PART I
Throughout its relatively short history, the United States has been known as the "melting pot" because its citizens come from so many different cultures. In fact, many believe that one of the greatest attributes of America is the fact that people from so many diverse cultures have come together to live in a constitutional republic.
The basis of that republic is the principle that all persons are created equal. Each person has the inalienable right to life, liberty, and the pursuit of happiness. The government of the United States was created by men to secure these rights.
For hundreds of thousands of American citizens though, the government has failed to meet its responsibilities. While all Americans are impacted directly or indirectly by this failure, there are two groups of citizens who are severely affected: those of Indian descent, and the non-Indians who live within the boundaries of Indian reservations.
Most people are not aware of the government actions which have led to the current unacceptable state of affairs. A complete explanation of all the failures and misguided practices which got us here would require volumes.
This essay seeks to explain briefly the history of America's Indian policies and describe the devastating effects those policies have had on both Indians and non-Indians. The intent is to present the facts in such a way that reasonable men and women who care about life, liberty, and happiness in America will take action. We want those people to add their voices to the chorus that needs to be heard again. The chorus which proclaims that America really is "one nation, under God, indivisible, with liberty and justice for all!"
"Right now, Indian tribes are sovereign, you and I know that, but their official relationship is with an assistant secretary for the Department of Interior. This is a strange kind of sovereignty, it seems to me." --- Senator Daniel Inouye
Sovereign States, Sovereign Tribes
The European settlers who colonized America considered Indian tribes
to be similar to foreign nations, but with a significant difference that will be discussed
later. While the various tribes and bands were assumed by the colonists to be largely
independent or "sovereign," not all tribes had formal or stable systems of
government.
The founding fathers recognized that coexistence with Indians would be
difficult if each state was allowed to negotiate treaties or trade agreements
independently. One of the limited functions of the newly created federal legislature was
to "regulate Commerce with foreign Nations, and among the several States, and with
the Indian Tribes;" (The Constitution of the United States, Article I, Section 8).
As America grew, greater contact between settlers and Indians became
inevitable. For the most part during this period, trade and other contacts between U.S.
citizens and Indian tribes were restricted in an effort to reduce conflicts between
members of differing cultures and jurisdictions. Generally, treaties and agreements were
negotiated to resolve problems which arose. In some cases, violence and confrontation
occurred as more people occupied lands once the sole domain of Indian tribes.
Conquered Nations and Reservations
Towards the end of the nineteenth century, following decades of
westward expansion, the United States had signed treaties with tribes or conquered those
that resisted encroachment into their homelands. In exchange for large tracts of land and
natural resources, the government agreed to provide land that would be off-limits to new
settlements.
The "reservations" were created by the federal government to
segregate Indians from the general population to prevent further conflicts. The lands were
set aside by the federal government for the benefit of Indian people.
Most Indians naturally disliked reservation life. Having been
overwhelmed by the non-Indian culture, or defeated militarily, they were now confined to
reservations and forced to adapt to a lifestyle very different from that to which they
were accustomed.
As a part of many treaties, the government also agreed to provide food,
health care, and other benefits for certain periods of time until the Indians were capable
of sustaining themselves.
The Assimilation Era
Relatively soon, it became clear that a change in the relationship
of Indians and non-Indians was necessary for the benefit of both. After years of study and
debate, the Dawes Act was enacted in 1887 to formally change basic federal Indian policy
from one of segregation to one of assimilation. [Relevant excerpts from the Dawes Act, and
the Burke Act that amended it, appear in Appendix A.]
During the late 1800's and early 1900's the program of assimilating
Indians into American society was actively pursued. Indians were considered wards of the
federal government, and the job of the Indian Agents who managed the reservations for the
Bureau of Indian Affairs (BIA) was to protect and provide for Indians only until they
could be successfully assimilated into American society.
Authority over individual Indians transferred from the tribe to the
BIA. The long term plan was to withdraw BIA authority and transition those individuals to
the status of United States citizens with full and equal citizenship rights and
responsibilities at both the federal and state level.
"Members of Congress voting on the surplus land Acts believed to a man that within a short time -- within a generation at most -- the Indian tribes would enter traditional American society and the reservation system would cease to exist." --- from a 1984 U.S. Supreme Court ruling
The Transition to Citizenship
Under the Dawes Act, reservation land was parceled out (allotted) to
individual Indians and held in trust for them by the federal government for a period not
intended to exceed 25 years. With the permission of the tribes, excess unallotted
reservation land was sold. Indians were to be under the "exclusive jurisdiction of
the United States" (Burke Act, - see Appendix A)as long as their land was held in
trust, then they were to become citizens, subject to the laws of the state. At that point,
any vestige of tribal governmental authority was expected to end.
