treaty rights by the Stephen Harper and the Conservative federal government.  In the United States, a public hotly contested custody battle took an Indian Child Welfare Act (ICWA) case to the Supreme Court.  In the process a movement grew out of a Social Media site called Standing Our Ground for Veronica Brown.  Rallies were held across the US and Canada to uphold the ICWA.  Unfortunately, in a narrow vote, the SCOTUS gutted the law proclaiming that the existing Indian family did not exist and therefore the ICWA did not apply to the Cherokee Child in question was ultimately granted to the non-related pre-Adoptive Couple.  In an age where most child births take place outside of marriage, the ruling was a serious set-back.  The case was a huge victory for a multi-million dollar adoption industry who are now banned from other countries due to the abuses of taking children away from existing families.  While Canada’s Idle No More movement eventually ousted the conservative government in favor of allowing indigenous voices into federal governance, the US has largely recoiled to the 1950s ultra conservative tea party, who spear-headed the attack against ICWA.  Yet, these movements helped to plant the seeds of an even larger movement that occurred with Standing Rock against the Dakota Access Pipeline and Energy Transfer Partner.

Several laws can apply to DAPL.  The Winters Doctrine (1908) proclaims that water is an inherent right and that tribal nations have a right to enough water to sustain their society.   Additionally the Clean Water Act mandates that American citizens are entitled to sanitary drinking water.  If their drinking water is tainted by an oil spill, then that not only effects the Lakota people, but all the millions of people down the Missouri River.  Aside from the contaminated question, there is another law that requires any construction such as a pipeline, to consult with the tribal nations who may have historical artifacts in the area, Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. This consultation is not an option, it is federal law.  There are steps that companies can take to assure the consultation measures are taken and a letter sent to the nation or any arm of the nation is NOT sufficient to call it consultation.  Consultation is a sustained relationship dedicated to protecting a historical site.  In the case of Standing Rock, the Army Corps of Engineers appears to have ignored the wishes of the Sioux Tribes in approving the original easement through their property.  As a result, Energy Transfer Partners also ignored the Section 106 laws and destroyed sacred sites and a burial ground.  Any other federal law would come with serious consequences.  However, a rich oil company verses a poor reservation was hardly noticeable until the tribal government made a call to action.  This call was answered by thousands of people, from indigenous nations throughout the world.  By early December, thousands of US Veterans from all wars within the last 100 years self-deployed to Standing Rock as well.  The Veterans planned to act as a human shield for the water protectors who had withstood vicious dogs, mass arrests, strip searches, dog cages, and then water hoses in below freezing temps.  This is 2016, not 1950, but to break down the tactics, one finds the same exact inhumanity.  On December 5, the Army Corps of Engineers reversed their original decision on the easement due to the need for an Environmental Impact Study.

The National Environmental Policy Act, is likely the only law to hold any teeth against Energy Transfer Partners.  According to the former Assistant Secretary of Indian Affairs, Michael J. Anderson, the Army Corps of Engineers memo outlined Energy Transfer Partners failure to disclose three safety reports to Standing Rock.  These reports were marked “confidential” and the failure of disclosure nullifies the previous Environmental Assessment.  Anderson adds “that a court will likely block any effort to simply reinstate the earlier decision.”  As for President Elect Trump, Anderson stated, “he holds financial interest in the company.  Any of his involvement would be challenged.”  This is the only salvaging law of all of American Indian federal protections.  That means several things for the future, not just for DAPL, but for all other pipelines failing to follow the Section 106 laws.  Federal laws for historic preservation are not enough, the environmental studies are what will provide the most leverage against pipelines.

In consideration of the waves of positive legislation, followed by backlash, I believe we are in a backlash period as evidenced by the way corporations are attempting to trample American Indian laws and protections.  The Dawes and Severalty Act enabled businessmen to concoct ways to usurp indigenous resources, such as oil.  Phillips Petroleum, for instance, was founded from a Delaware Indian child’s allotment, Anna Anderson Davis.  Because she was full-blood, the courts appointed a guardian for her, Frank Phillips.  While Davis gained royalties, the Delaware gained nothing, and Phillips is one of the richest oil companies in the world. 

Trump’s election signals a serious threat to indigenous rights and laws if we are not careful.  If his stand against Indian Gaming is any indication of his policies, he could likely challenge these tax laws for which American Indians are exempt from on their own lands and all the accompanied gaming legislation protecting tribal nations.  This of course, does not mean Trump would succeed in this hypothetical situation, but it could mean challenges.

The same goes for the Indian Child Welfare Act (ICWA).  After a series of hearings across the country in 2015, the BIA instituted tougher regulations and enforcement of ICWA.  However, given the anti-ICWA atmosphere among the Adoption Proponents, including many decision-makers across the country, we can anticipate more challenges.  Since Veronica’s case, Washington D.C. based Lori Alvino McGill and the Goldwater Institute continue to press for complete dissolution of the law.  However, the law is being targeted for reasons beyond the illusion that it is a “race based” law as Goldwater claims.  Underlying these reasons are state versus federal rights and indigenous peoples are an extension of federal. There is a contingency in the Gaming industry who would like to do away with tribal nation’s legal right to determine their own membership.  The repetition in social media of “blood quantum” or “percent Indian,” is to minimize “Indianness” based on outsider’s definition of “race,” rather than a tribal definition of citizen or member.  Why is this important?  Because if this Gaming contingency can take away Tribal Self- Determination of members, then they can minimize their rights for competing against them in Gaming.

Climate change and resiliency goes hand in hand with environmental planning.  The grants for Climate Change Planning and resiliency have been awarded for 2017-18, but certainly a President who believes that climate change is a conspiracy will not prioritize this in his budget.  For Oklahoma, that means that the dances and ceremonies held during the summer months continue to be practiced in above 100 degree temps.  During the winter months, Elders go without heat because tribal governments will not be able to plan for mitigation of severe weather.  Drought through the plains states impact the economies of those Tribes in numerous ways.  In Alaska, the snow is melting and Natives who have built an entire economy and culture based on snow for thousands of years need to plan for the continued changes in their environment.  Same for Hawaiin Natives.  Rising oceans put the islands are risk and push for appropriate planning measures.  In this light, we can see that Climate Change for indigenous peoples is a matter of life and death because our people are often in the most extreme conditions.

Since last year, both the Native American Rights Fund (NARF) and National Congress of American Indians (NCAI) have discouraged taking cases to the SCOTUS.  NCAI could not be reached for comment on this article.  However, NARF issued a statement on its web site, “As Native people, we have been down this road before.  For over 500 years we have endured the invasion of our homelands, we have endured the horrific and failed termination, assimilation, and boarding school policies of the federal government,  and, in more recent times, we have fought past administrations’ attacks on Indian country and the environment and won.”  The times ahead may be wrought with challenges we have not seen in the last few generations, but NARF statement is very accurate.  In examining our histories and the current challenges in context of the waves of federal policy, we know we can rise to whatever the occasion calls for.  Standing Rock has taught us what we already knew, that we are stronger together and when we are unified under prayer and spiritual connections, we can overcome.