Patricia J. Tawney
Isleta tribal member
For several years I taught Federal Indian Case Law (FICL) to federal employees so they could understand their obligations to tribes.
This history is useful to federal employees. It is important to distinguish that these obligations aren't political or political correctness—but federal law.
As so many in Indian Country know, many Supreme Court case decisions are outrageous, unjust, racist and self-serving to the U.S. government.
My class wasn't allowed to deal with any of that. “Just focus on the history, and get to the current status of federal obligations under the law as quickly as possible” was the “policy” we implemented.
Having been retired now for a decade, I still think that I did federal employees a disservice by not explaining how tribes view these decisions, how they are still fighting the most outrageous of these historical injustices, and why that was the case.
But more importantly, I would have liked to put the entire concept of Federal Indian Case Law into an improved perspective.
Federal Indian Case Law was imposed on tribal nations and their people by courts whose membership they had no say. Tribal nations were imposed by force, interpreted by these courts under the U.S. Constitution where they again had zero representation.
The section of that constitution recognizing that the U.S. government’s treaties with Indigenous nations and their people were the law of the land, was one thing, but it left everything else up to the U.S. government to interpret and enforce at it's whim.
If I were to go back and teach federal employees what they really need to understand it would include (but not be limited to) the following:
The entire premise of plenary authority of Congress over Indian people is an act of tyranny.
The congressional act ending treaty making is unconstitutional.
Attempts by the U.S. government to reduce Nations into businesses is a fraud.
Indigenous means "here first" and nearly everything historically imposed on Indigenous people is an injustice and was and is historically wrong.
The largest single tax ever imposed on a people was the taking of Indigenous property, including land, surface and subsurface materials. This was taxation without representation in the single largest taking ever employed by the U.S. government. It's especially obsessive in a country claiming taxation without representation is unjust as foundational.
As a member of a tribe declared "civilized" by the U.S. Congress and yet its citizens were deprived of the right to vote in the state until after my birth in 1953. All actions taken by states or the U.S. government during these periods are violations of the constitution because hundreds of thousands of people were deprived of any say, vote, in laws that would impact their very lives let alone lively hood.
I view such laws with appropriate disdain and laugh at those who claim voter fraud now. That we hold supreme court decisions upholding such oppression as somehow sacred is a travesty of justice.
It is hypocrisy at its finest.
There is more, much more. The Federal Indian Case Law classes go on and on in law schools and federal offices. But they are inadequate. When I left—and to this day—the agency I worked for continued to claim they spent hundreds of millions of dollars for fish —because of the water that was flushed in the river for fish— as such flows didn't make the money it would have made had it flowed thru a turbine.
But it was never their water to give! This water belonged to the tribes, it was their right under treaty eighty years before a dam was ever built.. Imagine that tribes billed the U.S. government for all the stolen fish, fish killed in turbines for almost a hundred years.
The lost food source was taken by white men at coastal canneries and those fish were killed by banging their heads to death on dams without fish passage. The government took 80 percent on the front end (babies going out to sea) and then still claimed 50 percent of the returning fish. And they still act like flows for fish passage are a cost to the government.
All I could do at the time was complain that the information wasn't accurate. I couldn't stop it. And I couldn't address it in my classes.
I have been retired for over a decade. This is my apology to federal employees for not being more forthright. I should have taught you these things too.
I was grateful for being allowed to tell you anything. Like flows for fish, being grateful that a small piece of overreaching oppression was lifted ever so slightly. But it wasn't right.
If I could go back, I would teach it differently. Given a chance and I'd make it up to you and to the tribes and fish I couldn't protect.