Pathways to Indigenous Nation Sovereignty : A Chronicle of Federal Policy Developments [1 ed.] 9781938065026, 9781938065019

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Copyright © 2018. Michigan State University Press. All rights reserved. Pathways to Indigenous Nation Sovereignty : A Chronicle of Federal Policy Developments, Michigan State University Press,

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Pathways to Indigenous Nation Sovereignty

Pathways to Indigenous Nation Sovereignty : A Chronicle of Federal Policy Developments, Michigan State University Press,

Makwa Enewed is a sub-imprint of the American Indian Studies Series at Michigan State University Press.

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Gordon Henry, Series Editor Makwa Enewed stands dedicated to books that encompass the varied views and perspectives of people working in American Indian communities. In that light, books published under the Makwa Enewed imprint rely less on formal academic critique, argument, methodology, and research conventions and more on experientially grounded views and perspectives on issues, activities, and developments in Indian Country. While work published in Makwa Enewed may resound with certain personal, speculative, conversational, political, and/or social concerns of individuals and groups of individual American Indian people, in a larger sense such concerns and their delivery reflects the import, strength, uniqueness, and potential viability of the imprint. The imprint will gather its strength from the voices of tribal leaders, community activists, and socially engaged Native people. Thus, each publication under the Makwa Enewed imprint will call forth from tribally based people and places, reminding readers of the varied beliefs and pressing interests of American Indian tribal people and communities.

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CONTENTS

Pathways to Indigenous Nation Sovereignty a chronicle of federal policy developments

Copyright © 2018. Michigan State University Press. All rights reserved.

Alan R. Parker

Makwa Enewed | East Lansing, Michigan

Pathways to Indigenous Nation Sovereignty : A Chronicle of Federal Policy Developments, Michigan State University Press,

Copyright © 2018 by Alan R. Parker

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Library of Congress Control Number: 2017908617 ISBN 978-1-938065-01-9 (paperback) ISBN 978-1-938065-02-6 (PDF) ISBN 978-1-938065-03-3 (ePub) ISBN 978-1-938065-04-0 (Kindle) Book design by Charlie Sharp, Sharp Des!gns, East Lansing, MI Cover design by Shaun Allshouse, www.shaunallshouse.com Cover photo by Sharon Parker

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CONTENTS

Contents

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vii xi 1

Foreword, by W. Ron Allen Preface Chapter 1. The Historical Context of the U.S. Government’s Policies Regarding Indian People

13

Chapter 2. The American Indian Policy Review Commission

31

Chapter 3. The AIPRC Recommends That an Independent Committee on Indian Afffairs Be Established in the U.S. Congress

39

Chapter 4. The Indian Child Welfare Act of 1978

45

Chapter 5. The American Indian Religious Freedom Act

51

Chapter 6. Indian Land Claims and Water Rights Claims Settled by an Act of Congress Serve as Treaty Substitutes

57

Chapter 7. Senator Inouye Becomes Chairman of the Senate Committee on Indian Afffairs

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Chapter 8. Developing an Economy in Indian Country

85

Chapter 9. Senator Inouye Travels across Indian Country, 1987–1989

91

Chapter 10. The National Museum of the American Indian Act

99

Chapter 11. Creating the Native American Graves Protection and Repatriation Act

103 123

Chapter 12. Looking beyond Our Borders in the Twenty-First Century Conclusion

129

Appendix 1. A Tribute to Senator Daniel K. Inouye

133

Appendix 2. Legislative Steps on the Path to Sovereignty

145

Appendix 3. Chronology of the Life and Work of Alan Parker Notes Index

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151 155

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Foreword

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W. Ron Allen

I

was honored when Alan Parker asked me to write a foreword to his book, Pathways to Indigenous Nation Sovereignty: A Chronicle of Federal Policy Developments. This book is a great read for anyone involved in working with Tribal Nations in the United States. It caused me to reflect on many of the experiences that Alan shares with those of us in Indian Country and with the general public. He tells us the story of his lifelong career in public policy work on behalf of tribal rights of self-governance and inherent sovereignty. His work with the many diffferent tribal leaders he has encountered has, in my opinion, led to transformative changes for Indian Country in the last quarter of the twentieth century and the fijirst decade of the twenty-fijirst century. This story of the journey that Alan Parker has traveled in his career is one that I believe is a “must read,” not only to understand the contributions of Alan and his colleagues, but also as an invaluable tool for today’s leaders of Indian Country, leaders with whom Alan has worked in the past to protect our sovereignty. More importantly, this is a resource for our future leaders who need to know the backstory to what has been achieved in the last forty-plus years. This book does a couple of things for me as a tribal leader today. First, it was a delight just to reflect on the career of a man I have had such great admiration for because of his dedication, experiences, and sensitivity to the complex needs and

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aspirations of the Indigenous Nations throughout the world. Second, it reflects on his personal insights regarding how the tribes in the United States and Indigenous Nations throughout the world have navigated their own path toward reafffijirming and strengthening their sovereignty and asserting control over their own tribal afffairs. These reflections provide insight into how the tribes have been reacquiring their self-governing and self-reliance goals in the twentieth century, and now into the twenty-fijirst century. I am confijident that this book will become an essential read for all the new leaders across the Indigenous world for many years. It will help them to remember and to understand what past leaders have done to protect our unique standing in the larger political world, and their contributions in protecting and defijining our political standing against the backdrop of American history. It has often been said that you must look back in history in order to know where you are going in the future. This book will take you on such a journey. I have always had great respect for the warrior leaders of our past who have fought so hard to advance self-determination and self-governance. They worked with leaders in the fijield of public policy like Alan Parker and his contemporaries in the political environment that is Washington, DC, working with congressional leaders in the past and the diffferent presidents and their executive branch administrations. I particularly appreciated the stories that he tells of his work with one of the most influential leaders in Congress at the end of the twentieth century—Senator Daniel K. Inouye. Alan was appointed to serve as stafff director to the Senate Committee on Indian Afffairs by Senator Inouye when he fijirst became chairman of the committee in 1987. He, together with Patricia Zell, who served as chief counsel, assisted Chairman Inouye to secure passage in the Congress of a series of monumental laws. These laws include the Tribal Self-Governance Act, the Indian Gaming Regulatory Act, the National Museum of the American Indian Act, and the Native American Graves Protection and Repatriation Act. Alan’s journey started in the 1970s when he began working on the American Indian Policy Review Commission to create the fijindings and recommendations that led to the Indian Child Welfare Act (1978) and the American Indian Religious Freedom Act (1978) along with historic land-claims and water-rights settlement legislation. The story of his work to create the self-governance legislation transcends into the twenty-fijirst century, and Alan’s insightful perspectives are offfered to Indian Country not only to show how far we have come but also how far we have yet to go in our work on behalf of the Indigenous peoples of the world. His recollection of how the Indian Self-Determination and Education Assistance Act had to be changed

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provides us with an understanding of how difffijicult it was to change the political status quo in order to achieve the recognition and respect tribes now possess. Alan shares his thoughts about how essential it is for tribes to become self-governing and self-reliant, and that establishing and building a strong economic base is needed to supplement federal resources.

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Preface

T

his book has been entitled “Pathways to Indigenous Nation Sovereignty” in tribute to the life and work of the late Joseph Delacruz, former president of the Quinault Indian Nation and president of the National Congress of American Indians. I have long considered Joe my hero and mentor. Before he passed away in the year 2000, Joe asked me and my teaching partner at Evergreen State College, Dr. Linda Moon Stumpfff, to establish a special school for tribal students. He wanted us to create a place where they could learn about the lessons that he and his colleagues and fellow tribal leaders had learned as they traveled the path to regain their Indigenous nation sovereignty. On many occasions, I had the opportunity to observe how Joe and his fellow travelers on the path to sovereignty were clearly guided by a vision that they shared in common. They came of age in the 1960s and 1970s, and they saw how their elders had successfully battled against and overcome attempts by leaders in the U.S. Congress to carry out a government policy of “termination.” In the 1950s post‒World War II America, the leadership in Congress had decided that it was now time, as they put it, to get the government out of the Indian Business and to bring an end to the legal/political status of tribal Nations as self-governing Indigenous sovereignties in the United States. The tribal elders of the 1950s knew that their tribal sovereignty rights predated the establishment of the

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United States. After the former colonies of the Kingdom of Great Britain won their war of independence in 1776, they came together in 1787 to adopt a constitution as an instrument through which they would govern themselves as an independent nation. Ironically, these “Founding Fathers” of the United States also embedded in their constitution legal authorities in the commerce and treaty-making clauses that spoke of the Indian Nations as being on a par with foreign nations. The vision that inspired and guided Joe Delacruz and his fellow tribal leaders came also to inspire me in my work when I served as a chief counsel and then stafff director to the U.S. Senate Committee on Indian Afffairs. I have attempted to tell the story in this book of how we were able to gather together the ideas and goals of many diffferent American Indian leaders from diffferent tribes and professional backgrounds. We wove these ideas into an agenda for action, and with the help of our friends in Congress, these ideas have become “the law of the land,” as they were enacted in the 1970s and 1980s as statutes by an act of Congress. I sincerely hope that we have fulfijilled the charge that Joe Delacruz has given us, and that this book will become a valuable educational tool for the next generation of tribal leaders and their supporters.

