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Sen. Rand Paul Set to Ignore Treaty Obligations to Indians

Watch out, Indian programs and all those who depend on them. The toast of the Tea Party, Sen. Rand Paul, R-Kentucky, so desperately wants to cut the federal budget that he’s ready to stomp all over federal trust responsibility and treaty obligations to Indians—even obliterate them, if he must. The good news: The United States won’t be quite so broke. The bad news: The United States will have broken the law in order to balance its books on the backs of Indians.

Think that’s a melodramatic bit of hyperbole? Check out the proposal introduced in Congress Jan. 25 by the newly elected senator. It calls for the elimination of funding to the Bureau of Indian Affairs (BIA), the Department of the Interior agency that oversees a variety of Indian programs. That’s not all. The senator, who is a medical doctor (an eye surgeon, although seemingly myopic), also proposes trimming almost half of the Department of Health and Human Services’ Indian Health Service (IHS) budget this year. Republicans and Democrats don’t tend to agree on much, but one thing they have agreed on over the years is that IHS has been dramatically underfunded. Like them or not, the BIA and IHS are the main agencies of the federal government that have worked with and for Indians, carrying out federal trust responsibility and treaty obligations called for in the U.S. Constitution.

“What Sen. Paul is proposing would mean the end of the policy of self-determination and self-governance, among other things,” said Eric Eberhard, a law professor with the Center for Indian Law and Policy at Seattle University School of Law.
“Ironically, even as we see a resurgence of interest and veneration for the U.S. Constitution, there appears to be a blind spot when it comes to the obligations owed Native American Indians in federal treaties solemnly negotiated and ratified as the ‘supreme law of the land,’?” added Philip Baker-Shenk, a partner in the Holland & Knight firm’s Indian law practice group. “No honest fan of the Constitution can deny that the founders were referring to treaties with the Indians when they wrote the Constitution.”

But Paul isn’t worried about broken treaties. He’s fretting about broken U.S. piggy banks. Whether he’s doing away with the Department of Housing and Urban Development (which subsidizes tribal reservation home building) or cutting the Department of Agriculture’s food stamp program (which disproportionately aids Indian families), it’s all part of his ruthless plan to shrink the ever-growing federal deficit. (He also would trim $16 billion from the country’s military efforts in Afghanistan and Iraq.) In total, he hopes to slash $500 billion from the federal budget in one year. And that would just be the beginning of his ambitions. Unlike some politicians who support tribal interests (whether out of real concern, or concern for campaign donations), Dr. Paul isn’t afraid to take out his scalpel when it comes to agencies and programs specific to Native Americans. Of his desire to blow up the BIA, Paul posted the following explanation on his Senate website: “For far too long, the Bureau of Indian Affairs has swindled and mismanaged billions of dollars in Indian trust funds. Former Special Trustee Thomas Slonaker in 2004 testified that the Department of the Interior and the BIA were incapable of reform and were unwilling to hold people accountable for their actions.... Instead of wasting taxpayer funds [by] throwing money into a bureau of corruption and incompetency, eliminate them and allow the tribes to manage their own trust funds independently without government intervention.”

Even if you agree with his assessment of the BIA, Paul’s plan is misguided, if not disingenuous, since the agency oversees far more than Indian trust funds—it is also responsible for economic, justice, transportation and child welfare programs. But Paul isn’t fettered by such details. Instead he offered the following rationale for slashing the IHS budget: “[IHS] is notoriously wrought with fraud. A June 2009 Government Accountability Office reports that ‘millions of dollars in property and equipment continue to be lost or stolen.’ It is time to put an end to this blatant government waste. ”

Again, Paul is shortsighted and misinformed, since those “stolen goods” account for a tiny fraction of the agency’s budget—most of which goes to treating sick Indians. And why not just fire the people who stole the goods? Why throw the baby (and all those Indian babies) out with the bathwater? (At press time, Paul’s office had not responded to queries from This Week From Indian Country Today regarding this story.)

Baker-Shenk, a former staffer for Sen. John McCain, R-Arizona, said Paul’s plan sounds like the familiar “zero-­based budget” approach to cutting federal spending, which flags the agencies with a reputation for mismanagement and proposes to simply terminate them: “When this approach is applied to federal Indian programs it is entirely in conflict with the trust obligations of the United States for the care and protection of Indians and Indian resources, which obligations originate not from charity but instead from agreements in exchange for land and resources.” And Paul is not alone in taking this stance.

Every few years legislators pop up who want to upend the BIA and other Indian laws and programs—among them former Republican Sens. Slade Gorton of Washington state and Conrad Burns of Montana, as well as current Democratic Sens. Richard Blumenthal of Connecticut and Dianne Feinstein of California.

David Wilkins, an American Indian studies and law professor at the University of Minnesota Law School, said the simplicity (and simple-mindedness) of Paul’s arguments are worrisome because they could have two very different meanings. On the one hand, they suggest that Paul could use some education on Indian treaty rights and the history of federal trust responsibility. Perhaps then he would realize why his cuts in Indian programs are a bit different than a run-of-the mill “Stop the overspending!” agenda. On the other, Paul could know full well that the BIA and IHS are the main symbols of the trust responsibility and treaty obligations that the federal government has to Native Americans. By eliminating them he could be trying to limit the power of Indians. “That’s a problem,” said Wilkins. “We really have no way to judge him.”

Some of Paul’s Republican colleagues in Congress, while not quite as hatchet-happy, are willing to help him when it comes to rolling back federal Indian policy. The Republican Study Committee, “whose conservative members make up about three-fourths of the House GOP conference,” according to the Associated Press, unveiled a plan January 27 to cut $175 billion from current spending levels. Some of their most dramatic cuts would be reserved for the BIA and IHS, although none would be as draconian as what Paul has proposed.

