Trust doctrine reflects cultural arrogance

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OLYMPIA, Wash. - The general consensus of most American Indian leaders and scholars is that the First Nations of North America have made positive strides in their relationship with federal, state and local governments. However, they are quick to say that a hovering shadow of ignorance is always on the horizon.

Nisqually Tribal Administrator Richard Wells of Washington said, "A lot of discrimination is just ignorance and it takes a long time to educate people."

Sam Deloria, director of the American Indian Law Center housed at the University of New Mexico, and a member of the Lakota Tribe, said, "If we compare relationships between governments 30 years ago, Native Americans have made a lot of progress."

This progress has been a steady upward battle by tribes coast to coast. Member and Policy Analyst for the Lummi Tribe Jewell James explains how and when this battle for change began: "The present status of tribal relationships began with the returning veterans of World War II when they battled to stop termination after fighting for freedom against dictatorship and paternalism. These concepts go hand in hand and the veterans fought against BIA paternalism. The protest movements against the Vietnam War and for Civil Rights in the '60s and '70s fed more fresh air into the tribe's battle for self-determination. The Indian Self-determination Act was finally enacted into law in 1975."

Self-determination and trust responsibility seem to be the most poignant discussions on the table.

"The stinkiest, slimiest, and most arrogant issue in Indian country today is the 'trust instrument,'" said Former Vice President of the Oglala Sioux Nation Milo Yellow Hair. "This means how can one race of people have plenary or parental power over indigenous peoples?"

This question arises every day in the lives of American Indians. The opinions and issues surrounding this question have as many faces as there are people. One of the most obvious examples is the rejection of the Duwamish's petition for federal recognition.

Yellow Hair said, "Chief Seattle is known today as the ultimate ecological warrior. Do we just sit back and allow his descendants to fade into the past? We, as the Oglala Sioux, have supported these traditional people's recognition. They have continued in their old ways of drumming, singing, learning their language, building their long houses and having their potlatches all without federal recognition. This is the crux of the issue. What is an Indian? Who is an Indian and what is his relationship to the federal, state and local governments, as well as his relationship to other tribes?"

Deloria presents a similar view with a slightly different twist. "The greatest peril Native Americans are facing today is the question of trust responsibility and self-determination," he said. "We have known for 25 years this was coming and that someone was going to say, 'You can see the light on the economic problems thanks to the gaming. How long should the federal trust responsibility exist? What kind of help do you need from anybody else?' Part of what makes the problems so complex is that Native Americans are forced by the politicians to take inconsistent stands. We complain about the parent-child relationship but then scream, 'don't you dare touch that trust responsibility.' It's a fundamental conflict considering what's been done in the past to Native Americans and what is still being done today."

Deloria feels there is another matter tribes need to address but are hesitant to do so. "Another issue is tribal jurisdiction over non-members on the reservations," said Deloria. "The U.S. Supreme Court hates this idea because they feel it's fundamentally unfair for a government to govern people that can't vote or participate in that government."

This attitude seems to be an about face turn as Indians didn't have the right to vote in America until after World War I.

Deloria said he thinks you couldn't have a tribal system where non-members could vote in an election but that through intergovernmental relationships whereby other non-tribal systems have the legal right to govern on the reservations, the dominant society would be assured that non-members were being treated fairly. He said: "Who else do we want to govern on the reservation besides ourselves? A lot of people say this is not a real question and so we will have to eventually answer for that."

Quinault member and former Assistant Director for the Governor's Office of Indian Affairs for the state of Washington, Jennifer Scott, voices the same concerns. "We sometimes don't respond quickly enough to changing times and our internal needs," she stated. "We see our systems fall behind law and order codes in contemporary tribal communities. In my lifetime I have witnessed the peaks and valleys of the external influences on our tribes and communities. Our Quinault people saw the need to create a new way of administering our programs through compacting instead of contracting with the BIA. In 1988 we instituted self-governance. This allowed us the first opportunity to develop our own infrastructure needed to administer our programs on a tribal level."