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CHAPTER 1

The Historical Context of the U.S. Government’s Policies Regarding Indian People

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The 1961 American Indian Chicago Conference on Indian Policy Tribal leaders at the beginning of the 1960s began to articulate the idea of tribal self-determination as an alternative to tribal termination. The pivotal event that influenced the thinking of this generation of tribal leaders was the 1961 American Indian Chicago Conference on Indian Policy.1 The conference was organized primarily by the founders of the National Congress of American Indians (ncai). They included D’Arcy McNickle, a member of the Salish and Kootenai Tribe and former stafff to John Collier when he was commissioner of the Bureau of Indian Afffairs during the Roosevelt administration. Earl Old Person, leader of the Blackfeet Tribe, and Wendell Chino, the Mescalero Apache tribal leader, also joined the Chicago Conference. The conference grew out of the realization that John Kennedy’s election in 1960 had created a window of opportunity that they could use to influence federal policy. Support in hosting the conference came from one of Collier’s friends, a noted anthropologist named Sol Tax. Professor Tax was on the faculty at the University of Chicago and he agreed to host the meeting. The 450 leaders from 90 diffferent tribes at the American Indian Chicago Conference included many activists who had also worked on creating the ncai organization

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when it was founded in 1944. After many days of deliberation in Chicago, they issued a paper that they called “The Declaration of Indian Purpose,” which summarized their ideas and recommendations for changes in federal Indian policies. Their paper reached President Kennedy’s hands in August 1962, and he saw that the slogan “Indian Self-Determination, Not Termination” expressed their core ideas. The Chicago Conference launched a movement among Indian people that became part of the national Civil Rights Movement in the 1960s. In the summer of 1966 the secretary of the Interior under President Johnson, Stewart Udall, a former congressman from Arizona, convened a meeting of Indian leaders in Santa Fe, New Mexico. He announced to them that the federal government’s policy was no longer termination, and that he had heard their message that came from the 1961 Chicago Conference, which called for a policy of Indian self-determination. He explained that he had created a Task Force on Indian Afffairs that was being chaired by the commissioner of Indian Afffairs, Philleo Nash, and that the task force was nearly fijinished with its report. This report would focus on the development of Indian resources. What the United States is attempting to do for those in the underdeveloped areas of the world . . . we can and must do for the Indians here at home. Furthermore, to insure the success of our endeavor, we must solicit the collaboration of those whom we hope to benefijit—the Indians themselves. To do otherwise is contrary to the American concept of democracy.2

Secretary Udall went further when he replaced Philleo Nash and appointed a new commissioner for Indian Afffairs who was himself a Native American—Robert Bennett, an Oneida Indian from Wisconsin. Bennett was the fijirst Indian to hold this offfijice since Ely S. Parker, a Seneca Indian, nearly a century before. In 1967, Commissioner Bennett worked with those Indians who were engaged in the economic opportunity programs to develop a proposal for new legislation, which they called the Indian Resources Development Act of 1967. Secretary Udall called this proposal “the most important legislation proposed for American Indians since the Wheeler Howard Act of 1934” (the Indian Reorganization Act), and he personally testifijied strongly in favor of the legislation when it came time for congressional hearings.3 Unfortunately, many Indian leaders read into this proposal a form of disguised termination, as it would have called for them to be responsible themselves for development of their own lands and natural resources. They saw this proposal as

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a way for the government to back out of their trust responsibilities, and as a result, this group of Indian leaders publicly opposed Udall’s ideas in congressional hearings on the legislation. Moreover, the proposed legislation also contained authority for tribes to mortgage their lands in order to secure fijinancing for development projects. They saw that if they took out a mortgage on their tribal lands and could not keep up payments on such a mortgage loan, the land would then be taken by the mortgage lender. Building on this historical record, President Richard Nixon later proposed, in his 1970 message to Congress, that Congress create an Indian fijinancing authority to assist the tribes with their economic development effforts. This idea was taken up by Congress when Congressman Mo Udall introduced the Indian Financing Act legislation, which contained authority for the government to offfer, instead of ability to take a mortgage, a federal guarantee for loans to Indians and Indian tribes. The Indian Financing Act legislation was passed in 1974.4

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The 1968 Indian Civil Rights Act Leaders in the Congress who had been working on civil rights legislation in the 1960s also took an interest in Indian civil rights. The chairman of the Senate Judiciary Committee at that time was Senator Sam Irwin of North Carolina. He became aware that American Indian tribes were equipped with a court system that had been created by the Bureau of Indian Afffairs (bia) as administrative courts, which the bia called “Courts of Indian Offfenses.” These courts were authorized under the Code of Federal Regulations rather than by an act of Congress and thus were referred to as cfr courts. The federal regulations that they used simply defijined a series of activities that they labeled as criminal offfenses that merited criminal prosecution by bia law-enforcement offfijicers. The cfr courts were stafffed by judges appointed by the bia superintendent of the various Indian reservations. When Senator Irwin looked into the history of the cfr courts, he found that individual Indians who were arrested by the bia police offfijicers were not advised of their civil rights, nor of their right to be represented by legal counsel or by lay advocates who could advise them of their rights to be free of self-incrimination. Senator Irwin’s fijirst instinct was to correct the evils resulting from this abuse of Indian civil rights by subjecting the Indian tribal governments to the same limitations and restraints as were imposed on the federal government in the Bill of Rights, the fijirst ten amendments to the U.S. Constitution.

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However, it soon became clear from the testimony of Indian leaders and federal offfijicials that they thought that this would be too sweeping an imposition and a burden on tribal governments. Indian tribal governments difffered from the federal government radically in terms of their capabilities and resources. To apply the full Bill of Rights as found in the Constitution did not make sense to tribal witnesses on the bill, and they thought that it would also upset their traditional governing practices. Especially crucial would be the prohibition against the “establishment of religion” found in the First Amendment of the Constitution. The Pueblo Indian leaders testifijied that this would obstruct quasi-theocratic practices found in Indian communities such as the Pueblos in New Mexico. In the end, Senator Irwin was persuaded to write a separate Indian title to the Civil Rights Act of 1968. Title II of the act, “Constitutional Rights of the American Indian,” provided that “No Indian Tribe in exercising powers of self-government, shall: 1.

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2.

3. 4. 5. 6.

7.

8.

Make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances; Violate the right of the people to be secure in their persons, houses, papers, and efffects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or afffijirmation, and particularly describing the place to be searched and the person or thing to be seized; Subject any person for the same offfense to be twice put in jeopardy; Compel any person in any criminal case to be a witness against himself; Take any private property for a public use without just compensation; Deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense, to have the assistance of counsel for his defense; Require excessive bail, impose excessive fijines, inflict cruel and unusual punishment, and, in no event impose for conviction of any one offfense any penalty of punishment greater than imprisonment for a term of six months or the fijine of $500, or both; Deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

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Pass any bill of attainder or ex post facto law; or Deny to any person accused of an offfense punishable by imprisonment the right, upon request, to a jury trial of not less than six persons.5

The Indian Title authorized individuals to take a writ of habeas corpus to the nearby federal district court in their region whenever they were arrested and detained in tribal jail and thought that their civil rights were being violated.6 The Indian Civil Rights Act also contained a provision that directed the secretary of the Interior to draw up a “Model Code of Indian Offfenses for the administration of Justice by Courts of Indian Offfenses or Tribal Courts.”7 It is very important to note that Title II of the Civil Rights Act also repealed Section 7 of Public Law (PL) 83-280, a termination era law enacted in 1953 that unilaterally imposed state laws on all tribes located in the states enumerated in the law. PL 280 listed seven states that would be included in the “extension of state jurisdiction.” This section of the 1968 Act, 26 usc 1321, stated that tribes had a “right of approval,” that is, consent, before state jurisdiction could be imposed. The law also authorized the “retrocession” of jurisdiction that had already been assumed by a state if the tribes located in the state requested such a retrocession. The 1968 Indian Civil Rights Act had a mixed reception in Indian Country. While Indian groups were strongly in favor of the language limiting the power of states to extend their jurisdiction under pl 280, they were concerned that the legal and formulistic procedures followed by federal authorities would be imposed upon them without their consent or agreement. In many cases these fears were justifijied, as many tribes were confronted with a barrage of lawsuits fijiled against them in their local federal district court. Defense attorneys charged that a violation of their clients’ individual civil rights had been perpetrated by tribal governments across Indian Country. Other lawsuits were fijiled making broad claims that the rights of “due process” and “equal protection” under the new Indian Civil Rights law were being violated by actions of the tribal governments. Local federal district-court judges were also alarmed by lawsuits asking that they issue an injunction against a tribal government in lawsuits claiming damages against individual tribal offfijicials. The fijirst ten years after the 1968 Indian Civil Rights Act was passed saw an abundance of cases taken on appeal to federal circuit courts of appeal across the West, alleging many diffferent violations of the law by individuals who felt that they had been aggrieved by the actions of their tribal governments.8 This abundance of new cases nearly came to a stop when the case entitled

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Santa Clara Pueblo v. Martinez was handed down by the U.S. Supreme Court in 1978. Mrs. Martinez, a member of the Santa Clara Pueblo, brought her case when her attempts to enroll her daughters in the Santa Clara Pueblo were denied because the children were the offfspring of an Indian man who was not a Pueblo Indian. She presented her case with the claim that this was a violation of her right to equal protection of the laws, a form of blatant sexual discrimination. She was able to point to examples where the children of male members of the Pueblo whose children from a non-Indian female were allowed to be enrolled in the Pueblo without any difffijiculties. The Supreme Court handed down an opinion that drew a fijine line in the sand. They concluded that the power of an Indian tribe to determine its own membership laws went to the heart of their inherent rights to govern themselves (tribal sovereignty rights). The Court concluded that Congress had stepped over this fijine line when they did not recognize this distinction and instead imposed this federal law without allowing tribes the discretion to make up membership rules to protect their right to determine the composition of tribal membership. To apply the Equal Protection clause of the law to the tribe in this case violated their rights to maintain the “integrity” of their membership rules.

