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Back To The Future: The GOP And Tribal Termination

In 1970, President Richard Nixon announced a new federal policy of “self-determination without termination,” recognizing the failures of the federal government in its historical attempts to assimilate Indians by destroying tribes. 

In 1975, the Senate unanimously approved the Indian Self-Determination and Education Assistance Act, and the House passed it with overwhelming support from both Republicans and Democrats. President Gerald Ford signed it into law.

In 1983, President Ronald Reagan promised to “pursue the policy of self-government for Indian tribes without threatening termination.” 

In 1994, and again in 2000, the Senate and House approved amendments to the 1975 law to make it easier for tribes to strengthen their control over federal programs and services intended for the benefit of tribal citizens.

There is and has been for at least 45 years broad agreement between Indian Country, most members of Congress, and Presidents of both parties, that the United States’ policy of self-determination not only works but also that it is the single most successful federal Indian policy in our history.

Now the heirs of Presidents Reagan, Ford and Nixon and every Congress for the last half century are threatening to ignore the legacy and the success of Indian self-determination, by pursuing new forms of tribal termination.

On April 22, 2015, the Republican-controlled House Natural Resource Subcommittee on Indian, Insular and Alaska Native Affairs, threw down the gauntlet by holding a meeting that the Subcommittee’s Chairman personally titled “The Obama Administration’s Part 83 Revisions and How They May Allow the Interior Department to Create Tribes, not Recognize Them.” 

At that hearing, a witness invited by the House Subcommittee testified that all tribes recognized by the U.S. Department of the Interior Secretary “should be stripped of federal recognition as their recognized status lack any legal merit.”

If that weren’t bad enough, House Subcommittee staff issued a Memorandum describing the Dawes/General Allotment Act as “humane.” The law that allowed the taking of 96 million acres of tribal trust land in the period between 1887 and 1934 and rendered generations of Indians homeless and landless was hardly humane.

“A mighty pulverizing engine,” as President Theodore Roosevelt accurately described the General Allotment Act in 1901, is more historically accurate; as is the fact that federal allotment policy was thoroughly repudiated, both by the Meriam Report in 1928 and by Congress in 1934 when it enacted the Indian Reorganization Act (IRA). 

The historical record is abundantly clear about the intent of the United States’ allotment laws and policies, and their epic failure. Senior staff of the Subcommittee on Indian, Insular and Alaska Native Affairs should be directed by a consensus of Subcommittee leadership to withdraw their falsely premised Memorandum.

Also in the April Subcommittee hearing, House Republicans asserted that the Interior Secretary lacks authority to take land into trust pursuant to the IRA. More specifically, the Subcommittee called into “question the validity of the trust status” of lands taken into trust by the Secretary prior to the U.S. Supreme Court’s Carcieri decision in 2009, for tribes affected by that ruling.

Subcommittee Chairman Don Young openly threatened to introduce legislation to amend Section 5 of the IRA, by which Congress delegated trust land acquisition power to the Interior Secretary over eighty years ago. If enacted, such an amendment would only make it harder, if not impossible, for all tribes to reacquire trust lands—including the lands Indians were “humanely” dispossessed of in the late 1800s and early 1900s.

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Meanwhile, Congress has not shied away from more benign opportunities to limit or eliminate the United States’ trust responsibilities to tribes. In 2012, both chambers of Congress—including the then rabid GOP-controlled House—unanimously passed the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act). The Act allows tribes to lease restricted lands for various purposes without approval of the Interior Secretary via the Bureau of Indian Affairs.

Although the HEARTH Act was supported by the Obama Administration and Indian Country, widespread Republican support for the law can be attributed to terminationist tendency. Professor Elizabeth Ann Kronk Warner explains that the passage of the Act “may be part of a larger trend, started in the United States Supreme Court and now being adopted by Congress, to explicitly limit the federal government’s liability to Indian country under the federal trust relationship.” Once the federal Indian trust relationship erodes, termination very well could follow.

Whether Republican terminationist thinking is overt, or subliminal, the GOP should pause to appreciate the overwhelming success of federal Indian self-determination policy, as compared to all of Congress’ previous failed efforts at tribal assimilation or termination. 

As the research of Harvard economists Jonathan Taylor and Dr. Joseph Kalt demonstrates, “prior to the present era of Indian self-determination, decades of distant decision making by federal and state authorities accountable to non-Indian constituents and masters had shown little discernable ability to break repeated patterns of poverty and social disarray.” 

Instead, tribal self-determination “can bring, and has brought, improvements in program efficiency, enterprise competency, and socioeconomic conditions.”

Yet it is also the dramatic rise of Indian self-determination on Capitol Hill that fuels Congressional terminationist inclination. That tribal insurgence especially threatens states like Alaska, and their little sibling counties and cities, according to Drs. Stephen Cornell and Kalt, who five years ago predicted that “Republican control of the U.S. Congress will signal an end to policies of self-determination.” 

As Drs. Cornell and Kalt see things, the “evolution of the Republican Party away from its libertarian strains and toward more aggressive support for social policy-making aimed at promoting particular conservative social norms and structures is suggesting a trend away from the Indian self-government movement.”

There is little doubt that any election of a GOP President in 2016 would accelerate the terminationist trend. Another testy exchange this past spring before the House Subcommittee on Indian, Insular and Alaska Native Affairs illustrates why.

On May 15, Assistant Secretary of Indian Affairs Kevin Washburn bravely accused the Subcommittee of launching a “broad attack against Indian Country by attempting to amend the Indian Reorganization Act of 1934.” That was in reaction to the bizarre happenings at the April Subcommittee hearing, but Assistant Secretary Washburn did not stop there; he pointedly told the Subcommittee: “If you take this path against the people of Indian Country, the Obama Administration will be standing shoulder to shoulder with tribes as they fight you on this.”

The Assistant Secretary of Indian Affairs cannot make the same powerful promise if a Republican wins the White House next year. Case in point: Republican presidential hopeful Senator Rand Paul, who just last week commented that Indians “don’t do very well because there’s been a lack of assimilation.” 

If the Congress and White House align Republican in 2016, Indian Country will be hard pressed to stop any GOP enactment or re-enactment of draconian Indian policies. While the Indian gaming lobby in particular is powerful, it contributes a tiny fraction of spending inside the Beltway—nowhere near enough to stop any motivated GOP neo-terminationists.

Indian Country, we must brace ourselves for a ride in the termination time machine.

Gabriel S. Galanda practices law in Seattle with Galanda Broadman, PLLC, representing American Indian interests. Gabe belongs to the Round Valley Indian Tribes.