Upon termination of the trust status of Indian lands, direct
jurisdiction of the federal government over Indians would have ceased and the BIA would
have been abolished. The legislative history recorded in the Congressional Record makes it
clear that Congress, by passing the Dawes Act, intended to end the segregation and
dependent status of Indians: "by the bill we proposed to break up the
reservations.". Without tribal governments and the reservation system, treaties would
cease to have any legal validity.
In the late 1800's, this policy was considered to be very beneficial
for Indian people. Families received a parcel of land and a proportionate share of the
money received from the sale of unallotted lands. Considering their history of dealing
with one another, most Indians considered this solution very generous at the time. Most of
the world still envies the advantages of American citizenship.
Integration of homesteaders into areas formerly reserved only for
Indians was expected to help Indians assimilate into American society. Further, as
homesteaders developed farms, ranches, businesses, roads, towns, municipal governments,
and associated services in the newly opened areas, the value of the remaining Indian-owned
land increased dramatically.
Speaking of this policy, the Congressional Record has this account:
"It has the warm endorsement and approval of the Secretary of the Interior, of the Commissioner of Indian affairs, and of all those who have given attention to the subject of education . . . and the development of the Indian race. . . . The bill provides for the breaking up, as rapidly as possible, of all tribal organizations and for the allotment of lands to the Indians in severalty, in order that they may possess them individually and proceed to qualify themselves for the duties and responsibilities of citizenship. . . . It meets the warm approval of all the Government officers whose duties bring them in close contact with the Indians, and it has also the endorsement of the Indian rights associations throughout the country, and of the best sentiment of the land."
Immigrants from all over the world had successfully assimilated into American society
with little or no government help. Congress obviously intended that Indians would also
become citizens of the United States indistinguishable from any other citizens.
During the period from 1887 to 1934, at the invitation of the federal
government and with the concurrence of tribes, thousands of non-Indians purchased
reservation land that was opened for settlement. The influx of non-Indian people naturally
led to the development and expansion of local, county, and state governments that were
expected to provide for the needs of all residents, Indian and non-Indian alike.
Although the anticipated benefits of the Dawes Act turned out to be
inflated, these were the expectations, promises and laws in effect when hundreds of
thousands of non-Indians moved to reservation areas nationwide.
They reasonably expected an end to tribal government, the BIA and the
entire reservation system. After 25 years, they expected Indians and their land to
contribute tax support to schools, counties, and states. Never in their wildest
imagination did they expect that they, or their descendants, would ever be subject to
tribal taxation, licensing and regulation.
"I believe that for the past twenty years there has been a creeping socialism spreading in the United States." --- President Dwight D. Eisenhower, in a speech to Republican leaders, Custer State Park, SD, June 11, 1953
Betrayal of the Homesteaders
Multiple forces combined to destroy the process of assimilation
initiated by the Dawes Act. Officials of the BIA and tribal governments concluded it was
not in their best interest for either of those institutions to cease to exist. Tribal
members also had an incentive to avoid taxes on their land. These and other forces, such
as the Great Depression, combined to obstruct the plan to phase out the reservation
system.
In 1934 the entire process was reversed when Congress, at the urging of
a socialist bureaucrat who was in charge of the BIA, abandoned the policy designed to
assimilate Indian people into American society. In doing so, Congress created permanent
problems for hundreds of thousands of reservation residents.
The Indian Reorganization Act of 1934 created reservation political and
economic systems that remain to this day. The legislation was devised and promoted by John
Collier, the Commissioner of Indian Affairs at the time, as a grand social-political
experiment.
In his book, From Every Zenith, published in 1963, Collier praised an
idealized version of communism in Red China. Collier and others expected reservations to
become "a model of community that all Americans might in some ways follow. . .
because he wanted Indians to offer an alternate way of living for individualistic-oriented
white America" (Sovereign Nations or Reservations - p. 139) Along with similar
experiments elsewhere, they have become models, but not exactly as Collier envisioned.
Congress approved much of Collier's scheme and legislated the
reinstitution of tribal authority. Tribes were allowed to establish governmental functions
over Indians that voluntarily chose to be part of the tribal system.
"Un-American" Tribal Governments
For several reasons, Congress did not require tribes to provide
tribal members with the full protection of the U.S. Constitution. Congress also allowed
(and still does allow) tribes and the BIA to discriminate in favor of tribal members.