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Nixon’s 1970 Message to the U.S. Congress: “A New Day for the Indians” The principal policy recommendation for Indian self-determination that came out of the 1961 Chicago Conference on Federal Indian Policies, and was formulated by Indian leaders at the conference, later became the building block for President Nixon’s 1970 message to Congress. His message was entitled “A New Day for American Indians,” and, according to Thomas Cowger in his book The National Congress of American Indians: The Founding Years, this message was crafted primarily by Nixon’s domestic policy advisor John Ehrlichman, who was not shy about liberally borrowing from the work of President Johnson, a Democrat. Cowger reported that in Nixon’s 1968 presidential campaign, stafff were looking for efffective ways to compete against the record of President Lyndon Johnson’s vice president, Hubert Humphrey, who represented the Democrats in the 1968 Nixon-Humphrey presidential contest.9 Championing the cause of Indian self-determination, which had fijirst been proposed by President Johnson and Humphrey, Nixon won the votes of Indians and their supporters in the 1968 election. The new president’s White House stafff included

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several people who had a personal interest in Native American issues, such as Nixon’s domestic policy advisor John Ehrlichman and Bobbie Jo Kilberg, who worked on the stafff of Vice President Spiro Agnew. These individuals and their stafff worked behind the scenes with tribal leaders in 1969, including the leadership of the National Congress of American Indians, to develop initiatives for a new, progressive federal Indian policy. Their work came together as a successful platform for Nixon’s July 8, 1970, message to Congress. He addressed his goal of taking the government in a new direction in its relations with the tribes. The 1970 presidential statement embraced the idea of Indian self-determination as a centerpiece for his policy. In doing this, he repudiated the termination era identifijied with his mentor, President Dwight Eisenhower, for whom he had served as vice president from 1952 to 1960. Many scholars and historians have agreed that the era of Indian self-determination began with President Nixon’s 1970 message to Congress, in which he called for a policy of Indian self-determination. He asked Congress to take action on nine specifijic initiatives. These initiatives are listed below along with my commentary on the actions taken by the Congress on specifijic policy proposals, or by executive orders issued by presidents who came after Nixon. The fijirst initiative was to adopt a new Concurrent Resolution to replace (the infamous) House Concurrent Resolution 108. HCR-108 was adopted by Congress in 1953 and called for the “termination” of federal services and ending the federal protections for the Indians’ historic rights based on treaty agreements in the distant past. In his 1970 message, Nixon told the members of Congress that he wanted Congress to adopt a new resolution. He wanted a statement that renounced and repudiated the termination policy and replaced it with a congressional resolution that would “explicitly afffijirm the integrity and right to a continued existence for all tribes and Alaska native governments.” Despite repeated requests by tribal leaders over the previous forty-plus years, no action had been taken by Congress on this 1970 proposal by Nixon, although Congress did pass a law to implement this policy in 1975, “The Indian Self-Determination and Education Assistance Act.” The second initiative was to enact a law that would “empower and authorize tribes to take control of the operation of federally funded bia and Indian Health Service (ihs) administered local government programs.” This was really a call to end the practice of neocolonialism in which offfijicials of the United States government acted as if they were agents of a colonial power that treated the Indigenous peoples of this land as their servants. As the colonial powers of Europe did in their relations with the Indigenous peoples of South America, Africa, and Asia, the Bureau of

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Indian Afffairs saw the tribal people in the United States as ignorant savages who needed to be schooled in the arts of civilization. The Indian Self-Determination and Education Assistance Act was based on Nixon’s recommendations. PL 93-638 was subsequently adopted by Congress in 1975. This new law authorized for all tribes a “right to contract” with the two federal agencies that most interacted with the tribes, bia and ihs, and to enter into contracts to take over the administration of all local governmental services that were then being carried out by the bia and the ihs. The third initiative was to restore to the Taos Pueblo of New Mexico their historic Blue Lake and the sacred Indian lands surrounding it. In December 1970, shortly after Nixon’s message was sent to them, Congress adopted legislation that “restored to Taos Pueblo lands that had been taken in 1906 when President Theodore Roosevelt added these lands to what is now Carson National Forest.” Congress also authorized the return of forty-eight thousand acres that surrounded the Pueblo’s sacred Blue Lake. In signing this bill, Nixon called attention to the fact that the bill did not represent a gift to the Indians by the United States, but rather the return to them, in justice, of what was rightfully theirs. “This bill,” he said, “also involves respect for religion. Those of us who know something about the background of the First Americans, realize that long before any organized religion came to the United States, for 700 years the Taos Pueblo Indians worshipped in this place. We restore this place of worship to them for all the years to come.” The fourth initiative was to recognize the rights of Indian tribes and communities to control their own Indian schools and authorize funds under the Johnson-O’Malley Act to be made available to the tribes and communities. Beginning in the 1880s the U.S. government established a network of Indian boarding schools for the children of the tribal people. BIA agents physically collected Indian children from Indian reservation communities across the land and placed them in schools that were designed to forcibly “assimilate” the students. The Indian children in a boarding school were forbidden, under threat of physical punishment, to speak their own Indian language. They were required to learn to speak in English when they were in the boarding schools and adopt the dress and manners of their “colonizers.” The children were initially trained to be household servants and to work on a farm or ranch in place of the hunting and gathering ways of their ancestors. Congress did respond favorably to this request by increasing funding under the Johnson-O’Malley Act. This initiative was taken primarily by Congressman Sidney Yates, who was chairman of the appropriations subcommittee responsible for the

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“Indian Programs” budget within the Department of the Interior. Congressman Yates also served as one of the six members of Congress on the American Indian Policy Review Commission (aiprc) from 1975 to 1977. The fijifth initiative was to adopt new economic development legislation, which should include fijinancing incentives and coordinated planning for economic development of the reservations. Congress did take action on this Nixon recommendation and adopt the Indian Financing Act in 1974 under the leadership of Congressman Mo Udall. This new law established a federal loan and loan guarantee program within the Bureau of Indian Afffairs, but the funding authorized for this program has always been woefully inadequate in relation to the dimensions of the economic need among the Indian people. Years later, Congress passed legislation in 1988 that would have authorized an Indian development bank, modeled after the World Bank and its successful programs for former colonies. However, the Indian Development Finance Corporation Act was vetoed by President Ronald Reagan after it was passed by Congress, on the grounds that this law would create a new federally charted corporation that was not needed, as according to the president, Congress had already established the Indian Financing Act program in 1974. The sixth initiative was to allocate additional funds for improving Indian health and for training Indians for health careers. The Indian Health Care Improvement Act was adopted by Congress in 1976 in response to this Nixon recommendation, but it was only a temporary measure that needed to be reauthorized by Congress every two years. It was made permanent law when it was reauthorized again in the 2010 Afffordable Care Act. The seventh initiative was to ensure that help was “forthcoming for Urban Indians.” Many Indian families were transplanted to urban areas in the West and Midwest under the bia’s “Relocation Program” that began in the 1950s as part of implementing the termination policy. The program was intended to “aid them to participate in social services and local governmental programs for the poor and disadvantaged.” The Relocation Program was phased out by bia leadership at the end of the 1970s as it recognized that the result was simply to create large communities of “Urban Indians” who were disconnected from their extended families and tribal communities. Federal assistance for these Urban Indian communities has been negligible in relation to their need. The eighth initiative was to create (by congressional action) an Indian Trust Council Authority, an agency independent of the Departments of Interior and

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Justice, which would assure legal representation for the rights of Indians to put to productive use the natural resources on their ancestral lands, and to eliminate existing conflicts of interest within the diffferent federal agencies. The Lands Division in the Department of Justice has responsibilities for representing in federal and state courts Indian natural-resource rights (e.g., fijishing and water rights). But this is also the division that represents federal agencies such as the Department of Agriculture, the Corps of Engineers, and the Department of Energy—agencies whose mission is often in direct conflict with the federal government’s Indian trust responsibilities to safeguard and protect the Indian interests. No action has yet been taken to create an Indian Trust Council Authority by Congress, nor has there been action taken by executive order of the president. The ninth initiative was to create a new position of assistant secretary for Indian and Territorial Afffairs and elevate the government’s duties for Indian afffairs to their proper role within the Department of the Interior. During the Carter administration, Interior secretary Cecil Andrus asked President Carter for his support in using executive authority to create the position of assistant secretary for Indian Afffairs. President Carter agreed, and he nominated Forest Gerard, a member of the Blackfeet Indian Tribe, to the position. Forest Gerard was confijirmed, as a presidential appointee, by the newly established Select Committee on Indian Afffairs in the U.S. Senate in 1977. Each succeeding president has continued in this practice. At the heart and core of the 1970 presidential message was the idea that tribes should take control over the administration of federally funded bia and ihs programs—programs that performed the vital functions of local government on the nation’s 187 Indian reservations. (The number of Indian reservations has since been increased to over 250 due to the success of many tribes in regaining ancestral homelands through federal court litigation and congressional settlement acts.) It took a number of years for the Congress to address this proposal, but Congressman Mo Udall’s Interior and Insular Afffairs Committee in the House did take the lead in developing legislation, and in 1975, the Indian Self-Determination and Education Assistance Act was passed by Congress. Its core provisions stated that tribal governments had “a right to contract and administer” these bia programs. This took away from the bia the ability to simply refuse, for whatever reason they could think of, to enter into any such contract. The act also included within its scope those programs of the Indian Health Service that were delivered at the reservation level. But, as it is said, “the devil is in the details.” In the drafting of federal regulations on the “right to contract,” the bia sought to limit the law’s scope. Tribal leaders fought back and

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eventually did achieve the full intent of this recommendation by having Congress adopt a new law in 1990 that changed the process of “contracting to administer the bia and ihs services” to a process of governmental compacting.10 This chapter is intended to provide the reader with some understanding of where federal Indian policy stood at the beginning of the 1980s. We saw a very signifijicant transition away from the termination era that had begun in the 1950s. The beginning of the Indian self-determination era can be traced to the “Declaration of Indian Purpose” statement drafted by Indian leaders who gathered for the American Indian Chicago Conference in 1961. This gathering took place shortly after the election of John Kennedy, the Democratic candidate for the presidency in 1960. Many of these Indian leaders had taken part in the formation of the National Congress of American Indians at a conference in Denver, Colorado, in 1944, shortly before the end of World War II. This story of the formation of the National Congress is told for us by historian Thomas Cowger in his book NCAI: The Founding Years.11 This group of far-sighted Indian leaders was comprised of individuals who were elected offfijicials of their tribes and individuals who worked in the federal government in the Department of the Interior alongside of the commissioner of Indian Afffairs, John Collier, and the solicitor for the secretary of the Interior, Felix Cohen. The small group of elected tribal leaders came from all parts of Indian Country: Oklahoma, the Dakotas, the Pacifijic Northwest, and the Southwest. The Declaration of Indian Purpose statement and document was presented to President Kennedy, who assigned his vice president, Lyndon Johnson, to follow up with the secretary of the Interior, Stewart Udall. Udall convened a series of meetings with Indian leaders in the years after Kennedy was assassinated in 1963 and Lyndon Johnson succeeded to the presidency. While there were a number of policy proposals put forth, in the view of many students of Indian history, the most signifijicant work was done through the outreach to Indian tribes by the Offfijice on Economic Opportunity and the Community Action Agencies created as part of President Lyndon Johnson’s War on Poverty campaign. These agencies were stafffed by Indian leaders at the community level. We now turn to the work of the American Indian Policy Review Commission.

