In a quiet but constant struggle for tribal survival, some of Indian country’s best minds are working out new ways of explaining what we all believe about self-government and self-preservation to an often uncomprehending dominant society. The quest for what the academics call a “new paradigm,” a new set of assumptions about the tribal role in the U.S. federal system, has reached the point where it deserves far wider discussion both within and outside of Indian country.
This intellectual effort has been necessary because so much of the mainstream imagery has lagged far behind the reality of tribal government. (The mindset at the Supreme Court has been time-traveling backward.) The dominant society has yet fully to appreciate the dramatic success of federal government support for self-determination, the official policy dating to the Nixon administration. Encouraged by effective Indian lobbying, Congress has embedded this policy in a range of laws, more or less under the mass media radar. One sign of the results showed up in a Sept. 20 Senate Indian Affairs Committee hearing.
Federal “outsourcing” of services to tribes has increased tenfold since 1991, reported George Tallchief Skibine, the Interior Department’s acting deputy assistant secretary of Indian Affairs for Policy and Economic Development. In that year, the first for the test program, seven tribes negotiated $27 million in funding agreements to provide services formerly handled by the BIA bureaucracy. In 2006, 231 tribes are receiving services through 91 funding agreements, totaling around $300 million. This is less than half of the nation’s federally recognized tribes, and Skibine said he expected the number would increase once some administrative issues were resolved. The Office of Self-Governance supervises the BIA contracts, and other agencies are following suit. “Tribal self-governance is a framework for progress,” Skibine said, “because it empowers tribes to prioritize their needs and plan their futures at their own pace, consistent with their own distinct cultures, traditions and institutions.”
But the reality of self-governance goes beyond the handing over of federal money. Some tribes, although still a comparative handful, have developed the resources to fund their own services. Many more have shown skill and ingenuity in devising new programs. The Harvard Project on American Indian Economic Development has no trouble each year in finding exemplary tribal programs for its Honoring Nations awards. (It will be holding this year’s daylong presentation of “tribal governance success stories” on Oct. 3 in Sacramento, Calif. The honorees range from the Tulalip Tribal Court alternate sentencing program to the Winnebago Tribe of Nebraska’s community development fund.) The vibrancy of tribal government is forcing an evolution of thinking about the role of tribes in the U.S. federal system.
The search for a new structure is running four-square against a generation of reactionary Supreme Court decisions. Justice William Rehnquist provided the classic example in his 1978 Oliphant v. Suquamish Indian Tribe decision. He responded to a tribal assertion of police jurisdiction by inventing a doctrine to whittle away at tribal sovereignty. Since the United States had “incorporated” tribes under its own territorial sovereignty, it must have intended to reduce any aspect of their inherent sovereignty that caused inconvenience to itself or, in a bolder leap, to the states. The main source of this doctrine was Rehnquist’s own imagination. It’s often been noted that the court ever since was increasingly hostile to tribal rights. But the other side of the story is that tribes have been increasingly assertive about their rights. Their capacity to manage themselves and their territory has been bucking and straining against the court’s antiquated, if not totally discredited, intellectual framework.
The problem has been succinctly defined by, among others, Alex Tallchief Skibine, the S.J. Quinney professor of law at the University of Utah (and George’s twin brother). The court, says Skibine, is frozen in a notion of the American federal system that allows only for the national government and the states. Thanks in large part to Rehnquist, it has seen tribes as wards of the federal government, subject to the plenary power of Congress. Skibine and a growing number of scholars say that it is time to recognize that the federal system has three parts, including states and tribes as co-equal sovereigns.
“Tri-federalism,” a term apparently coined by Carol Tebben, director of legal studies at the University of Wisconsin, Parkside, offers a promising new way of thinking: a “new paradigm,” if you will. Over the past few years, it has inspired a series of lengthy law review articles and a lively debate about putting it into effect. It might seem at first glance that the term merely describes an existing state of affairs. But the Supreme Court has offered a constant warning that if you don’t describe your rights properly, you run the risk of losing them. As an intellectual framework, it emphasizes that states and tribes have equal and parallel status, and repudiates the tendency to “municipalize” tribal governments, to treat them as appendages of the states.
There are many ins and outs to this framework. Some scholars whom we respect might object that it is still too much of a compromise with a colonial power. They reject the claim that tribes have been “incorporated” in the United States (The word “incorporation,” it appears, is one of those terms of art, implying a sacrifice of sovereignty).
Others worry that there is no explicit language in the Constitution setting up a tri-federal system. Professor Frank Pommersheim, of the University of South Dakota School of Law, has even advocated a constitutional amendment to recognize tribal sovereignty. Daunted by that task and its grave pitfalls, Alex Tallchief Skibine is suggesting congressional legislation instead. He offered the analogy of the act extending commonwealth status to Puerto Rico. He called this paradigm “incorporation by consent.” Through one mechanism or another, the tribal relation to the federal government would never again be that of ward to guardian but instead would be a compact of mutual consent.
We ourselves would be cautious about seeking a formal revision of the political system. Either route offers too many openings for detours or ambush. The better course for now would be to continue and expand the discussion, bringing these ideas and critiques forward out of the law journals. We offer our own pages as a forum. At the same time, the tribes will continue to make facts on the ground, exercising their governance and strengthening their institutions. As we press forward with intellectual debate and practical achievement, the new framework will follow.