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Conference brands federal Indian law inherently 'racist'

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HELENA, Mont. ? Many federal laws governing American Indians are inherently racist, and they're perpetuated nearly every day by the country's court system.

That's the opinion of tribal attorney Andy Huff, who addressed more than 200 activists, educators, tribal leaders and state and federal employees at the recent Montana Conference on Race.

Huff, a staff attorney with the Helena-based Indian Law Resource Center, said that it's no secret that the foundations of modern-day Indian law were built on the belief that Native peoples were inferior to Europeans, and that they couldn't manage their own affairs. With notable exceptions, he said, that belief largely continues today, particularly in the legal arena.

Participants at the two-day conference at Carroll College were not just given a definition of racism but were asked to reveal their own prejudices and develop action plans to deal with them. Problems in each person's broader community were identified and targeted as well. The conference was sponsored by a long list of state agencies and nonprofit groups from around the region.

Huff, a member of Montana's Cree Tribe, traced the evolution of Indian policy from its colonial roots to today's often-conflicting quagmire of tribal case law.

When Europeans first "discovered" America, they established the so-called doctrine of discovery, he said. The doctrine spelled out the rights of newcomers to take over huge tracts of land that for generations had been controlled by indigenous peoples. This racist practice was further legitimized through the subsequent federal policy of manifest destiny, he said. Indian people still lost their land under the revised doctrine, but they retained certain legal rights, as well as reservations.

Part of the problem today, Huff said, is that most Americans are conveniently ignorant about the violent actions that were taken against Indian nations.

"We're talking about whole cultures that are gone now. This is what it took to found this nation," he said. "[Europeans] thought Indians didn't use the land right, so they were killed. I think that's the ugly truth behind the self-imposed ignorance today."

The federal paternalistic tradition is clearly being upheld in many modern-day legal decisions, he said, noting that in 29 Indian law rulings made by the U.S. Supreme Court in the past decade, only six cases were decided in favor of tribes.

"It's a scary, tenuous existence," he said, adding that the more power that is stripped away from tribes, the harder it is to operate even as quasi-sovereign governments. To work effectively, he said, tribal governments must be able to enact and enforce regulations and control their own destiny. They also retain the power to decide where reservation resources will be developed and who will benefit.

Huff stated that Congress can legally terminate a tribe or take away its lands at any time without compensation, and treaties can still be unilaterally terminated without any recourse. Those facts often surprise newcomers to the fray, but they are a bitter truth that tribes must face every single day, he said.

Battles over Indian religious rights, which conflict with industries that want natural resources on public lands, are also still raging. Because many Indian spiritual practices are tied to natural places, the conflicts often puts agencies such as the U.S. Forest Service, the National Park Service and the Bureau of Land Management directly at odds with tribes.

At the end of the 19th century, Huff said, U.S. tribes still held about 140 million acres of land. Today that figure stands at about 20 million acres. But tribes still don't have complete control over their land, in part because the federal government, saying it knew what was best for Indians, set up dual trust systems in the late 1800s to manage reservation mining, timber cutting, grazing and oil and gas leasing for allottees.

The shambles of the federal trust system for individual Indian account owners has been exposed through the class action lawsuit filed in 1996 by the Native American Rights Fund and lead plaintiff Elouise Cobell, who also spoke at the conference.

Cobell said that as a child she heard stories about other tribal members not being properly compensated for development on their allotments. When she became treasurer of the Blackfeet Tribe, she began asking questions when trust-fund accounting sheets didn't add up. When her questions weren't answered, she went to higher levels and asked again.

"I basically knocked on every single door in Washington, D.C.," Cobell said, adding that when she finally got a personal meeting set up with former U.S. Attorney General Janet Reno, she thought she'd get to the bottom of things. But when she showed up for the meeting, Cobell said, the only people there were federal attorneys who pooh-poohed the idea of reforming the trust system.

"I told them they should be ashamed," Cobell recounted. "I told them people are dying every single day in Indian country because they're not getting their resources."

Soon after, Cobell and others raised millions of dollars from private funders to get the case started. She thought the matter would be settled three years or less. Instead, the government has dug in, lied, withheld and destroyed documents, and spent $614 million on a new computer tracking system that doesn't work. Insiders who dare to speak out against the government's stance often face retaliation, she said.

"Anytime someone tries to tell the truth, their head gets chopped off," she said.

Cobell explained that 60 to 75 percent of individual Indian leases aren't even recorded in the government's books, which accounts for some of the billions of dollars that tribal members have been bilked out of.

"This is money that's tied to human beings," she said. "It's not Indians at the trough. It's the big oil and timber companies that are at the trough."

The trust fund case, she added, has more government lawyers fighting against individual Indians than were employed in the entire federal anti-trust case against Microsoft.

"You're one person," she told participants. "I'm one person. But look what I've been able to do. We can challenge racism in this country."

In Montana, conferees agreed, the greatest racial disputes center in Indian-non-Indian relations. Michael McCormick, who works with the Connecticut-based Study Circles Resource Center, told the gathering that confronting prejudice and resolving racism, wherever it resides, requires "listening with a beginner's mind."

"Wisdom resides in every sector of our community," McCormick said. "We don't need experts to solve our problems. We need each other."

The nonprofit center's model of conflict resolution is based on the Native American "talking circle," where members take turns expressing their viewpoints and the group often acts collectively to resolve an issue. McCormick and his colleagues bring the model, which demands inclusiveness and face-to-face dialogue, to distressed communities across the nation. The center, funded by the Topsfield Foundation, provides most of its services for free.

McCormick contends that the study circle model, if used diligently, can help lower tensions in almost any community. Essential keys to success, he said, include allowing every stakeholder a seat at the table, focusing on specific issues and not personalities, vowing to put commonality ahead of differences and developing a commitment among each of the parties to listen more than they talk.

Grace Sage, a Wisconsin Oneida who grew up on the Flathead Indian Reservation, now works in the Community Relations Service of the U.S. Department of Justice. Her job is to travel to racial hotspots around the country, quickly assess the conflict and help parties resolve their differences.

Sage told the group that there are two sure ways to fail in her profession: Ignore the cultural nuances of racial disputes or their historical underpinnings and you'll be heading back to the office empty-handed.

"It is important to hear what isn't being said, to listen to the quietest person in the audience," Sage explained.

"Sometimes we have to stop and ask, 'Why?'" Cobell added.