Matter of Opinion (cont.) 1/1996
Nations in Denial: Part II
"Forward Into The Future"
The conclusion of a fact/fiction story of how by 2075,
American Indian tribes became only a dim memory
by elmer m. savilla
Last month, in our final issue of 1995, we began a two-part story, part reality, part fiction, of a college student in 2075 who was studying Indian history in an attempt to understand how it was that once-powerful Indian Nations of the U.S. had disappeared. The archives told the student of the events of the 20th century and of the early 21st century which dealt with federal Indian policies and legislation, and what steps were taken by American Indian Tribal Governments to either take advantage of opportunities or to take actions to protect Indian people from federal efforts to remove the historic protection of the "federal recognition," which if removed would eventually lead to Indian assimilation into mainstream society and the disappearance of Indian Nations altogether.
The story concluded in Part I, that Tribal Leaders, and national organizations who were entrusted to protect treaty rights and to ensure perpetuation of the federal trust responsibility for Indian affairs, had failed to recognize the threats and failed to take appropriate actions in spite of the clearly stated intentions of a succession of American presidents and congressional law makers, which continued as late as December, 1995.
Events described as happening before December, 1995, are the factual events. Story events after January 1, 1996, of course, are fictional - - - but very possible. We begin Part II of this story with the brief description of the General Allotment Act of 1887, an important part of U.S. efforts to remove Indian Tribes as political entities. Remember, we are looking back, in our story, from the perspective of history books in the year 2075.
DENIAL: Part II Chapter IV
During the early and mid-1800s, extermination of Indian tribes was the official policy of the U.S. Even when religious groups intervened on their behalf, seemingly benevolent legislation and policies often carried hidden agendas. For instance, in 1887 Congress passed the General Allotment Act which on its face seemed to benefit the individual Indian by allotting land him for his personal use. But it had two devilish purposes: 1. To break up the tribal membership, and 2. To break up tribal land holdings.
In fact, President Theodore Roosevelt said as much before he signed the Act into law. "The General Allotment Act is a mighty pulverizing engine," he said, "to break up the tribal mass." "....(and) we should now break up tribal funds"... proposing that tribal lands and resources be sold and the funds be distributed per capita. Under Roosevelt, millions of acres of tribally-owned forests and millions of acres of Indian reservation land were taken away by Executive Order. Fortunately, at that time there was still some justice and it was later ruled that President Roosevelt's actions were beyond the power of the Executive office and some of the forests and lands were returned to the tribes.
This should have been encouraging to tribal leaders as one example that just by relying on sovereignty and treaties, much of what has been lost could have been recovered.
During the last half of the 1990's, efforts to "terminate" the federal recognition of Indian tribes took place in 1943, 1950, and in 1978. Each time, lists of tribes eligible to receive and enjoy the full "duties and privileges of U.S. citizenship" were drawn up. Each time, only quick action by a few tribes saved the day. Too, the full Congress was not yet ready to take drastic action because the support for Indian people would have fallen on the individual states. In 1995, with block grants to states for social programs almost a reality, some states saw this as a way to rid themselves of the annoying sovereignty and treaty claims of Indian tribes. The Indian leaders, without analysis, agreed to accept block grants for unspecified tribal programs. Again, they failed to realize that those block grants would be at the whim of an ever changing group of politicians.
Acquiescence by tribal leadership to the assumption of plenary power by Congress and their failure to challenge such violations of the U.S. Constitution also led to their demise. Such acquiescence was demonstrated first by their willingness to accept the limitation of their sovereignty to be set by congressional legislation and then to allow themselves and their affairs to be regulated by the Department of Interior (DOI). Objections to DOI policies and regulations were always half-heartedly made, even when Congress had mandated that consultation with tribes was a necessary process.
