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Gunn: When myth and justice collide

On Oct. 7, the United States Senate passed the Native American Apology Resolution. The Senate apologized to Native Americans for the “long history of official depredations and ill-conceived policies by the federal government regarding Indian tribes.” These depredations and policies included the “forced removal” of Indians from their homelands, “armed confrontations and massacres,” theft of Native lands and resources, and condemnation of Native “traditions, beliefs, and customs.”

It is now clearer than ever that federal legislation directed at Native Americans must be viewed through the lens of history – and with a mind toward the government’s continuing regret for its past, misguided policies.

Before Columbus, Indian tribes were independent nations, with vibrant cultures and flourishing communities. Columbus brought Native American gold back to Spain, yet the agricultural products of Native American farmers – corn, beans, squash, peppers, potatoes and tomatoes – were more important than gold in transforming European culture and fueling European population growth. Native Americans were not as fortunate. European settlers brought smallpox, cholera, and tuberculosis – illnesses that devastated Native American nations.

It is now clearer than ever that federal legislation directed at Native Americans must be viewed through the lens of history.

From the beginning, Native Americans exhibited hospitality towards the newcomers. Thanksgiving is one of our oldest American traditions. Yet, in succeeding generations, American demands for land brought conflict and warfare. This tradition is reflected in the Declaration of Independence, where Thomas Jefferson accused King George of fomenting frontier warfare by Native American nations against the nascent United States.

For his part, Jefferson maintained that Americans would be fair in dealing with Native American tribes and the earliest treaty, the 1778 Treaty with the Delaware Nation, seeks to allay Native American concerns that the United States wanted to steal Native American lands. The Northwest Ordinance of 1787 pledges that the United States will observe the “utmost good faith” towards Native American peoples, promising that “their liberty and property will never be invaded. …”

Nevertheless, history shows that the U.S. was determined to acquire Native American lands, whether by treaty or warfare, with or without the consent of Native American tribes. For the first 90 years of the nation’s history, the United States maintained at least the semblance of respect for Native American land rights through treaty making.

Yet, in the 1880s, the United States attempted to “civilize” Native Americans by allotting their lands and encouraging their assimilating into the mainstream economy and culture. While missionaries concentrated on converting Native Americas to Christianity, Western ranchers, miners and developers concentrated on seizing Native American lands. The Supreme Court put its legal stamp of approval on the land grab by postulating that the United States was acting in a trust capacity toward its Native wards when it sold their lands to whites.

President Franklin D. Roosevelt was determined to stop the injustice and help Indian tribes restore their communities.

From 1887 to 1934, Native American tribes lost 90 million acres of land to the so-called “allotment” policy, where tribal lands were parceled out to individual Native Americans, many of whom were defrauded or coerced into selling their lands. More tribal lands were sold (at rates far below market value) as so-called “surplus lands,” despite tribal objections. In 1928, the Merriam Report found that these policies had devastated Native American tribes, leaving them terribly impoverished after losing two-thirds of the acreage and 80 percent of the value of remaining Native American lands during those years.

Against this background, President Franklin D. Roosevelt was determined to stop the injustice and help Native American tribes restore their communities. The Indian Reorganization Act is the New Deal for Native Americans. The IRA encouraged Native American tribes to reorganize and revitalize tribal governments and to establish tribal development corporations to rebuild tribal economies. The IRA also provided for the reacquisition of land in federal trust status for Native Americans and tribes. Roosevelt recognized the tremendous loss of land that tribes had experienced was one of the root causes of the devastating poverty on reservations, and his administration intended to address the awful injustice done to Native Americans who were left landless. For 75 years, the secretary of the Interior used his authority to acquire land in trust for Native American tribes to help restore their land bases.

In Carcieri v. Salazar, the Supreme Court held that the secretary’s power to take land into trust for Native American tribes did not extend to tribes not under federal jurisdiction when the Indian Reorganization Act was enacted in 1934. Presumably, that includes tribes that were “state recognized” but not federally recognized. The Supreme Court’s decision was wrong – the IRA was not clearly limited and the Interior Department had used its authority under the IRA for 75 years. This long-standing usage should have been continued.

The Supreme Court’s decision was morally wrong. We know that all Native American tribes were here before the United States and had ample land for their people. Yet, through warfare and dispossession, the United States has left many tribes with little or no land at all. That truly shocks the conscience – Native peoples of the United States completely dispossessed.

S. 1703 is not about gaming. It’s about restoring tribal land bases so tribes can provide for their people.

Thankfully there is a clear avenue to correct the Supreme Court’s erroneous decision: A technical correction to IRA. Sen. Byron Dorgan, D-N.D., has introduced S. 1703 to extend the Interior secretary’s authority to acquire Native American lands for all tribes. This fulfills the promise of the Federally Recognized Indian Tribe List Act of 1994, where Congress promised not to disadvantage any tribe. The bill is a laudable measure and deserves the support of all Americans who support justice.

Regrettably, this important measure of justice has been caught up in misunderstanding by opponents of Indian gaming. The measure does not promote Indian gaming. Before any tribe can conduct gaming on off-reservation lands acquired after 1988, it must comply with Section 20 of the Indian Gaming Regulatory Act.

Section 20 sets forth a rigorous process that generally requires consultation with state and local governments and concurrence by the state governor in a determination by the secretary of the Interior that Native American gaming would benefit the Native American tribe without interfering with state or local communities. In short, opponents of Native American gaming have ample opportunity to prevent gaming on newly-acquired lands.

S. 1703 is not about gaming. It’s about restoring tribal land bases so tribes can provide for their people and address basic community needs, such as housing, economic development, and maintenance of traditional cultural practices.

For those who understand the history of the United States and support justice for Native peoples only one outcome is appropriate – passage of S. 1703 to ensure all tribes have at least some land.

Steven J. Gunn is a professor of law (adjunct) at Washington University in St. Louis School of Law, where he teaches courses on American Indian law and directs the American Indian Law Externship Program.