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CHAPTER 2

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The American Indian Policy Review Commission

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very important initiative taken by the Congress in the 1970s was the creation of the American Indian Policy Review Commission (aiprc). Initiated in 1975 under the leadership of South Dakota senator James Abourezk, the idea for establishing the American Indian Policy Review Commission grew from his experience dealing with the American Indian Movement (aim) and their takeover of bia offfijices in Wounded Knee, South Dakota, in 1973. This action by the aim organization followed the 1972 “Trail of Broken Treaties” march on Washington, an event orchestrated by aim after the headline-grabbing occupation of Alcatraz Island in 1969 through 1970. The takeover of Alcatraz was initiated not by aim but by a group of San Francisco–based Native American community-organization leaders, including Wilma Mankiller, who later became principal chief of the Cherokee Nation in Oklahoma. The Alcatraz takeover grew out of the shared sense of “righteous militancy” prevalent in the 1960s and the attempt of these activist leaders to draw the public’s attention to the cause of Indian treaty rights with the media coverage and publicity that it generated. Abourezk, who was elected to the Senate in 1972, thought that the 1973 aim takeover of the bia offfijices at Pine Ridge was a symbolic gesture, largely the result of years of frustration with the bia and their inability to give any real help to address

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Chapter Two

the great needs of the Oglala Sioux people to overcome generations of grinding poverty. After entering the Senate in January of 1973 and being appointed to serve as chairman of the Subcommittee on Indian Afffairs in the Interior Committee, Abourezk learned of the intransigence of the bia to any reform of their system of neocolonial control over tribal communities, not just in South Dakota but all across Indian Country. He saw that tribes were struggling not only with endemic poverty but also with multiple layers of federal government bureaucracy in the administration of tribal lands and resources. Abourezk had his stafff draft a congressional resolution that called for a new comprehensive study. In the hearings that he later convened in the Senate Interior Committee on his congressional resolution calling for the establishment of a study commission on the “Indian problem,” several of the witnesses, including Vine Deloria Jr., pointed out that Congress had not authorized a review of the U.S. government’s administration of its Indian policies since the “Merriam Commission,” which was established in 1928. The Merriam Commission enlisted the Brookings Institution to conduct the study, and they focused primarily on the problems created by the 1887 General Allotment Act. Vine Deloria had just written a scathing critique of the bia in his book entitled Custer Died for Your Sins.1 Vine based his book on his own fijirsthand experiences dealing with the paternalistic, heavy-handed bia bureaucracy that he encountered while serving in Washington, DC, as executive director of the National Congress of American Indians from 1962 through 1968. He pointed out that the allotment system created by the 1887 General Allotment Act led to the dissolution of tribal trust lands all across the West, adding up to over 90 million acres that were largely stolen from the Indians with the help of the bia. Senator Abourezk came away from his congressional hearing with a conviction that a simple, direct approach was needed: “Let’s just ask the Indians what we should do about all these problems.” The American Indian Policy Review Commission that was authorized by his resolution was comprised of eleven members, six from the Congress and fijive individual Indian leaders.2 The congressional members included three senators: Abourezk, Lee Metcalf of Montana, and Mark Hatfijield of Oregon. The three representatives included Congressmen Lloyd Meeds of Washington, Sam Steiger of Arizona, and Sidney Yates of Illinois. They were joined by fijive private citizens who were well-known Indian leaders from across the country. They included John Borbridge, a Tlingit Indian from Southeast Alaska who had been part of the leadership group that pushed through the Alaska Native Claims Settlement Act (ancsa) in 1971. At the time of his appointment, he was serving as president of the

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Sealaska Regional Corporation, one of the regional corporations created pursuant to the ancsa. Ada Deer, a Menominee Indian of Wisconsin, was appointed based on her career as a leader who spearheaded the Menominee Restoration Act of 1973, a law that reversed the termination of her tribe by act of Congress in 1954. Jake White Crow, a member of the Quapaw-Seneca-Cayuga Tribe, was well known in Oklahoma as an activist and leader among the Oklahoma Indian population. Professor Adolph Dial, a scholar and leader among the Lumbee Indians of North Carolina, was appointed to represent those tribal groups who had not attained federal recognition status. Rounding out the roster of the commissioners was Louis Bruce, a Mohawk-Sioux Indian leader well known for his service as commissioner of Indian Afffairs in the U.S. Department of the Interior during President Nixon’s fijirst term in offfijice, 1969–72. Mr. Bruce was also appointed to represent the so-called “Urban Indian population.” The commission was authorized several million dollars in the 1975 congressional resolution for the two-year study that was intended to lead to recommendations for broad changes in federal Indian policies. In the commission meetings on March 1, May 15, and July 1, 1975, a cross-section of Indian leaders and “policy experts” were appointed to head up eleven task forces to organize and conduct the study. The task forces addressed a broad range of government policy issues, including education; health care; economic development; federal trusteeship; intergovernmental relationships among federal, state, and tribal governments; restoration of terminated tribes; and recognition of unrecognized tribes. There was also a task force on natural resource management, and on tribal government structures and management. Again, Abourezk’s idea of simply appointing Indian people to be in charge of this work proved to be revolutionary and efffective. I was appointed by the commission to serve as a member of the Task Force on Tribal Government after I had made appointments with Congressmen Steiger and Yates asking to be appointed to work on tribal government issues. I explained that my background as an attorney on the Civil Rights Task Force in the Solicitor’s Offfijice in the Department of the Interior from 1972 through 1974 had prepared me to work on tribal government issues. I was joined on the Tribal Government Task Force by Wilbur Attcity, a Navajo and special assistant to Navajo tribal chairman Peter MacDonald and Jerry Flute, chairman of the Sisseton Wahpeton tribe of South Dakota. This experience serving as a task force member and de facto director of the task force gave me fijirsthand knowledge of the process that was used to organize the commission and how it conducted its work. I also had the opportunity to work

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with the core stafff of the aiprc and other task-force members who shared with each other a mutual interest in seeing that the aiprc made strong recommendations for establishing a separate and independent Committee on Indian Afffairs. We followed the work of the Senate Rules Committee in 1976 to reorganize the Senate’s system of committees. In the end, the Rules Committee included Senator Abourezk’s recommendation, based on our work, for a separate Committee on Indian Afffairs. It was important that the new committee be independent of the political influences of corporate and commercial interests that were in direct conflict with the government’s trust responsibilities to the Indian. These recommendations, championed by Senator Abourezk before the Rules Committee, were grudgingly accepted by the committee and then the full Senate in February 1977. They agreed to create the Temporary Select Committee on Indian Afffairs in April with a two-year lifespan. Clearly, what was most important about this step was that the new Select Committee would be separate and independent of the major committees that were focused on representing powerful private interests such as oil and gas, commercial timber, corporate agriculture, and commercial fijisheries. The Policy Review Commission made a serious efffort to hear from Native people all across Indian Country. Congressionally sponsored hearings were conducted in every area of Indian Country, including Alaska, and I recall many meetings where the Indian people shared their valuable life experiences and accumulated wisdom with the commission members and stafff. On one of our trips we gathered in Portland, Oregon, home of the Afffijiliated Tribes of Northwest Indians (atni), who were well known for their storied leadership role against the termination policies—policies that had a direct impact on the Klamath Tribe, Grand Ronde, and Siletz. We were hosted in Portland by the Warm Springs Tribe and Ken Smith, ceo of Warm Springs Forest Products Enterprise, who served on the aiprc Economic Development Task Force along with Peter MacDonald, chairman of the Navajo Nation Tribal Council. Ken invited us to take a drive from Portland across the mountains to their reservation so we could see their Kah Nee Ta Lodge, a showcase vacation lodge designed to make use of the natural hot springs located on their reservation and the beautiful timber harvested on their lands. It was clear to me that these lands were ones that had also been lusted after by big timber companies that were behind the public campaigns leading up to passage of the Klamath Tribal Termination Act. Oregon’s Senator Mark Hatfijield was very supportive of the Confederated Tribes of Warm Springs, and I knew that he had been instrumental in blocking termination proposals directed at this tribe. As Senator Hatfijield was a Republican, he was very

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influential later when the Republican Party elected California governor Ronald Reagan to be their candidate for the upcoming presidential election. Reagan was subsequently elected president in 1980. Senator Hatfijield recommended Ken Smith to serve as a presidential appointee under Reagan, and Ken was appointed to serve as assistant secretary for Indian Afffairs in the Interior Department in 1981. Each of the eleven task forces prepared separate reports that were submitted several months before the fijinal report was due. A core group of stafff drawn from the task forces was then brought together to compile and prepare the fijinal report. The 604-page fijinal report of the commission, submitted to the U.S. Congress on May 17, 1977, included the concerns and recommendations for policy changes shared with the commission and the eleven task forces during the previous months of testimony, as well as recommendations for changes to existing laws and policies. It was my privilege to accompany Senator Abourezk, after he had appointed me to serve as chief counsel to the new Temporary Select Committee on Indian Afffairs, as he personally presented the commission’s fijinal report to Senator Ted Kennedy, then presiding offfijicer on the floor of the Senate. The American Indian Policy Review Commission became a historic project. For the fijirst time in this nation’s history, the legislative branch of our government created an investigative body with the authority to conduct a comprehensive study of federal Indian policy. The charge set forth in the authorizing legislation was to examine the diffferent federal agencies that had a duty to participate in fulfijilling the U.S. government’s trust responsibility. The commission examined how they administered their fijiduciary duties to the tribes and their tribal members with a special focus on the performance of the Bureau of Indian Afffairs. When problems were identifijied at the task-force level, the commissioners and task-force members were charged to put forward recommendations for what needed to be changed and how to make the changes. Recommendations were presented to the commissioners during their offfijicial meetings, where they were examined and debated before being voted upon. It is important to point out that this work was not controlled by partisan political offfijices, nor was it subjected to political influences from within the Congress or the administration. When the commission stafff considered historical parallels to previous government-sponsored studies of the U.S. policies regarding the America Indian people and their lands, the 1928 Merriam Commission Report on Indian Policy, prepared by the Brookings Institution, was a dominant model. The Brookings Institution study was motivated by the massive failure of the federal government’s allotment policy.