Scott thinks the hold up in creating harmonious governmental relationships is lack of education. "I spent nine long years educating anyone that would listen about the Native American's unique relationship with the U.S. government. So many feel their public education never informed them of treaties or what a sovereign nation is and that we are not just another ethnic group."

However Scott also wonders about the trust relationship Indians have with the U.S. government. "The whole mysterious power the government assumes over the Indian people or what they call plenary power administered though Congress is a difficult concept to understand. Their power and authority is very broad and it's hard to connect the dots."

Jewell James sheds a little light on this issue: "The way the governments run their systems today violates the U.S. Constitution and its intended relationship with tribal governments. Article VI, Clause 2 says that treaties are the supreme law of the land along with the Constitution and acts of Congress. This is the constitutional relationship. Tribal Indians and their governments were always to be separate from the national and state governments. This was the vision of the founding fathers with regards to Indian tribes, to make this separateness more complete. Article I Section 10 of the Constitution forbids states from entering into compacts with Indian nations because this was and is a national power. They couldn't even do this with the consent of Congress. Native Americans contributed to the formation of the U.S. Constitution and the Senate recognized this by Senate Concurrent Resolutions, #76 of 1987 and #331 of 1988, thanking the Indian nations for their contributions to the Constitution."

Having said that, James expounds on plenary power. "The tragedy is the U.S. Congress and Supreme Court have created legal fictions that undermine the constitutional relationship with the tribes. For example, 500 years ago they debated with Spain the Laws of the Indies. Sepuleveda in 1520 - '50s argued that Indians were less than human, therefore, the relationship had to be like a parent to a child. Bartolom? de las Casas defended the Indians, arguing that they had the right to govern themselves. Now we jump ahead to the Cherokee cases of Supreme Court Chief Justice John Marshall in the 1830s. The Supreme Court ruled that the relationship with the Indians was like a guardian to a ward, a domestic, dependent relationship. In 1978 the Supreme Court sided with Sepulveda and ruled on the Squamish v. Oliphant case, concerning a white criminal on Squamish land, that said the Indian tribes did not have jurisdiction over the white man and the reason was it was contrary to their dependent status. We were told we were too incompetent to have authority over a white criminal. This is institutional racism in law. This is why at least 180 tribes have decided to demand and exercise their rights to be self-governing and that demand goes all the way back to de las Casas. The U.S. carries the burden to honor the delegation of authority the people transferred to it. They have to recognize the rights of the Indian people to govern themselves and all people that willfully enter Indian country."

The battle to maintain self-governance has produced some dramatic changes in Indian country.

"When I was a young boy growing up on the Chippewa-Cree Reservation in Montana the BIA superintendent was in charge," said Former Chief Consul for the U.S. Senate and Cree member Alan Parker. "He said who got what land, resources, scholarships and so on. It was a representation of the colonial government, an almost total authority. The tribal council was only an advisory panel with very little authority. Today there is no vestige of that system. It's all tribal governments. There are some tribes that choose to have the BIA responsible but that is their choice and it's very empowering."

Parker recently visited with the Maori and Aborigines of New Zealand and Australia. "Those systems of law do not recognize the inherent right of self-determination," he said. "Over the years our tribal leaders, like former Quinault Chairman, Joe De la Cruz, have developed governmental relationships that have embedded the right of tribal sovereignty in law, which compels the other parties to accept the reality of our rights as opposed to the theory of it. We have to work with our neighbors and we should try to get along. There are individuals that are bad actors and so the relationship isn't good. However, the overall relationship between the tribes and their neighboring governments has been improving."

What happens to American Indians can also impact other indigenous peoples around the world. Jewell James explained, "I've visited with the indigenous peoples of Guatemala, Mexico, Brazil, Chile and Peru. They all look to the North American Indian as a model for defending their rights. I went to Australia and the Aborigines said, "What happens in Queensland is based on what happens in Canada and what happens in Canada is based on what happens in the United States so we urge you not to give up, for whatever you win is our future."