Some in D.C. say ignore Paul’s plan and those from like-minded Republicans, because they’re obviously intended to grab headlines and convince voters that there is rampant waste in government and that Republicans are the only ones who can stop it. And these plans obviously aren’t going to gain any traction in the Democratic Senate or the Obama White House.

But for many Indians, the fact that Paul would even float the plan is an insult—and indicates that he has no awareness of American Indian history. And they sense that many legislators are willing to extend Paul’s ignorance (or intentional affront) to its logical conclusion: End federal trust responsibility for Indians. After all, that too is probably just a waste of money.

Indians have been here before. The era of termination of tribes arose out of the budget cutting frenzy of the post–World War II era. Indian termination was the official U.S. policy from the mid-1940 to mid-1960s, when legislators argued that the BIA was no longer necessary to protect Indians—that it would be more cost-efficient to completely assimilate them and do away with the federal bureaucracy. Some legislators even had the brass to argue that getting rid of the BIA was equivalent to the Emancipation Proclamation. In the end, of course, few Indians felt liberated—109 tribes were terminated, more than 1.3 million acres was taken from tribes, and entire cultures were pushed to the brink of extinction. The money the government “saved” by terminating tribes is believed to have been less than the cost added to the extant social programs, and many Indians, meanwhile, paid an even greater cost—the loss of their identities.

Given that historical context, Paul’s desire to end the BIA is alarming to some Indians. Tol Foster, an American studies assistant professor at the University of North Carolina at Chapel Hill, said Paul’s plan “looks a lot like neo-termination,” adding, “stripping federal dollars out of tribal budgets would be catastrophic; these funds make up most of their budgets.”

Foster, a Muscogee Creek citizen, speculated on Paul’s motives: “Some people tend to be amazingly ignorant as to why the Founding Fathers found it prudent to negotiate through treaties with Native tribes, and that those treaties as ratified were agreements to exchange most of this continent for services and aid provided by the federal government. Selective amnesia—as in the 1950s and early 1960s—can be a powerful weapon, particularly because Native Americans are such a very small percentage of the overall population, but are inordinately dependent still on federal funds provided often as not by people who have no knowledge of, nor interest in, Native American people. Ignorance is a mighty convenient thing, at times.”

One of the cruel twists here is that Indians feel forced to defend agencies that have sometimes betrayed them—it was the BIA that carried out those termination policy efforts. Some Indians have even called for abolishment of the BIA—but only with a greater remedy for Indians in mind. “It is a terrible irony—as tenuous a perch as the BIA is, it’s still a recognized perch,” said Wilkins, a citizen of the Lumbee Tribe.

Indian leaders are often delicate in their public critiques of BIA because they don’t want to encourage any talk of termination. National Congress of American Indians President Jefferson Keel displayed a perfect example of that when taking questions from the press after his Jan. 27 State of Indian Nations Address in D.C. “Wow, is Assistant Secretary Echo Hawk here?” he asked through laughter after receiving a question on the GOP’s desire to eliminate the BIA. “We’ve had difficult relationships with the Bureau of Indian Affairs,” he then said. “Not that the Bureau of Indian Affairs is inherently bad…. ” He went on to note that some tribes are strong in self-governance and have proven they can do more with less money than the federal government can accomplish. “Doing away with the Bureau of Indian Affairs? I won’t even go there.” In his address, Keel, a Chickasaw Nation citizen, had called the current time frame for Indian issues in Washington, “an era of recognition,” even as some in Congress that same week were pushing to abolish all federal agencies that are intrinsically tribal in nature.

If there is any good news related to Paul’s proposal, it’s that Indians now know who their true allies are in Congress. Some of the most important friends happen to be Republican appropriators in the House. Rep. Mike Simpson, R-Idaho, who chairs the appropriations panel overseeing the Interior Department, recently told the AP that the BIA and IHS are “programs he wants to try to protect.” And Rep. Don Young, R-Alaska, chair of the Indian affairs subcommittee in the House, while skeptical of BIA, thinks the agency should be reformed, not eliminated.

Meanwhile, many Indians are left to chew on some weighty questions: Why feel forced to hold the BIA and IHS up as sacred cows when they weren’t created by Indians, and have created plenty of problems? And if Paul won’t offer a better plan, why shouldn’t Indians do so? Some even see this dust-up as a springboard to a discussion rooted in the newly-supported-by-the-U.S. United Nations Declaration on the Rights of Indigenous Peoples. In accordance with the ideology of that document, Wilkins said many Indians would be happy to see the U.S. government move its handling of Indian affairs to the State Department, and treat tribes like the true sovereign nations they are.

But that is a much bigger conversation. For now, the onus for self-enlightenment (and remedy) is on Paul: “He should revisit the well-documented record of misery caused by the termination policy, the recommendations of President Nixon for ending termination and moving to the policy of self-determination, and the record of the hearings that led to the enactment of the Indian Self-Determination and Education Assistance Act, proposed by President Nixon and signed into law by President Ford,” Eberhard said. “Sen. Paul and other members of Congress should also revisit President Reagan’s 1983 Indian policy statement and the legislative history for the self-governance amendments to the Self-Determination Act that were signed into law by President Reagan.”

Added Baker-Shenk, with a nod to the Tea Party ideals Paul holds so dear: “Anyone proposing to terminate the BIA, if they are to honor the Constitution, must accompany that with a proposal for how to otherwise carry out the trust obligations of the United States towards Indians. No one can defend the twisted history of paralysis, waste and inefficiency that is intertwined with the BIA. But surgery and rehabilitation is the constitutional answer, not amputation or manslaughter.”