Trump Will Repeal and Replace It!

Will the new presidential administration undermine years of defining "indian" as a political, and not racial, qualification, thereby putting Federal Indian Law at risk?

No, not Obamacare. Federal Indian law.

President Trump had the blueprint down for ending tribal sovereignty long before he went into politics. My hope was that we would be so far down his priority list that he would not get around to us.

A column by my colleague Lynn Armitage tells me that was a vain hope. She quotes Deswood Tome as asserting that our statutory citizenship is different than constitutional citizenship to our detriment.

That was once true in one sense. It could be taken away. It was conferred without our request and it theoretically could be taken back in a similar manner, but I don’t think that’s possible now.

One reason is that I do not think the courts will any longer construe the Fourteenth Amendment to deny American Indians birthright citizenship. Leaving aside the administrative nightmare, citizenship cannot be taken away from persons currently citizens absent fraud in the application (we made no application) and that makes our children birthright citizens.

Tome goes on to claim that the Indian Citizenship Act makes us second-class citizens. Say what?

Let’s see. I’ve got a passport. I’ve got Social Security. I can vote. I have rights under the Constitution that the courts will recognize. What exactly is it I don’t have that a fully white citizen has (I’m mixed blood)?

I do have one thing in addition to what a fully non-Indian citizen would have and that is my tribal citizenship. Did you notice my code switch from “white” to “non-Indian?” My purpose was to call attention to some peoples who do not have tribal citizenship in spite of being similarly situated to us in all other respects: Native Alaskans and Native Hawaiians.

Alaska was “owned” by Russia based on conquest and we bought it. The U.S. refused to recognize aboriginal land titles. Congress avoided complete destitution for the indigenous peoples of Alaska with the Alaska Native Claims Settlement Act in 1971.

Alaska Natives got their claims involuntarily settled by allocation of assets to Alaska Native Corporations, in which each Native Alaskan was supposed to get 100 shares. I lack the space to evaluate how the corporations worked out in terms of Native interests, but American Indians ought to study the Alaska situation carefully because it is one possibility for what may become of us in the Trumpian revocation of tribal sovereignty. After all, tribal assets have to go somewhere and it would be bad form to take them immediately. Taking them gradually is more likely.

Hawaii was claimed by England based on Christian discovery but that didn’t work out because the discoverer, Captain James Cook, got in an argument with the Natives that did not end well for Cook and several British marines.

Hawaii progressed as much of the world has, from competing warlords to a monarchy to a constitutional monarchy. The last monarch, Queen Liliʻuokalani, was overthrown by a U.S. backed coup d’état in 1893.

One hundred years later, Congress passed an apology for the coup and acknowledged that the U.S. had annexed Hawaii unlawfully. On the individual level, Native Hawaiians suffered terribly from European diseases and then from a plague of European missionaries.

The economic and social status of Native Hawaiians is similar to ours. They are circa five percent of the population and they lag in per capita income and education. The state has an Office of Hawaiian Affairs that was meant to manage what public lands Hawaii has left for the benefit of surviving Native Hawaiians.

There are also schools that offer preferential admission to Native Hawaiians for the purpose of addressing the education problem.


Non-Hawaiian settlers have filed lawsuits claiming that these programs are unlawful race discrimination. They have prevailed in opening voting for the trustees of the Office of Hawaiian Affairs to non-Natives and allowing non-Natives to stand for office.

A lawsuit attacking a prep school for Native Hawaiians was made to go away by buying off the plaintiffs because most observers agreed that a school to benefit Natives would not fare well in the U.S. Supreme Court.

The litigation strategy that is slowly prevailing is to challenge the very existence of the Office of Hawaiian Affairs as an act of race discrimination against non-Natives.

The same equal protection of the law argument is regularly directed at programs set up to benefit American Indians and the logic of the Hawaiian case on the OHA election would seem to dictate that non-Indians resident on reservations ought to win lawsuits to be allowed to vote in tribal elections.

What insulates Indians is a line of cases holding that “Indian” is not a racial classification but rather a political one. Ironically, that argument was born in the Japanese internment cases, and in those cases it was bogus. The claim was that internment was lawful because it was not based on race but on allegiance to Japan, a claim that was bogus because most of those interned were American citizens and there was no similar treatment of German-Americans or Italian-Americans.

The race v. tribal citizenship distinction does not rest on particularly solid legal grounds and it has been under relentless attack by the political right organized as the Citizens Equal Rights Alliance, One Nation, and like organizations. Trump is well briefed on this and he was attacking that distinction when he said in a Congressional hearing that his adversaries “don’t look like Indians to me.”

U.S. Indian policy went though a period called “termination and relocation.” It was never held to be unlawful but rather was beaten back politically when the consequences were shown to be dooming relocated Indians to the existence of an urban underclass.

Termination of tribal governments was and is legal. Recognition conferred may be taken away. More importantly, sovereignty cannot effectively be exercised from a condition of dependency.

This is why I have advocated that every tribal government should make two budgets every year. The working budget and another that assumes not a dime coming from the federal government. Doing so would create a potent political weapon against termination and a fall back position if termination comes anyway.

I would very much like to hear advocates of repealing and replacing federal Indian law explain what they propose to replace it with. Indian lawyers understand federal Indian law is grafted uncomfortably to English common law and it contains lots of internal contradictions.

I would love to see federal Indian law rationalized if that could be accomplished without harming Indians, just as I would love to see the obvious shortcomings of Obamacare repaired. To date, I know a grand total of two Indians riding the repeal and replace bandwagon, Lynn Armitage and Deswood Tome.

The difference between Obamacare and federal Indian law is that the fixes for Obamacare are easy to see and would already have been made in an alternate reality where Congress is not dominated by people sent to blow it up rather than to govern. Federal Indian law, on the other hand, has a longer history and many more moving parts.

I don’t question that federal Indian law can be improved just like I don’t question that Obamacare can be improved. I’m just skeptical about the “and replace” part of the formula. If I were Czar, I could fix Obamacare in no time. I’ve spent a lot more time studying federal Indian law and I have very little to say about how to fix it.

Those Indians who know how to fix it need to speak up, and everybody needs to become familiar with the status of Alaska Natives and Hawaiian Natives. The former have corporations to preserve their interests and the latter have nothing when even the good intentions of state government are in constitutional jeopardy.

Repealers, terminators—call them whatever makes them happy but demand they explain the “replace” before you go quietly with “repeal.”