Up to the mid-1980s, tribes were attempting to force the federal agencies, including DOI, to consult with them on a regular basis. But Interior Secretary's had a secret weapon to divide the tribes. When a reorganized National Tribal Chairmen's Association (NTCA) pushed too hard, from 1980 to 1985, in opposition to policies or regulations, Interior could turn to the National Congress of American Indians (NCAI) for approval. Then-Senator Daniel Inouye (D-Hawaii) is known to have warned them several times, "You must speak with one voice. We don't know who speaks for the Indian people."
In addition, in 1991, Interior had a secret policy memorandum developed by an Assistant Solicitor named Scott Keep, which explained how Area Directors of the Bureau of Indian Affairs field offices could put down local tribal objections to policy. The Washington office of the National Tribal Chairman's Association uncovered that memo early 1982 and immediately made it available to tribes. It was used several times in judicial courts to demonstrate how oppressive Interior policies worked against the welfare of Indian tribes. But suffice it to say that even this kind of oppressive federal policy did not stir up the Indian survival instincts which many of their ancestors had practiced.
In the late 1980s, Senator Inouye, who was then-Chairman of the Senate-Select Committee on Indian Affairs, told tribal leaders time and again that they must recognize their sovereign status for protection against congressional efforts to diminish tribal authority. When in 1986 the Interior department moved to take over the business affairs of the Crow Tribe in Montana. Inouye told tribal leaders that they should all join with the Crow leadership to protect their sovereignty. Not one tribal leader moved to support the Crow. There are other such examples, but they only reinforce the view that the tribal leaders were unwilling to seriously challenge the federal government.
Indians had long been their own worst enemy. In spite of their leadership frequently citing the example of a fist being stronger than separate fingers, and a bundle of arrows being stronger that a single arrow, they did not ever manage to come together in anything resembling the unity needed because some leaders believed that it may be bad today, but the sun will shine tomorrow.
THE TAIL BEGAN TO WAG THE DOG -Chapter V
Because of legislative actions prior to 1995, tribal leadership, once regarded as all-controlling over tribal programs and enterprises had lost control of its biggest and most powerful enterprise: casino gambling.
The anomaly began during the free-wheeling 1970's and 80's when the several federal agencies funding various types of service and social programs (e.g., IHS-funded Health, Alcohol and Drug programs; HUD-funded housing programs, etc.) began organizing and funding government agency-sponsored Indian Board of Directors to oversee program operations. These Boards incorporated themselves and operated autonomously from tribal governments and formed national organizations. In a real sense, this isolated the governing tribal councils from the operations of the service program and gave the agency legitimacy in developing new policies and regulations. Tribal leaders sometimes found program personnel opposing tribal council recommendations and even competing with them for federal grants and contracts.
Thousands of dollars were spent by these national Indian program organizations on convention expenses, and they developed position papers which were rarely, if ever, seen by their own tribal governments. Too late, tribal governments finally realized that they had lost control of program operations even though they had to sign off on program contracts and grants. Efforts were made to require papers and resolutions to be funneled through tribal governments, but the effort has been only partially successful. In the late 1990s, tribal service program personnel were still spending thousands each year to attend meetings, conferences, and conventions.
In the late 1980s Indian tribal governments thought they had struck gold when they were allowed to develop gambling casinos on their reservations. They seemed to be grateful to the Congress for allowing them this favor. Soon the casinos were generating billions in profits for many tribes, but mainly for the casino managers under contract with the tribes. By now it was too late to worry about tribal sovereignty or any pretense of it, for in setting up their gambling industry, the tribes had ignored their own sovereign right to economic development and accepted the premise that only the Congress could allow them their casinos. Then they further agreed to give up a degree of sovereign immunity to the state in which their casino was located.
The same unconcern for sovereignty had surfaced in the 1980s when Congress passed legislation allowing Indians to practice their own religion. Critics said the freedom of religion had always been inherent in their sovereignty, besides being guaranteed by the U.S. Constitution. But the leadership embraced the idea that legislation was necessary to give them that right.
