John Echohawk, executive director of the Native American Rights Fund, made an appearance at the National Indian Gaming Association’s Indian Gaming ’09 Trade Show and Convention in mid-April in Phoenix where Indian Country Today had an opportunity to interview him about recent legal issues.
Echohawk provided an update on three current U.S. Supreme Court decisions: Carcieri v. Salazar, in which the court ruled that the interior secretary could not take land into trust for tribes not “under federal jurisdiction” in 1934; State of Hawaii v. Office of Hawaiian Affairs, in which the court ruled that Congress’ Apology Resolution for overthrowing the Hawaiian monarchy in 1893 bears no moral, political or legal weight in stopping the state from selling 1.2 million acres of land seized during the illegal regime change before resolving land claims by Native Hawaiians; and United States v. Navajo Nation, in which the court ruled that the nation could not sue the federal government for breach of trust in the 1984 renegotiation of coal royalties with the Peabody Coal Company.
Indian Country Today: Let’s start with Carcieri.
Echohawk: The Supreme Court in that decision reversed 70 years of administrative interpretation of that language in the Indian Reorganization Act (1934) about who the government could take land into trust for. They interpreted the phrase “now under federal jurisdiction” to mean the time the act was passed in 1934; to be eligible you had to have been under federal jurisdiction in 1934. So that raised all kinds of questions about, well, who was and who wasn’t under federal jurisdiction in 1934?
In the Carcieri case they ruled the Narragansetts were not under federal jurisdiction in 1934. So who else might fit in that category too is kind of up in the air and some of the tribes that didn’t have their federal recognition in 1934 are worried that means them and that they won’t be able to take land into trust in the future, or if they’ve already had land into trust for them maybe that may be undone. It just creates all kinds of problems.
We’re continuing to work with all the tribes and their lawyers in trying to come up with legislative language for Congress to fix this problem, and that’s basically saying from now on, land could be taken into trust for any tribe that has federal recognition. For land that has already been taken into trust, those acquisitions are hereby ratified. So that would remove any potential for litigation over lands that we have taken into trust for tribes that were not under federal jurisdiction in 1934.
ICT: But are you also questioning what “under federal jurisdiction” means because in Connecticut there are five state-recognized tribes that were all on the 1934 list, but none were federally recognized at the time. All of them had land in trust under the state. Two have since become federally recognized and three aren’t recognized, but they still have reservation lands. So what happens to tribes like that? Were they “under federal jurisdiction” because they were on that 1934 list of tribes?
Echohawk: Yes, it opens up all those questions. I think we’d really rather not go there. We’d rather have a fix and have Congress say that this applies to all tribes and any transactions going back to 1934 where land was taken into trust is hereby ratified, so we just eliminate all those questions. If we’re not able to do that we’d have to rely on the interpretation of what that means.
But if we have to do that, we’d be arguing that since the federal government has exclusive authority over all Indians, all tribes under the Constitution, basically, that takes care of everything – if you’re a tribe then you’re under federal jurisdiction, any tribe, anywhere, is under federal jurisdiction. Period. And it’s not necessary to have that formal federal recognition. Of course, that’s part of the process you can go through that formalizes it, but still you’re under that jurisdiction and we’d argue for that broader interpretation. The states have no power or authority to deal with Indian tribes. It’s completely federal. So to us it means we’re under federal jurisdiction.
ICT: How does it relate to inherent sovereignty to have another sovereign come and say, “We now have this jurisdiction over you?” Is anyone challenging Congress’ claim to plenary power over the nations?
Echohawk: Yes, but of course under the law of this country, the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations and that’s just the way things are and you go to court and that’s what they’ll tell you. Tribes have been trying forever to get recognition internationally as international sovereigns, but that’s never happened.
ICT: Do you have hope that it will happen?
Echohawk: Well, that was kind of a bone of contention with the approval the United Nations gave to the Declaration on the Rights of Indigenous Peoples, about whether that gave us a right to international recognition as nations or not, and the way that’s been interpreted is that it doesn’t, but it forces nations to recognize that we have rights under international law short of being able to secede from a state and become a separate state.
That was the concern that was present in all of those discussions over the whole 30-year period to get that through and some indigenous peoples were not happy with that, but most of them thought that overall the recognition under international law that they got for indigenous rights was worth approval of the declaration.
ICT: And now you’re pursuing the American Declaration on the Rights of Indigenous Peoples (being drafted by the Organization of American States). Do you think it would provide more power, more leverage for the nations?
Echohawk: We’re hoping that it will reinforce the U.N. Declaration, maybe be a little stronger, maybe a little more specific as it would apply to the indigenous nations of the western hemisphere.
ICT: In the State of Hawaii v. the Office of Hawaiian Affairs, have you considered the nationalist position that Native Hawaiians never gave up their right to the land, and that the idea of ‘ceded lands’ is kind of a fiction. I wonder why American Indian nations don’t support that position. If the Akaka Bill goes through, those indigenous lands will be taken into trust by the federal government and that’s not always a positive situation for American Indians.
Echohawk: The amicus brief we filed in the case was filed late in the whole process. Of course, we coordinated all the briefing and everything was covered until right at the end when some of these right-wing groups filed friend-of-the-court briefs arguing that Congress didn’t have the authority to pass the Apology Resolution since there was no Native Hawaiian entity or sovereign nation, and that Native Hawaiians are a race, so Congress doesn’t have any authority to pass legislation that favors one race over another, but they can pass bills relating to tribes because tribes are sovereign nations. So that’s fine, but the Native Hawaiian nation doesn’t qualify for the same treatment.
ICT: But that’s demonstrably not true, because they were a sovereign nation state before the U.S.
Echohawk: That’s why we jumped in and filed that brief and said, wait a minute, there is a Native Hawaiian nation that does exist and Congress has this authority to set up this process to reconcile with the nation because they are a sovereign people. They may not have that recognition now, but they have the right to organize and petition and do that – that’s part of reconciliation and that’s where the Akaka Bill comes in.
More power to them if they can get that international recognition, but the experience of Indian nations here is that’s not going to happen in the foreseeable future.
ICT: So is there any fix for the Navajo decision?
Echohawk: I suppose Congress could consider some kind of fix to the Navajo case, some kind of reparation bill, a law that would recognize that what happened was wrong and the U.S. should be held liable. But we don’t represent the Navajos on that. We were involved through the Tribal Supreme Court Project with the NCAI, primarily on coordination.
ICT: What’s the best thing about your job?
Echohawk: I’ve been doing this for a long time and the reason is I feel very strongly about these issues, very dedicated to try to achieve justice for our people. Our track record shows over the years we’ve been able to do that a lot. We’ve basically got a whole country to cover that we feel a responsibility for and whatever those legal needs are, we’re probably going to be there because oftentimes if we’re not there nobody’s going to be there. So that’s our job and that’s what we do and it keeps me going.