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Over 90 million acres of Indian trust lands were taken out of Indian ownership shortly after being allotted in accordance with the terms of the 1887 General Allotment Act. Our examination of the history of this period showed that the Brookings Institution study led directly to the Congress adopting the 1934 Indian Reorganization Act (ira). The ira brought a direct halt to the wholesale allotment of Indian lands and authorized the establishment of an organizational model for tribes to govern themselves. Section 16 of the ira authorized tribes to adopt a constitutional form of local government. Section 17 authorized establishment of tribal business corporations in order to manage their assets with a federal charter that offfered protections against taxation on the tribal corporation’s income. In the years following the enactment of the ira in 1934, the ira tribal constitutions, as they came to be known, were drafted after a model created by the Department of the Interior’s Solicitor’s Offfijice and taken by bia stafff to tribal councils throughout Indian Country for consideration and a vote on adoption. In the opinion shared among commission stafff and our task-force members, the primary benefijit of the Brookings Institution study was that it led to enactment of the Indian Reorganization Act, which brought to a halt the process of allotment by the bia of Indian tribal landholdings. Congress included language in the 1934 Indian Reorganization Act directly amending the General Allotment Law. The historical record was clear: the allotment process primarily benefijited non-Indian land speculators of that historical era. As individual tribal members received (were “allotted”) a parcel of land, they quickly fell prey to swindlers and agents of the land speculators. In the view of commission stafff, and particularly the Tribal Government Task Force that I served on, the goals of the ira to create an efffective system of self-government among the tribes were not successful. The idea of providing a model for a “constitutional democracy,” which was intended to be accomplished by Section 16 of the ira, was the dream of John Collier, the primary author of the Indian Reorganization Act. He was appointed by President Roosevelt in 1933 to serve as the commissioner of the Bureau of Indian Afffairs. Collier’s vision was to establish a system for the creation of constitutional governments in Indian Country as a way for the tribes to organize themselves. However, the ira constitutions that were drafted as a template by attorneys in the Interior Department were largely imposed on many tribes without consideration of their possible impact on the traditional cultural models of tribal governance that the tribes already had. In looking at the years since the ira constitutions were put in place, we identifijied many cases where these tribal constitutions were interpreted to confer autocratic authority in the hands of bia

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agency superintendents and bia area directors without regard to traditional forms of tribal governance. The model template for tribal constitutions drafted by the department contained a key clause. It provided that any tribal constitution adopted under Section 16 of the ira (25 usc 476) and any amendments thereof would all be subject to the “approval” (or disapproval) of the bia. The bia took the position that their approval was a mandatory provision and they would not sign offf on any fijinal drafts or amendments to constitutions that contained language that they did not approve in advance. This assertion of authority by the bia prevailed until the 1980s, when tribes such as the Quinault Indian Nation, under the leadership of Joe Delacruz, challenged this interpretation of the ira. They simply told bia offfijicials and their lawyers in the Solicitor’s Offfijice that they would have to sue the tribe in federal court if they were going to insist on this interpretation. As I recall, when this question was put before the Solicitor’s Offfijice, they refused to go along with the bia’s interpretation of the law. The historical record will show that in the year following adoption of the ira by Congress in 1934, many tribes “routinely” voted to approve the bia model that was presented to them. On the other hand, a substantial minority of tribes either voted “no” on the bia model in referendums arranged by the bia, or simply proceeded to do their tribal business without a constitution. In our opinion, the aiprc studies took on a much bigger task than the Brookings Institution study, which was conducted by a small group of academics and government offfijicials narrowly focused on the impacts of the allotment policies grounded in the 1887 Dawes Act. By comparison, the aiprc mandate was to look at the entire picture of Indian policies and contemporary conditions, problems, and challenges confronting the tribes in the mid-twentieth century. The aiprc study was conducted primarily by practitioners in the fijield of Indian Afffairs and tribal political leaders who served on the eleven diffferent task forces. The congressional representatives were chosen by the Democratic and Republican leaders in the House and Senate, and fijive Indian leaders were selected from those recommended by prominent Indian leaders and national Indian organizations. These commissioners organized among themselves and decided that their primary role would be to hear reports from the commission stafff and the task forces. They would exercise oversight over the stafff and eventually take a vote on recommendations that would be presented for their approval. Managing the aiprc study fell to Ernie Stevens, the stafff director; his legal counsel, Kirke Kickingbird; and professional stafff member Max Richtman. I recall many intense meetings debating what should be the “fijindings” of the task forces

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that were eventually presented to the full commission for further discussion and approval or disapproval. As we moved into the fijinal stages of our work, we learned that a dissenting report was to be fijiled by Congressman Lloyd Meeds of Washington State, who was also serving at that time as chairman of the House Interior Subcommittee on Indian Afffairs. Once the aiprc began its study, Senator Abourezk became totally engrossed in the work of the aiprc. Congressman Meeds primarily took issue with aiprc recommendations supporting the authority of tribes to exercise governmental jurisdiction over their reservation lands, and, pointedly, the assertion that tribes would have authority over non-Indians who resided on tribal lands and that they would be subject to such jurisdiction. He also objected to the report’s focus on the federal government’s responsibility to protect the exercise of Indian treaty rights for fijishing in the Pacifijic Northwest. The work of the commission was concluded just prior to fijinal disposition by the Ninth Circuit Court of Appeals of the historic United States v. State of Washington federal court case. The opinion by the trial court in the case (384 F. Supp. 312) was issued in 1974 by the federal district court judge George Boldt, sitting in Tacoma, Washington. Judge Boldt upheld tribal claims that the Stevens Treaties authorized them to “take fijish in their usual and accustomed places” notwithstanding state effforts to impose their state fijishing regulations. Judge Boldt issued his opinion after trial in the federal district court in Tacoma, Washington, and the Ninth Circuit Court of Appeals upheld the decision of Judge Boldt in 1977, just after the conclusion of the commission’s work. The U.S. Supreme Court subsequently afffijirmed the Ninth Circuit’s opinion in 1979. Judge Boldt’s decision caused a great public outcry and uproar among non-Indian commercial fijishers and sportsmen across Washington State. Members of the public in Washington knew virtually nothing about the fact that there existed a series of treaties that Governor Isaac Stevens had negotiated with nearly all of the tribes in the Territory of Washington on behalf of the United States in 1854 and 1855. Consequently, they were not aware that the Stevens Treaties all contained a standard clause that promised that the Indians had a right to harvest fijish “at their usual and accustomed places.” Further, Judge Boldt interpreted the treaties to conclude that the Indians’ right to take fijish “in-common-with” the settlers of that time meant that they had a right to 50 percent of the harvestable fijish at such usual and accustomed places. Congressman Lloyd Meeds found himself in the middle of this controversy. He retained outside legal counsel to challenge the fijindings of the aiprc stafff. After the other commission members reviewed the fijinal draft and supported

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the wide-ranging recommendations in the report, Congressman Meeds had his counsel submit a dissenting report that advocated opposing views to the aiprc recommendations but were in concert with the views of Washington State attorney general Slade Gorton. As ag for Washington State, Gorton’s stafff had prepared the legal arguments in the United States v. State of Washington case that were contained in the state’s briefs that were presented to the Ninth Circuit and then to the Supreme Court. Slade Gorton subsequently fijiled as a candidate for the U.S. Senate seat then held by Henry “Scoop” Jackson and was elected to the Senate in 1978 in the midst of the ongoing political backlash to the United States v. State of Washington case and Judge Boldt’s 1974 published opinion. Along with my friends and colleagues on the stafff of the aiprc, we took it as a compliment that Congressman Meeds was determined to undermine the fijinal report of the aiprc. This meant that we had touched on important issues and made good arguments on behalf of Indian treaty rights that were taken as a threat by the anti-Indian supporters of Mr. Meeds. However, I also agreed with the criticism of some lawyers based in Washington, DC, that the commission should have been working within a more defijined set of guidelines, and with reference to a policy framework that specifijically took into account the political realities of the time. Too often we heard very idealistic recommendations put forward by task-force members—recommendations that were unlikely to be taken seriously by the Congress, the executive branch of the federal government, or the courts. In my view, this lack of focus on what was politically realistic versus what some, idealistically, thought should be done diminished the impact of our most important recommendations. On the other hand, in our view, the most important result of the commission’s work was that it led to the creation of an independent Committee on Indian Afffairs within the U.S. Congress.

Assessing the Accomplishments of the American Indian Policy Review Commission Over the years following the completion of the aiprc study and the submission of its fijinal report to Congress, I was often asked, “What new laws and federal policies have really come out of the aiprc?” These questions often came with a skeptical tone and were frequently posed by the lawyers for tribes from across Indian Country as well as other Native people who served in the role of a professional to

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the diffferent federal government agencies or Indian organizations. Some that I encountered were more directly critical in expressing their views that the aiprc had been simply a waste of time and money. They clearly thought that this money would have been better spent on their own organizations. As I have reflected on the remarks of such critics many years later, I have come to conclude that, in part, their attitude was shaped by their reaction to the key leaders of the aiprc, Senator James Abourezk and the man he appointed as stafff director, Ernie Stevens. Both of these individuals had well-deserved reputations as mavericks. Senator Abourezk always preferred that his stafff just call him Jim rather than “Senator,” as was the custom in nearly all other Senate offfijices. He was an avowed liberal Democrat from the conservative state of South Dakota. Jim was educated as a lawyer, and his family of Lebanese immigrants operated a trading post in the town of Mission, South Dakota, which is located on the Rosebud Indian Reservation. I think he enjoyed the wheeling and dealing that went with being a U.S. senator, but he was not enchanted with the privileges of political power, and when his six-year term came to an end in 1978, he considered running for another term but concluded that his South Dakota constituents would consider him too much of a “Washington liberal.” I was invited to come to his retirement party in the Dirksen Building, and I will never forget seeing him going around the room, fijilled with other senators and their stafff, wearing a T-shirt with the words “I can’t wait to get out of this Chicken Place” emblazoned on the front. Ernie Stevens, a citizen of the Oneida Indian Nation of Wisconsin, also became my close friend. He was a self-styled radical who made a reputation for himself working in Los Angeles as an advocate for the thousands of Native Americans who had been lured to the big city by the bia Relocation Program. Ernie had been appointed to a relatively high position in the bia by his friend Louis Bruce, who served as commissioner for Indian Afffairs during Nixon’s fijirst term in offfijice (1968–72). Ernie was put in charge of reforming the vestiges of the bia Relocation Program, and he engaged in many battles with the higher-ranking bureaucrats who surrounded him in the Interior Department. He and Jim got to know each other and found that they were kindred spirits. When Jim came up with the idea of creating a congressional commission to do a comprehensive study of the federal government’s treatment of Native Americans, the fijirst person he turned to after Congress passed the congressional joint resolution establishing the aiprc was Ernie Stevens. He appointed Ernie as stafff director of the commission, and Kirke Kickingbird, an attorney from the Kiowa Tribe of Oklahoma, was appointed as legal counsel. Max