Unfortunately, they either overlooked or ignored other potential
problems in the political structure they approved for Indian tribes. The "separation
of powers," which is a hallmark of American government designed to protect citizens
from government abuse, was not required for Indian tribes and, in most cases, does not
exist to this day.
Most tribes have concentrated almost unrestricted governmental power in
the tribal chairman and tribal councils. Individuals who serve in these offices have very
little effective restraint on their use of arbitrary power. In relatively few cases do
tribes even have a judicial system, and in most of those, judges serve at the pleasure of
the chairman and council.
American Law or Indian Law?
The abrupt change in federal policy in 1934 also created a legal
morass by authorizing the existence of two governmental systems, state and tribal, with
completely different legislative, administrative, enforcement, and judicial systems in the
same geographical area.
Conflicting rules and jurisdictions have resulted in confusion,
frustration, antagonism, and litigation that severely reduces the quality of life, the
potential for economic development, and the prospect for social harmony on reservations.
"The Navajo Nation currently enjoys the status of semi-sovereign nation. In spite of all the limitations on our sovereign status, a semi-sovereign nation status is a step higher than a state sovereign status." --- Navajo President Albert Hale
If It's Tuesday, We Must be Sovereign
The transition from foreign nations, to wards of the federal
government, to individual citizenship was originally intended to be accomplished in three
separate and distinct stages. In reality, however, characteristics of each stage carried
over into the following stage. For example, the reservation system and trust lands were
not terminated as tribal members became citizens.
As a result, most Indians usually claim the benefits associated with
each stage. Under their "sovereign nation" status, tribes claim immunity from
lawsuits and jurisdiction over all persons and property within their reservation. They
file lawsuits in federal court demanding the enforcement of carefully selected provisions
of favored treaties.
The federal government verbally supports this notion of sovereignty by
proclaiming that it must deal with Indian tribes on a "nation to nation" basis.
Tribal leaders are invited to the White House en masse. Senate leaders call for the
creation of an ambassadorship for Indians. The Environmental Protection Agency allows
tribes to be "treated as states" for purposes of establishing their own
environmental standards. Tribes claim the "sovereign" right to conduct casino
gambling even in states where such gambling is illegal for every other citizen.
If It's Wednesday, We Must Be Wards
Under their "wards of the federal government" status,
tribes claim the right to government-provided welfare programs, health care, asset
management, and legal assistance.
The federal government also actively supports this notion. Almost every
agency of the executive branch has special programs dedicated to serving only Indian
tribes or individuals. The BIA in particular is a bloated, inept bureaucracy whose sole
mission is to act as trustee for Indians. The fact that it cannot account for $2.4 billion
in trust funds has not caused tribes to insist that the BIA be abolish-ed. Tribes
obviously stand to lose more than that if they demand an end to their trust status.
When Congress considered substantial cuts in BIA funding in 1995,
hundreds of Indian leaders flew to Washington to protest. They argued the cuts would have
been a violation of treaties as well as the government's trust responsibility to Indian
tribes.
If It's Thursday, We Must Be Americans
Under their "individual citizen" status, members of
federally recognized tribes claim all the rights of citizenship and more. They claim, and
fully exercise, the right to vote in local, state, and federal elections. They serve on
county commissions, in state legislatures, and even in the U.S. Senate.
They are classified as members of a "racial minority,"
eligible for any number of hiring, contracting, and admissions preferences. They apply for
and receive benefits from county, state and federal programs. They file suit to guarantee
"appropriate" representation on school boards and in state legislatures.
Special Treatment by Congress
In a country where "all men are created equal," Indians
apparently are "more equal" and merit special consideration.
The federal government has established a special committee on Indian
affairs in the U.S. Senate and a special bureau, the BIA, to handle Indian affairs in the
Department of the Interior. The executive branch has created separate ("but
equal?") programs in the Departments of Agriculture, Housing and Urban Development,
Health and Human Services, Justice, Education, Veterans Affairs, and Commerce and the EPA.
Special legislation dedicated to, among other things, Indian Religious
Freedom, Indian Gaming, Indian Civil Rights, Indian Housing, Indian Justice, and Indian
Health has been approved and funded by Congress. And all this for "sovereign"
(independent) nations?
One would think that all these special advantages would greatly benefit
Indians, but do they? If so, why aren't Indian reservations models of prosperity and
social achievement? Economist Thomas Sowell has studied preferential social policies all
over the world and concluded that they almost always harm the very people they were
designed to help.