Then with billions of dollars rolling in from gambling casinos, the tribes formed an organization called the National Indian Gaming Association (NIGA). This group soon assumed complete control of tribal gambling affairs, unilaterally developing position papers, lobbying for gambling legislation and presenting testimony to Congress. The tribal leadership took a back seat when their own tribally-owned gambling industry was discussed. During the 1980s, tribal leaders had assumed control and responsibility for all tribally-owned enterprises. By 1993, they had lost interest.
By 1996, NIGA was all-powerful in Indian gambling affairs, which was of benefit of course, but a failing was that NIGA kept itself apart from other issues and did not join in any effort to protect tribal sovereignty and treaties. Their only concern was gambling, forgetting from whence they had sprung.
When in 1995, the Congress took note of the huge untaxed gambling profits and proposed a 34 percent tax on profits, the NIGA developed their own positions and strategies which they delivered to the Congress.
NIGA launched a big campaign to save their casinos, but none of their arguments was based on the treaties or the sovereignty of the tribes. Instead, their reliance once again was on the political process. Congressional hearings took place to work out details of the taxation of Indian gambling casinos. In these hearings, tribal leadership was hardly involved. The tail had begun to wag the dog.
By the end of the 20th century, new legislation to limit gambling on Indian reservations had become law. Tribal social programs and community buildings, schools and health clinics and any number of benefits to tribal members were now in danger. Since October 1995, tribes without casino income had suffered huge funding cuts, while those tribes with casinos had managed to get by. Then with taxation, new competition from state-licensed casinos, and the new legislation, casino tribes began to feel the pinch.
Without the huge gambling incomes, social and development programs could not continue and their new buildings could not be maintained, all because the Congress took notice of the profits and used it as justification for cutting Indian program funds. The most right-wing politicians said this was evidence that most Indian tribes were now self-supporting and therefore eligible for termination.
Again, there was no unified Indian protests or moves to test the constitutionality of all that had happened. So as the 21st century began, the power of Indian "nations" began to dwindle as one by one they were terminated and their affairs turned over the the various states under the political definition of a New Federalism whereby federal jurisdictions were given to the various states. By 2030, sixty percent of the 554 federally recognized tribes were only small local governments under the jurisdiction of the state.
In 2050, the last of the tribal governments were disbanded under the pressure from the "mighty pulverizing engine" which was first visualized in 1887.
Whether it was by plan or accident, under the guise of first self-determination, and then self-governance, the tribal leadership themselves designed the termination strategy, assisted by DOI career bureaucrats from 1989 to 1992, by devising a plan to reorganize and downsize the Bureau of Indian Affairs (BIA), which was a part of the DOI. But the reorganization plan, when finished, strangely resembled that envisioned in a congressional plan called A New Federalism For Indians.
This began their downfall through what was called a downsizing and streamlining of the BIA. The monetary savings in personnel wages and programs attracted the attention of congressional budget-cutters and thus began a serious effort to turn Indian budgets into just another budget line item, subject to veto and congressional whim. As the 1900s grew to a close, Indian tribes were reduced to shadows of their former selves, having little money to carry out the usual services provided by local governments for their people.
By 2015, America's Indian tribes were slowly being forced to turn to the various states for funds from block grants given to states by Congress. Troublesome tribes were made to give up authorities and jurisdictions in order to qualify for block grant money. A decade into the 21st century, many reservation residents had sold their land or lost it for non-payment of county and local taxes. Tribal councils became puppets for the state and county's now had former Indian lands on their tax roles.
By 2050, the last of the organized tribes were reduced to poverty and forced to become part of the state in which they lived. This prompted Congress, in an act of "kindness," to repeal all existing Indian legislation and to finally "free the Indians" to join the huge melting pot of American citizens. Their day in the sun was over.
PROLOGUE - Chapter VI
After four weeks of study and research, the student closed the last volume of American Indian History and slowly walked from the library into the dark of night. No one saw the tear in his eye. It was there because now the student knew what had killed his grandfather. A-ho!
Now back to the present. The story doesn't have to end this way. As an ancient philosopher once said. "Man is the master of his own destiny," Along the trail, choices are made. The choice followed can mean life or death, failure or success.