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Richtman, who was working at the time as stafff to Congressman Sidney Yates of Illinois, was appointed as professional stafff, and Ernie Ducheneaux as chief clerk on the commission stafff. Senator Abourezk worked closely with Congressman Yates to recruit other members of the Senate and House to serve as the six congressional members of the commission. Once they succeeded at this task, they convened a meeting of the congressional members of the commission to decide who should be appointed as the fijive private citizens called for in the joint resolution that set the terms for the organization and structure of the aiprc. They then convened, as quickly as they could, the full eleven members of the commission, and the commission got to work seeking recommendations for names of those who would be appropriate to serve on the eleven task forces. The task forces were assigned the main work of conducting studies on the range of topics that constituted the fijield of Indian Afffairs. Before I moved from Washington, DC, to go to work on the stafff of the Indian Law Center in Albuquerque in the latter part of 1974, I sought an appointment to the Task Force on Tribal Government. In addition to talking with Ernie Stevens and Kirke Kickingbird, I paid a call on Congressman Yates and on Sam Steiger of Arizona, a Republican member of the commission, along with Mark Hatfijield of Oregon. The other members of the Task Force on Tribal Government who were appointed by the commission were Wilbur Atcitty and Jerry Flute, chairman of the Sisseton Wahpeton Tribe of South Dakota. When we got together as a task force, we appointed Dr. Patricia Zell as our stafff. Patricia was a Navajo Indian and had recently received her PhD in psychology and had been working on the professional stafff of the commission. Each of the eleven task forces were free to design their study based on the experiences that they brought to their work and the contacts that they were able to call upon to assist them. My focus on tribal government grew out of my work in the Solicitor’s Offfijice as an attorney advisor within the Indian Civil Rights Task Force for the fijirst two years after graduating from UCLA law school. Working with Doug Nash, Peter Taylor, and Frances Ayer was a wonderful experience as a form of on-the-job postgraduate education. I learned to appreciate the impacts of the Indian Reorganization Act on how tribes governed themselves, and I gained an appreciation for the needs that tribal governments were experiencing in breaking free from the controls of the bia. I studied the legislation that grew out of President Nixon’s 1970 message to Congress, “A New Day for the Indian.” The Indian Self-Determination and Education Assistance Act (isdea) was adopted by the Congress in 1975, fijive years after Nixon’s historic message. This was the same year that we

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launched our work on the aiprc. As Nixon had stressed in his message to Congress, it was time for the United States to open the door for Indian tribes and enable them to take control of the governmental services that had been carried on by the bia for over a hundred years. The isdea legislation that Congress adopted intended to accomplish this goal primarily by providing for tribes a right to contract for the delivery of these services. Of course, simply providing that tribes had a right to take over the delivery of these local government services with a contract to take them out of the hands of the bia did not mean that the bia embraced this idea and willingly handed over control of these local government functions. It took more than ten years before the Tribal Self-Governance Coalition was initiated by a group of visionary tribal leaders. Their goal was to develop a proposal for Congress to amend the Indian Self-Determination Act, and to authorize the right for self-governance compact agreements to take the place of the contracting process that the bia had tied up with conditions that drastically impacted the intent of the 1975 Indian Self-Determination Act. The Indian Civil Rights Task Force in the Interior Department Solicitor’s Offfijice, which I began to work on in 1972 when I fijinished law school, was also the result of reform legislation that was incorporated in the 1968 Indian Civil Rights Act. As a result, our task force in the Solicitor’s Offfijice took a close look at how tribes were exercising their powers of self-government, and we realized that the bia’s dominance was crippling the ability of tribes to create efffective tribal court systems. This background formed my starting point in developing a design for our Tribal Government Task Force studies. The three of us—Wilbur, Jerry Flute, and I—quickly found common ground and developed a team approach to our work together on the task force. We coordinated with the other task forces to schedule fijield hearings in the diffferent regions of Indian Country, including a trip to Alaska. There we discovered that in 1975, when we began our work on the aiprc, the Alaska Native people were just getting organized in developing a working relationship between the regional business corporations created by the 1971 Alaska Native Claims Settlement Act and the network of nonprofijit social-service organizations that had been set up in Alaska in the 1960s. These nonprofijit organizations were the result of President Johnson’s War on Poverty effforts that authorized the Offfijice of Economic Opportunity (oeo). The oeo created an Indian Desk, and this offfijice supported the local Alaska Native nonprofijit organizations in their effforts to address health-care needs and provide local schools and education services at the Alaska Native village level for the 220

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villages. The great majority of these villages were out in the bush, far from the cities and towns in the sparsely settled State of Alaska. Our aiprc fijield trip occurred only fijive years after the summer of 1970, when I had spent three months in Anchorage as a UCLA law student working for Alaska Legal Services. I could still hear the voices of the Alaska Native leaders telling me that they were simply not going to allow themselves to be subject to the control of the bia as were the tribes in the Lower 48. Today, at the end of the fijirst decade of the twenty-fijirst century, I can attest to the fact that the Alaska Native leaders were successful in this goal, but I am not convinced that the price they paid in the 1971 Alaska Native Claims Settlement Act, ancsa, was worth it. They agreed to take all their lands out of federal trust status and place them under the ownership and control of the twelve regional for-profijit corporations created by the settlement act. The price they paid became crystal clear later when the U.S. Supreme Court decided in 1998 the Alaska v. Native Village of Venetie Tribal Government case (522 US 520). The Court concluded that there was no “Indian Country” left in Alaska after the ancsa law was adopted in 1971. “Indian Country” is a legal term referring to lands over which the Indian tribes in the United States have governmental jurisdiction powers. The village leaders had assumed that while the regional corporation’s lands were subject to state jurisdiction, the much smaller parcels of land surrounding their villages were under the control of their tribal governments.

AIPRC Work Left Undone: Federal Acknowledgment of Unrecognized Tribes As I reflect on the work done by the American Indian Policy Review Commission and its eleven diffferent task-force groups, one of the major areas that became work left undone was to bring closure to the policy of federal recognition for unrecognized tribes. This was viewed from the beginning of our work as a major topic and reflected in the fact that one of the fijive Native leaders who were appointed to the commission was Professor Adolph Dial, a well-known scholar and a member of the Lumbee Indian community located in North Carolina. The Lumbee Indian community was perhaps one of the most prominent and well-known of the unrecognized tribes. The aiprc also established, as one of its eleven task forces, a Task Force on Unrecognized Tribes. This was stafffed by Lumbee attorney Jojo Hunt, and this task force made it their priority to identify the criteria that should be used by the federal government

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in judging the eligibility of tribal groups seeking federal recognition. In doing so, they relied on the expertise of cultural anthropologists, historians, and legal scholars. These experts ended up recommending that the Bureau of Indian Afffairs should create an Offfijice of Federal Acknowledgement, which would have within it an administrative process to review and decide on “Petitions for Recognition,” recognition as a “historic Indian tribe.” Their idea was that the diffferent unrecognized groups of Natives could then put together their case for why they deserved to be acknowledged by the federal government and submit their petition to the Offfijice of Federal Acknowledgement. There was agreement that each petitioning group needed to provide historical evidence that they were descendants from a tribal group who existed in the United State at the time this country was established. They needed to provide evidence that traced the ancestry of the individuals submitting the petition back for the previous fijive generations. They were also asked to show that their ancestors had resided within their Indigenous territory and that they had, during this time, maintained their own form of self-government. However, this administrative process left it to the leadership within the bia to manage a response to the petitions and make a fijinal determination. Many of us believed that Congress should have created, by legislation, a separate offfijice that would be independent of the bia and would use recognition standards set forth in the legislation. In my work on the Select Committee during the fijirst years following the completion of the aiprc fijinal report, we attempted to maintain congressional oversight over the work of the Offfijice of Federal Acknowledgement and held several meetings with higher authorities in the Department of the Interior. The Acknowledgement Offfijice floundered, in my view, and they got bogged down in debates with critics of the whole process. The bia wanted to leave it to each group to marshal their own political support from members of Congress who represented the communities and territories that they claimed as their original homelands, and to proceed with legislation on their behalf. In addition, some of the unrecognized groups had already been working on their land claims for ancestral territories by fijiling a case in federal court. One such group who set a precedent for this method was the Narragansett Tribe from Rhode Island, who succeeded in their court case in 1978, the year after we created the Select Committee on Indian Afffairs. With the help of the newly established Native American Rights Fund (narf was established in 1970), they succeeded in convincing the federal judge in charge of their case that they had a credible claim that they deserved to be treated the same as other tribes. They were able to use their case to put leverage on the Department of Justice to

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negotiate an out-of-court settlement. Their lawsuit was also fijiled at the same time as that of the two tribes in the State of Maine. The Passamaquoddy and Penobscot got together in a combined claim in which they produced evidence that their ancestral territory was so large that it amounted to two-thirds of the State of Maine. This claim made national headlines in the newspapers, and they gained the support of their congressional delegation from Maine, who wanted to settle their claims as soon as possible. Their leverage was based on the fact that the federal court case had the legal efffect of putting a freeze on the ability of title companies to issue a clear title to any lands in the claimed area in Maine. These lawsuits became a huge distraction from the effforts of the Select Committee to bring pressure on the bia to stop stalling on the development of fijixed criteria and establish timelines under which the Offfijice of Federal Acknowledgement would operate. As a result, the bureaucratic process became excessive, and petitions for acknowledgment took years to move through the process. In my view, only a handful of worthy claims have been handled efffijiciently in the thirty-fijive years that the offfijice has been in existence. The list of tribal groups that are on the waiting list for fijinal action on their petition grows with each year, and the process of congressional settlement has now become accepted as the status quo method to gain federal acknowledgment. I recommend that readers with a strong interest in the current status of the federal acknowledgment process review the twelve-page statement submitted to the Senate Committee on Indian Afffairs by Rev. John Norwood on behalf of his own tribe during the committee’s July 12, 2012, oversight hearing on Federal Recognition: Political and Legal Relationships between the United States Government and Indian Tribes. Norwood’s testimony can be accessed through contacting the U.S. Senate Committee on Indian Afffairs. The Senate Committee on Indian Afffairs maintains a list of recent hearings that include this oversight hearing. Rev. Norwood’s testimony and statement contain comprehensive reviews of the history of the federal acknowledgment process and the Obama administration’s position on the issue as of 2012 and how their position negatively impacts his tribe.

