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USET Leaders Challenging Power

WASHINGTON—The United South and Eastern Tribes is leading a movement to change the way Indians nations and the federal government interact.

The first step is to redefine the trust relationship from an Indian perspective, said USET President Brian Patterson.

In the days leading up to USET’s annual Impact Week in Washington Feb. 7-10, Patterson was planning the organization’s long range goal to unify Indian country around an effort to define itself and its needs rather than allow others to do so.

It’s not about “rebranding,” said Patterson, who is serving his third term as USET president. His mission is to redefine and reshape the trust relationship between the U.S. and Indian nations based on the nations’ inherent sovereignty and equality so that the relationship works—as it should—for Indian people.

“This current game is not our game,” Patterson said of the politic system that dominates Indian country. “We’re spending money and resources hand over fist on lawyers and lawsuits and what not, but it’s not our game and we’re losing it.” Patterson is a Bear Clan representative to the Oneida Indian Nation council.

“This is no time to be timid in Indian country,” Patterson said. “There’s a need to engage in a discussion about identifying areas of the failed trust responsibility, about building a platform that will allow Indian country to define self- determination and the trust relationship as we see best, as we see the value of it—and then advance it.” The work has already begun in partnership with the National Congress of American Indians, Patterson said.

Writer Steve Newcomb described the task that USET has set for itself in a recent column.

“The English language we now use has its own set of constraints that make our efforts all the more difficult. English is not our language. It is not a language designed to do what it is we are trying to do with it: construct a reality in which we are free and self-determining Indian nations,” Newcomb wrote.

USET is a 42 year-old non-profit inter-tribal organization that collectively represents its 25 federally acknowledged tribes regionally and at the national level. It operates through various workgroups and committees and provides a forum for the exchange of ideas and information among tribes, agencies and governments.

Impact Week is USET’s winter meeting when tribal leaders gather in Washington to define and address Indian country’s current issues and legislative needs and meet with legislators.

“We’re preparing our platform to advance the issues in Indian country, but every issue we deal with circles back to the trust relationship and the federal government’s trust responsibility,” Patterson said. That’s why it’s so important to redefine the terms, he said.

Patterson recalled a flashbulb moment that deeply impacted his understanding of how language constructs reality.

It happened in Geneva, Switzerland, in 2004 when he attended a meeting of an international indigenous organization to present an address on human rights. Surrounding by citizens of indigenous nations from around the world, he had an epiphany about his own status as a citizen of the Oneida Indian Nation.

“That’s the one point in my life that I truly felt like a citizen of a sovereign nation and from that point on I realized I had been living my entire life under the context of terminology—domestic dependent nations—that’s used throughout this country, but it’s not our terminology or our definition,” Patterson said.

The term “domestic dependent nations” not only defines the trust relationship between the federal government and the 565 federally acknowledged Indian nations on Turtle Island, it also demarcates the boundaries of Indian sovereignty and self determination, and prevents the nations from realizing their full potential, Patterson said.

The phrase was coined by Supreme Court Chief Justice John Marshall in 1831 in Cherokee Nation v. Georgia, one of the three cases in the Marshall Trilogy that forms the foundational principles of what is called Indian law in the U.S. Rooted in the notion that Indian nations and peoples are not able to look after their own affairs, the special trust relationship operates on the federal government’s assumption that it is responsible to look after Indians, including managing Indian lands and resources.

In Cherokee v. Georgia, the Cherokee Nation tried to block the state from expropriating Indian land where gold had been found—land that was supposed to be protected by treaty. The court was split so Marshall weighed in and dismissed the case on jurisdictional grounds. He said the Cherokee Nation was not a foreign nation and, therefore, it didn’t fall under the high court’s authority to hear cases between states and foreign nations.

But the Cherokee were clearly a nation of some sort. Marshall said the Cherokee had an “unquestioned” right to the lands they occupied, but the U.S. claimed ownership of the lands—whether or not the Cherokee agreed—under the Christian Doctrine of Discovery, which allowed European nations to claim lands not occupired by other Christians.

“[The Cherokee and other tribes] may, more correctly, perhaps, be denominated domestic dependent nations,” Marshall wrote. “They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."

Clearly, the guardian-ward metaphor is not acceptable, said USET Executive Director Kitcki Carroll, a citizen of the Cheyenne-Arapaho Tribes of Oklahoma. And, although the terminology has changed, the understanding has yet to catch up, he said.

“Department heads and congressional representatives are using the right words, like ‘sovereignty’ and ‘trust relationship,’ but they don’t fully understand them and Indian nations end up against obstacles that often prevent us from fully realizing our sovereignty and self determination,” Carroll said.

USET’s member tribes in the east and south have the additional burden of being “hidden in plain sight,” Carroll said.

“For a good part of America, Indian country is romanticized, a kind of anecdotal footnote in history. People aren’t aware of what Indian country looks like today. The picture still put out there is of beads and feathers and what not. Eastern tribes are constantly fighting the mindset that either there aren’t any Indians in the east or that our needs are different. And, quite honestly, what we’re experiencing in the east is what the rest of Indian country will experience down the road. It’s always been that way.”

The problems are systemic and structural in the federal government system, Carroll said.

Patterson pointed to the issue of consultation as an example. While Indian country applauds President Obama’s efforts to advance the consultation process through his Nov. 5, 2009, consultation memorandum, “consultation fatigue” has set in, Patterson said.

Consultations should be more than a dialogue about how the federal government should work more effectively with Indian country, he said. The goal of consultations is clearly detailed in the U.N. Declaration on the Rights of Indigenous Peoples, which the Obama administration agreed to support in December, after voting against it at the U.N. General Assembly. Article 19 says that states will consult and cooperate in good faith with indigenous peoples “in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

Carroll pointed to another example of how the systems is failing Indians: Congress’ paradoxical power to determine the policies that affect what are supposed to be sovereign Indian nations.

“We know we don’t have strong representation within Congress, so our interests are never going to be priority number one, so we need to be proactive in defining a structure that meets our needs,” Carroll said.

Congress assumes plenary power over Indians because Marshall—again—interpreted certain clauses of the U.S. Constitution to mean that Congress has that authority.

Would USET challenge Congress’ plenary power?

“Absolutely,” Patterson said

“I would say that’s the path we’re going down,” Carroll agreed.

It’s about changing the game in order to protect the future of Indian country, Carroll said.

“We can become experts at the game the way it is now, but at some point we have to pause and figure out if this is the game we want to be playing. Do we want to continue to invest our resources this way?” Carroll said.

Pursing a true nation-to-nation relationship between sovereign Indian nations and the federal government is also fulfilling a promise from the past, Patterson said.

“We realize that through the giving of our land, our water, our resources that promises were made to us, not as special interest groups, not as organizations, but as unique sovereign nations within this country based on the Constitution and on treaties. We owe it to our ancestors’ visions, to the past generation as well as to our future generations to implement that,” Patterson said.