"There have been allegations in the past few years of theft, fraud and other forms of terrible mismanagement by the Standing Rock Tribal Council. Since we live under this monarchy government, the ruling tribal council is immune from prosecution by the constituents it was designed to serve. . . . We have on our tribal council and BIA staff, people who thumb their noses at justice."
--- Joseph Walker, Daniel Defender, Reginald Bird Horse, and Phyllis Wilcox, Lakota/Dakota Advocates for Human and Civil Rights
No Checks, No Balances
With access to largely unchecked power, communal resources, and
millions of dollars in federal aid, corruption among tribal councils is both common and
inevitable. This power and these resources are not only used for personal gain, but also
to reward or intimidate others. Winners of political elections reward themselves and their
allies while simultaneously thwarting potential opponents. Federal resources intended for
the benefit of the general Indian populace often end up as the personal assets of tribal
leaders and administrators.
Charges of election fraud are rampant in Indian country, but most cases
are never adequately investigated, much less prosecuted. Indian judges courageous enough
to rule against a tribal chairman or council are usually summarily fired, as are editors
of tribally-owned newspapers who dare to speak out against a particular action or policy.
The frequency of corruption has increased significantly since the
introduction of casino gambling to reservations. In Minnesota alone, six leaders from the
two largest bands of Chippewa Indians have been convicted of multiple felonies - including
theft, fraud, kickbacks, swindle and vote rigging - and are now serving or have served
time in federal prisons.
Included in this group of convicted and incarcerated criminals is the
former head of the Minnesota Indian Gaming Commission, who served time in Leavenworth
Prison; a former state senator; and a man who was the long time Chair of the Minnesota
Chippewa Tribe and Chair of the Minnesota Indian Affairs Council, who had also received a
Presidential appointment to advise the federal government on reorganizing the BIA.
Other recent cases of corruption involve embezzlement from federal
housing programs, the sale of surplus government equipment by individuals,
"ghost" employees on federal or tribal payrolls, bribery, and kickbacks.
All of the people in these situations created systems for cheating and
stealing from their own people. There is a systemic lack of accountability in tribal
governments, leaving Indian people without the means to reign in their own tribal leaders.
Instead they must rely on sporadic federal intervention.
Welfare Dependency: A Bitter Legacy
Welfare dependency on reservations dates back to the late 1800's.
Indians often were forced onto reservations away from their customary homelands after
having been overwhelmed or conquered militarily. Many lost their established means of
self-sufficiency, making them dependent on the federal government for basic necessities.
Many treaties transferred land and resources from tribes to the United
States in exchange for government aid. Neither the government nor the tribes understood
the dangers of a dependency that has become endemic on most Indian reservations, a
dependency that is especially encouraged by the trustee-ward relationship between the
federal government and tribes.
Several years ago Fen Montaigne of the Philadelphia Inquirer described
life on the Standing Rock Indian Reservation in South Dakota. Unfortunately, Montaigne's
description fits too many reservations in this country:
"That Standing Rock has become a breeding ground of sorrow is beyond dispute:
Traditional Sioux culture has been shattered, the economy is a shambles, welfare is king,
alcoholism is rampant. More than $200 million in federal funds has been spent here in the
last quarter-century, yet the reservation remains an economic wasteland. Not one sizable
Indian business or industry exists. Three quarters of the adult population is unemployed.
The two counties that make up Standing Rock are among the 25 poorest in the United States.
. . .
"To make sense of George Bald Eagle's life, it is necessary to
understand one basic truth: The federal government has conquered the Indians of Standing
Rock twice - first with its cavalry, then with its largesse. Increasingly, the dominant
culture here is welfare, not Sioux.
"From the provision of bacon, blankets, farm implements and cattle
promised in the 19th century treaties, the reservation system has blossomed on Standing
Rock and elsewhere into an elaborate welfare state. Special Indian programs provide food,
health care, education, scholarships, housing, welfare for able-bodied men, fuel
assistance, burial insurance and other benefits. Often the aid is inadequate, the care
substandard. But the coverage is cradle-to-grave, and it is possible for many tribal
members to get by without lifting a finger. . . .
"The tribe's leaders - now the dominant force on Standing Rock -
are failing the people as badly as the federal government has. And many Indians, withered
by the pervasive welfare system, are failing each other."
Americans generally recognize how damaging generations of welfare have been to residents of our inner cities. Few have a similar appreciation for a much more chronic welfare dependency that has decimated Indian reservations. Traditional culture, families, and a work ethic have been destroyed and young people are too often raised without successful role models or positive incentives. Reservation political, economic and welfare systems combine to create feelings of helplessness and hopelessness that lead to other problems such as drug and alcohol abuse. Could people of any culture prosper under such oppressive systems?