Work Left Undone: Tribal Membership and Blood Quantum When we did our work on the Indian Child Welfare Act, the question came up, “Should we not establish in this legislation a clear, defensible criterion for

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determining who is eligible for the protections that would go with the status of ‘tribal membership?’” As we drafted this law that would provide tribes a legal right to go into federal and state courts and to challenge social-service agencies and adoption agencies that were attempting to award permanent custody of Indian children to non-Indian adoptive parents or foster care parents, we struggled with the answer to this question. Those of us who were working on the Task Force on Tribal Government were aware that the great majority of tribes across Indian Country relied on the criterion of blood quantum. This criterion can be traced back to the 1887 General Allotment Act, which called upon the Bureau of Indian Afffairs to establish rules regarding who would be eligible to be awarded an allotment of 160 acres once a tribe’s lands were divided up into allotments. Initially, the bia decided that they would use a ½ degree of Indian blood criterion to separate those tribal members who would be more ready to take up the responsibilities of being an owner of private property. Their reasoning was that those who were more than ½ degree Indian blood would be much more “traditional” in their lifestyle and lacking in their readiness to move away from the ways of their ancestors in order to be ready to take on this new role. This ½ degree rule was adjusted to a ¼ degree rule twenty-fijive years later. Apparently, this reflected the bia’s experience that there were many more Indians who were ready to take on this role of land ownership, or the bia’s understanding that because times were hard, there were many allotment holders who wanted to be awarded an allotment of 160 acres. Nearly forty years after the General Allotment Act was passed, Congress enacted the Indian Reorganization Act of 1934 (ira) for the purpose of bringing an end to the allotment of tribal lands. Congress took this step when they were faced with the evidence that the allotment laws led to massive losses of tribal lands, leading to widespread poverty across Indian Country. We learned in our task-force research that the bia applied their experience with a lower blood quantum to the drafting of tribal constitutions as called for in Section 16 of the ira, beginning in 1934. They wrote into the tribal constitutions that they drafted for adoption, by a referendum vote of tribal members and later, a vote of tribal governing bodies, a criterion that individual tribal members needed to show that they were a ¼ degree blood of the tribe in which they sought membership. Consequently, when we drafted the language found in the Indian Child Welfare Act, we said that the child in question had to either be an enrolled member of a federally recognized Indian tribe or be “eligible for membership.” This meant that the child’s representatives needed to show evidence that the child was at least ¼

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degree blood of the Indian tribe that was asserting custody. Less than 50 percent of tribes chose to come under the Indian Reorganization Act, and many wrote tribal constitutions that were not submitted for approval by the bia under Section 16 of the ira. However, our research at the time we did the Task Force on Tribal Government report in 1976 revealed that the great majority of tribes adopted a membership rule found in the bia model constitution. This provided that parents or legal guardians of a child needed to provide evidence of tribal ancestry that the child was “at least ¼ degree blood” of the tribe in question. It has now been nearly thirty-eight years since we drafted our task-force report for the American Indian Policy Review Commission, and over the intervening years there has been a high degree of intermarriage among the population of U.S. tribal Indians. Each time a tribal member who possesses ¼ degree of the blood of their own tribe marries a non-Indian, or an Indian who is not of their own tribe, the degree of tribal blood of their descendants will be less than ¼. These descendants will not be eligible for membership in their tribe. This is creating an increasingly serious problem all across Indian Country. During the years that I have been serving as a member of the faculty of Evergreen State College in the Master of Public Administration in Tribal Government program, my tribal graduate students have studied and remarked on this growing problem for Indian Country. The New York Times carried several articles in 2010 and 2012 covering membership disputes among tribes. Some tribes have denied enrollment petitions by current tribal members for their children who have been judged not eligible for membership because they do not meet the “¼ degree of tribal blood” criterion. In the more highly publicized disputes, eligibility for membership is directly related to eligibility for “per capita payments” when the tribe in question is a successful gaming tribe, or one whose tribe is located in proximity to an urban area where there is population density of “recreational gambling” customers. Often this means that the tribe is small in population, and the amount of the per capita payment—that is, a share of gaming revenue coming to the tribe from their successful tribal casino—is over a thousand dollars a month. It is simply a reality that tribes with a large population are ones who have managed to survive the historic onslaught of settlers during the opening of the West through homesteading laws, and have survived because they live in isolation from densely populated regions of the country.

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Work Left Undone: A Tribal Development Bank As I discussed earlier, while president of the American Indian Bank I was deeply involved in drafting legislation to create the Indian Development Finance Corporation, which was intended to serve as a tribal development bank. This proposal came out of the work of the Task Force on Economic Development of the aiprc, and is what I am calling “unfijinished business” from my years working for Senator Inouye. The critical element of this proposal is that this legislation would create an institution that would serve all tribes who wished to be part of it as a shareholder, a part owner. This would become their own development bank as soon as 10 percent of the authorized stock has been purchased, and the initial shareholders would be authorized to convene a shareholders meeting and elect their own governing board. The board could then hire the management and operate this development bank as their own, able to fulfijill their own goals for development of their tribal economies. Further, the governing board would be able to adopt rules to declare other Indigenous Nations eligible to purchase stock on the same basis as U.S. tribal Nations. Thus, the Tribal Development Bank would become an International Indigenous Nations Development Bank. The bank would also have the ability to establish its own business research offfijice within the bank to identify new markets for the products of their shareholders, and even development of new tribal products for the world marketplace. This was the idea of the visionary tribal leaders who served on the aiprc Task Force on Economic Development in 1975–77. I believe this is a powerful vision that has much potential as we proceed into the twenty-fijirst century.

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CHAPTER 3

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The AIPRC Recommends That an Independent Committee on Indian Affairs Be Established in the U.S. Congress

O

ver the years since it was established in 1977, I have concluded that the work of the U.S. Senate Committee on Indian Afffairs has been the major accomplishment of the American Indian Policy Review Commission. The aiprc leaders came to understand that Congress needed to address its conflicting interests between upholding the federal government’s duties as a trustee to the nation’s Indian tribes, duties tied to historic treaty commitments, and the interests of their own “corporate” constituents. The commission members saw an abundance of evidence over the two years of our investigative work that these two interest groups are often in direct conflict with each other. They also saw the stark contrast between the views of most members of Congress and the views of tribal leaders. We on the commission stafff knew that members of Congress based in the Mountain West and Great Plains regions often see themselves as representing, predominantly, the interests of powerful private business groups. These are business interests who have used, developed, exploited, and gained great corporate and personal wealth from the natural resources on our public lands. Whereas the Indian treaties, as recognized by Judge Boldt in his opinion in the United States v. State of Washington court case, have been interpreted by federal courts to create an obligation that Congress must look after the interests of Native people as their

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trustee. The entire U.S. government shares in the role of trustee; it is not just the executive branch of the government that is a trustee. This diffference is critically important, and it was these conflicting interests that the aiprc saw itself addressing in their recommendation for an “Independent Committee on Indian Afffairs” at the end of our two-year study. Senator Abourezk, when he later became the fijirst chairman of the Temporary Select Committee on Indian Afffairs, took immediate action on this commission recommendation to address the Congress’s conflict of interest. He focused on the Senate’s Committee on Interior and Insular Afffairs as a prime example of these conflicting interests. Because he served both as the chair of the aiprc during its two-year study and, formerly, as chair of the Senate Subcommittee on Indian Afffairs within the Committee on Interior and Insular Afffairs, he was very aware of the issues of federal Indian policy that came before the subcommittee. He saw the direct conflicts between their congressional oversight of Indian trust responsibility duties and their sense of obligation to support the business and commercial enterprises in their own state. Jim also recognized that the Interior Department was charged with negotiating lease agreements for oil and gas development and mining of valuable minerals on public lands. The Department of Agriculture possessed authority to oversee corporate farming and ranching on public lands, and widespread commercial forestry development in national forest lands. While these federal agencies were not specifijically assigned the responsibility to serve as trustee of Indian tribal rights, the Department of Agriculture’s actions often directly conflicted with the government’s duty as a trustee toward the tribes whose lands were greatly impacted by such corporate development. The way we saw the law, both the Department of Agriculture and the Department of the Interior shared responsibility to safeguard these Indian trust lands and resources, and, at least, had a duty to “do no harm.” Senator Abourezk knew that very important changes were being proposed in the reorganization of the U.S. Senate’s committee system in the fall of 1976 following the elections of that year. He planned to make a proposal to address this conflict of interest before the Senate Rules Committee, which was chaired by his friend Bob Byrd, the senior senator from West Virginia. Senator Byrd was known at that time as one of the most well-versed experts on the Senate’s parliamentary rules of internal governance. Although Senator Byrd was not known as a friend of the Indians, Jim knew that he was a man committed to the art of political compromise. Senator Byrd agreed to support the Abourezk motion in the Rules Committee, and

