As an enrolled member of an Indian nation in America, you often get a feeling that you are a foreigner in your land. I am one of those Indians who were separated from their tribe and adopted by a non-Native family before the passage of the Indian Child Welfare Act in 1978, uprooted from my Native culture and language and forced into a new identity. The great truth was that I could never let go of my Native roots, even if I tried to blend into mainstream America. My Native roots were strong, deep, and unyielding. I’m American, but I am a dual citizen with membership in my tribe, the Navajo Nation. I bounce between two worlds, like many of my Native sisters and brothers.
Native Americans are treated as mythological creatures in America, and our modern-day voices are often not heard in today’s world, let alone in the political arena. An excellent example of how Native Americans can feel left out of the conversation is the current criticism of tribalism in our politics. From the Native perspective, tribalism is a source of pride and foundation in one’s identity that doesn’t create harmful divisions. Attend a Pueblo feast day where neighboring members of other tribes partake in a bowl of stew, and you’ll see firsthand how tribalism can be a good thing.
I can count on one hand the times I felt American politicians understood me as a Native American voter. One was when I served under former President Obama with countless other Native American appointees, working together as public servants to restore and rebuild the broken trust relationship between over 500 Indian nations and the United States. More recently, I felt that our voices mattered at the Frank LaMere Native American Presidential Forum in Iowa a few weeks ago. To hear multiple presidential candidates, speak about treaty rights, the fulfillment of trust responsibilities, and the moral duty to address our plight felt like a new chapter in the fabric of American politics.
The key will be to not become a short soundbite in a campaign cycle. My sense is the candidates at the Forum are committed in heart and mind to the mission of addressing our issues (and by the way, Joe Biden’s absence was unfortunate as I have seen him in action on Native American issues and we have side-barred on the topic, and he says all the right things). The candidates hit all the top issues: public safety, healthcare, education, and economic development, to name a few. Many of these changes and reforms will require significant funding and legislating specialized treatment of Native Americans, which likely means that the Senate will need to flip to make them a viable reality. But it’s a good start with candidates speaking our language for once.
The challenge will be finding the political will to implement these reforms. We had that political will under the Obama administration where we made significant gains with the annual White House summit, the historic settlement of many tribal trust lawsuits including Cobell, and the recognition of tribal inherent authority to prosecute non-Native domestic violence offenders, among many others. A new president will provide an opportunity to build upon the Obama platform. I recommend that any new administration not only address the social ills and injustices that we face but also focus on reforms that will strengthen and protect tribal self-governance. It is easy to get caught up in the parade of horribles inflicted upon Native Americans in campaign rhetoric, but tribal nations are also emblematic of high strength and resilience that should be celebrated by the candidates.
One area the candidates should add to their list is that a president should walk the walk of being a good trustee by protecting tribal sovereignty in the courts. This commitment starts with appointing an Attorney General at the U.S. Department of Justice that will file litigation affirmatively with the Tribes in support of tribal sovereign authority, such as to protect treaties, tribal lands, and tribal jurisdictional authority. During my stint as Interior’s Solicitor, a large part of my job was educating my federal colleagues about why the official U.S. litigation position was not consistent with the federal government’s role as trustee. I had some successful outcomes, but countless other losses where I remained the minority view (literally and figuratively) that the U.S. litigation position should be on the right side of tribal sovereignty.
Another area that the incoming president should address is the appointment of Native Americans to the federal bench. He or she should be developing a list of potential candidates as we speak to align with upcoming vacancies. Given the magnitude of federal cases that impact Indian nations, we must have judges that possess a basic understanding of federal Indian law. There are over 800 seats in the federal court system with only three Native American judges appointed. The lack of Native American representation in our federal judiciary perpetuates the disenfranchisement and dispossession of tribal authority.
A final example of where a new president could bring about positive change is by understanding that he or she may be the commander-in-chief of the United States, but not for the Tribes. The future of Indian Country should be defined by tribal leaders with the federal government in an ancillary but supportive role. The candidates are rightly focused on the dire conditions in Indian Country. It is unacceptable that: some reservation communities still lack running water and electrical services; Indian Country is often hardest hit by the impacts of climate change from drought, wildfires, and sea-level rise; and energy projects shouldn’t be forced upon tribes. But in the same breath, the candidates need to acknowledge that the Tribes are the ones which are best suited to determine how to address these and many other pressing challenges.
A president has great power to make a change for the better in Indian Country, but it is ultimately the Tribes that must determine their future path. We saw that dynamic when former President Obama used his presidential power under the Antiquities Act to designate the Bears Ears National Monument based on tribes’ cultural knowledge and identification of this sacred landscape. Together, the Tribes and a new president could make more great history, if our voices are heard not as another voting constituency, but as dual citizens with a perpetual trust relationship with the United States unlike any other entity in the American body politic.
Hilary C. Tompkins, Navajo, served as the first Native American Solicitor for the U.S. Department of the Interior under the Obama administration and currently is a partner at Hogan Lovells in Washington, D.C., practicing Indian law.