The Reservation: Home of a Failed Socialist Political and Economic System
Communal land ownership and federal trust restrictions on land
ownership and use inhibit economic development in a number of ways. They make it
difficult, if not impossible, to put together efficiently manageable land units for
agricultural purposes. The protection from encumbrances on trust land hinders its use as
collateral for operating loans, reducing the capital that is available to Indian
agricultural operators.
Through BIA controlled inheritances, most land allotted to individual
Indians is now owned outright by the tribe or collectively by groups of individuals. The
multiple ownership of land increases the difficulties of effectively managing the land
while simultaneously reducing the benefit to any individual who makes the effort.
Terry Anderson and Dean Lueck, in their book Property Rights and Indian
Economies argue that multiple ownership, the trust status, and management by the BIA of
allotted and tribal land would be expected to reduce its productivity. They tested their
theory and concluded "that the value of output per acre for individual[allotted
trust] and tribal trust land will be 46 percent and 81 percent less, respectively, than
for fee simple [deeded] land."
These results should not be surprising. Tribal governments and their
asset management practices are often similar in many ways to the systems that devastated
the economies of communist-controlled eastern Europe. As noted earlier in the discussion
of John Collier, this similarity to eastern Europe is neither accidental, nor is it based
on early tribal traditions.
Legal Conflict and Confusion Hinder Economic Development
Economic advancement on reservations is hindered by the flawed
federal policies that have created an unworkable and adversarial legal environment on
Indian reservations.
Two governmental systems (state and tribal) with different laws and
courts and confusing areas of jurisdiction are only part of the problem associated with
the unique legal framework on reservations. Since to some extent, each tribe is its own
separate governmental entity, potential investors and residents are confronted with
problems similar to those they might face in a small Third World country.
Contracts with tribes or Indians on reservations generally can only be
enforced by the tribe itself. The risks associated with taxes, licensing, and regulatory
issues are an added burden to businesses which combine to significantly reduce the amount
of investment and economic activity that occurs on reservations.
The situation is exacerbated by the fact that when conflicts do arise,
the government of the United States generally sides with tribal governments, claiming that
its status as trustee for Indian tribes requires it to protect their interests. Legal
issues discourage non-Indian companies from building facilities on reservations. Very few
businesses are willing to risk legal entanglements with tribes, especially when all the
resources of the federal government can be brought to bear on the tribe's behalf.
Overwhelming Obstacles to Indian Economic Development
People concerned about the quality of life on Indian reservations
wonder why reservations are so poorly developed economically and socially. Some legitimate
questions are: "Why, considering the multitude of special benefits available to
Indian tribes, and the billions of federal tax dollars appropriated for their benefit on
an annual basis, is there so little to show for it? Why do reservation Indians suffer such
perpetual unemployment, poverty and hopelessness?"
The answers to these questions have apparently eluded federal policy
makers who generally refuse to take a hard look at the issues. In reality, most of the
problems are not only understandable, they are predictable once the underlying policies
that affect life on reservations are understood.
The lack of economic and social development on reservations can be
attributed to several critical factors. One major impediment is the governmental
structure, which is devoid of the "checks and balances" normally found in
democracies. A second is a well established and pervasive welfare system on reservations
that harbors the same kinds of problems seen in America's inner cities - low self esteem,
poor education, health problems, crime, and corruption. The third obstacle is the communal
ownership of property, managed and controlled by tribal governments and the BIA, a system
that has many similarities to those found in the former communist countries of eastern
Europe. Fourth, tribal claims of sovereign status create unique and confusing legal
jurisdictions on reservations that inhibit economic prosperity and social harmony. Fifth,
the federal government's ambiguous, changing and often, contradictory, positions regarding
tribal sovereignty only add to the confusion and dysfunctional state of affairs.
Is it any wonder that legitimate efforts to promote economic
development and higher standards of living have historically failed when faced with such
obstacles? Any one of these problems would be a serious handicap for a rural community to
overcome. Together, they are devastating.
The federal government spends over $4.7 billion annually, primarily on
behalf of the 437,358 Indians that live on reservations. This is more than $10,000 per
person or $40,000 for a family of four. Furthermore, these figures do not include
significant state, local, and private assistance.
And what does the American taxpayer get in return for this exorbitant
annual expenditure? Social and economic devastation on reservations, disharmony,
litigation, and political rhetoric. Indians are the most seriously affected, but everyone
living on or near a reservation is also adversely impacted.