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the Rules Committee adopted his proposal to remove the Subcommittee on Indian Afffairs from the newly created Energy and Public Lands Committee and establish a new, independent Temporary Select Committee on Indian Afffairs in the U.S. Senate. When those of us who were on the commission stafff later heard from Jim Abourezk of the “horse trading” that had taken place between him and Senator Byrd and other members of the Rules Committee, the Indian leaders and stafff working on the aiprc were extremely grateful to Jim for the personal commitment he showed in pushing Byrd and other senators to accept this recommendation. For the fijirst time in the history of the United States, legislative jurisdictional authority over Indian Afffairs in the Senate was removed from a committee dominated by representatives of states that were home to very powerful groups, such as the oil and gas industry, the commercial timber industry, and commercial, corporate agriculture. Their interests had held sway without any “checks and balances” process at work for too many years as they took votes on legislation in ways that prevailed over the interests of U.S. tribes. The responsibility of the federal government to serve as a “trustee” over Indian lands, Indian water rights, Indian timber resources, and treaty-protected fijishing rights was virtually ignored by all the federal agencies except for the bia. It was a measure of Senator Byrd’s influence and Jim’s role as an advocate that this proposal was not directly opposed by these corporate interests. The Abourezk proposal was quietly folded into the Rules Committee’s “Resolution on Reorganization of Senate Committees” and their legislative jurisdiction and adopted without floor debate. We understood that the members of the Rules Committee had agreed in part because it was only to be a temporary committee with a two-year lifespan. For the fijirst few months after this resolution of the Senate Rules Committee was adopted in April 1977 and the “Temporary” Select Committee on Indian Afffairs was in place, Ernie Stevens served as stafff director while I began my duties as chief counsel along with Max Richtman as professional stafff. The resolution originally limited the lifespan of the temporary committee to only one session of Congress (i.e., two years), and it needed to be reauthorized every two years. This pattern persisted until 1987, when Senator Inouye assumed the chairmanship and asked the Rules Committee to delete this “temporary” limitation. Max Richtman, who served as professional stafff to the aiprc, represented Congressman Sidney Yates of Illinois. Sidney Yates also served as a senior member of the House Appropriations Committee, where he was chairman of the Subcommittee for Interior and Related Agencies. His subcommittee was responsible for appropriating the funding needed

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for the budget of the Bureau of Indian Afffairs within the Department of the Interior as well as other agencies within the Interior Department and the Smithsonian Institution. Mr. Yates, who was Jewish and was known to be a great friend of the Indian, equated their terrible treatment by the U.S. government to the treatment of Jewish people in Europe under the horrible Holocaust inflicted on them by Nazi Germany prior to and during World War II. Congressman Yates and I became personal friends over the years, and his personal assistant, Mary Bain, would always take care to give me time to see him when I was living in Albuquerque and came into town for aiprc meetings or on other business. Max was a capable stafff person who was familiar with the organization of congressional committees as well as the operations of the Bureau of Indian Afffairs. He became my right hand as lead professional stafff to the Temporary Committee, while the chief clerk to our fledging committee was the woman who had been clerk for the Subcommittee on Indian Afffairs of the Senate Interior Committee, Ella Mae Horse. Ella Mae was a member of the Comanche Tribe and previously worked for Forrest Gerard when he served as stafff to Senator Jackson while he was chairman of the Interior Committee. Forrest Gerard was a member of the Blackfeet Tribal Nation of Montana, and he regarded me as his protégé as our tribes were neighbors in our home state of Montana. When Jimmy Carter of Georgia was elected president in 1976 and assumed the presidency in January 1977, he soon appointed Forrest as the fijirst person to ever serve as assistant secretary for Indian Afffairs within the Interior Department. Prior to this time, the top position within the department with the responsibility for administering the Bureau of Indian Afffairs was the commissioner for Indian Afffairs. The commissioner’s position was also a presidential appointee but occupied a status that was commonly understood to be a signifijicantly lower rank than an assistant secretary. President Jimmy Carter had been persuaded to take this step due to the political activism of many Indian political leaders during the 1976 presidential campaign, including Suzan Harjo, who at that time served with the American Indian Press Association. La Donna Harris, a member of the Comanche Tribe and wife of Oklahoma senator Fred Harris, also actively supported Jimmy Carter. While Fred also campaigned for the presidency, competing in the 1976 Democratic primary contests against Jimmy Carter, he withdrew from the campaign shortly after the fijirst primary election in New Hampshire. My wife Sharon became active in Fred’s campaign while we were living in New Mexico. Fred ran as a populist opposing the

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Washington establishment, and I remember witnessing his campaign while visiting the Dartmouth College campus in January 1976. He was driving in a van with some of his supporters through the streets of Hanover, New Hampshire, shouting into a microphone, “It is time to get the rich offf of welfare.” No doubt, Indian Afffairs as a fijield of political advocacy had achieved a heightened status in the eyes of the public, at least in Washington, DC, as a result of the work of the American Indian Policy Review Commission in the year of the 1976 presidential election. The Senate reorganization went into efffect in April of 1977, and I was offfered the position of chief counsel to the newly created Select Committee. At that time I was on the stafff of the Indian Law Center at the University of New Mexico in Albuquerque and working with Sam Deloria, director of the center. Sam also served on the aiprc Task Force on Federal Administration policy issues. I was one of three members of the Task Force on Tribal Government along with Wilbur Atcitty and Jerry Flute. I spent my time organizing our research, which included a series of task-force hearings around Indian Country as well as time in the Interior Department library and archives. I was given stafff assistance by Patricia Zell and Michael Cox. Patricia and Michael spent a year of this time, 1976, living in Santa Fe, New Mexico, which allowed us to collaborate on writing the fijinal report of the Task Force on Tribal Government while they were in Santa Fe and I lived in Albuquerque. We fijinished our report in a timely manner and then joined a team of professional stafff from the diffferent task forces to organize and write the aiprc fijinal report. I remember several intense months of work at the beginning of calendar year 1977 after we submitted our task-force reports fijinalizing the outline of recommendations coming from the eleven task forces to be included in the fijinal report. Due to this level of involvement, I also participated in the effforts to prepare and provide justifijications for the creation of an independent Indian Afffairs Committee. We helped draft testimony that was submitted to the Senate Rules Committee, as we had determined that the leadership in the Senate was moving on a reorganization of the diffferent committees and there would be adjustments to the subject-matter jurisdiction that would be assigned to each Senate committee. We concluded that our best chance was to propose a temporary Select Committee for the jurisdiction that would be taken from the newly created Senate Energy and Natural Resources Committee. We orchestrated a lobbying campaign directed at key members of the Rules Committee at the same time that we were fijinishing fijinal drafting on the aiprc report. The fijinal report was submitted on May 17, 1977, to the majority leader and his assistant leader, who at that time was Ted Kennedy of Massachusetts.

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Senator Abourezk was appointed chairman of the Temporary Select Committee, and for the fijirst two years the new committee included Senator Mark Hatfijield, who, after his service on the aiprc, continued to help as the ranking minority member of the Select Committee. The other senators included Lee Metcalf of Montana and Howard Metzenbaum of Ohio, both Democrats, and Dewey Bartlett of Oklahoma, a Republican. Of the fijive members, three were Democrats and two Republicans. Subsequently, Senator Hatfijield was appointed to become vice-chairman of the Senate Appropriations Committee, and Senator Dewey Bartlett of Oklahoma then became the ranking Republican. Dewey Bartlett was a good man who supported the Indian cause but was often skeptical about Jim’s approach to being chairman. I also had the benefijit of being able to hire key stafff for the Select Committee, some of whom carried over from their service on the stafff of the Policy Review Commission. I was happy to be able to hire Pete Taylor, who had served on the task force responsible for reorganization of Title 25 of the U.S. Code. He became our general counsel, and Patricia Zell became professional stafff to the Select Committee until she started law school at Georgetown University. Michael Cox became Senator Bartlett’s stafff and minority counsel. Another person I had come to greatly admire for his vision and commitment to Native people is Ernie Stevens of the Oneida Nation of Wisconsin. Ernie had been serving as director of community relations for bia Commissioner Louis Bruce when he was asked, in 1974, by Senator Abourezk to serve as stafff director of the American Indian Policy Review Commission that would begin in 1975. Abourezk subsequently asked Ernie to serve as stafff director of the newly created Temporary Committee for only a short time before he went to work for Navajo Nation chairman Peter MacDonald as director for Energy Development at their offfijices in Window Rock, Arizona. When Ernie left to take this job, I simply took over his duties, but never changed my job title from chief counsel. I have fond memories of those fijirst intense days of organizing a new committee in the Senate, appointing a complement of stafff and setting up new offfijices in the Dirksen Senate Offfijice Building on the 6th Floor. We were able to borrow a set of committee rules from the Senate Interior Committee that were used by the Subcommittee on Indian Afffairs. These came with Ella Mae Horse, whom I had hired to serve as our clerk to the Select Committee. An agenda was drawn up for the fijirst business meeting of the new committee in April 1977, and I remember assembling our stafff and a court reporter in a committee hearing room that was down the hall from Senator Mark Hatfijield’s offfijice. When we were not able to establish a quorum for our fijirst meeting (a quorum required three of the fijive senators who had been

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appointed to the committee), our chairman, Jim Abourezk, just announced that we would go down the hall to Senator Hatfijield’s offfijice. Along with Senator Metzenbaum, our newest member, we did just that, and a surprised Senator Hatfijield welcomed us to take a seat in his spacious offfijice and the meeting was convened. The committee rules were approved and a legislative agenda was adopted, primarily based on a number of bills that had already been referred to our committee by the Senate parliamentarian. We also noted that key recommendations of the aiprc would be studied for proposals that could be introduced as new legislation. For subsequent meetings it became easier to establish a quorum, as word had gone out to the other senators on our committee that if you were not careful, you would fijind yourself hosting the meeting in your offfijice.

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CHAPTER 4

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The Indian Child Welfare Act of 1978

T

he number one item on our agenda for the Temporary Select Committee on Indian Afffairs, under the rules and plans adopted in our fijirst business meeting in Senator Hatfijield’s offfijice, was to draft a bill that would address a high priority of the aiprc, that is, legislation that would become the Indian Child Welfare Act. We also took up the task of drafting authorizing legislation for the tribal community colleges, and legislation that consolidated authority for the Indian housing programs within the hud agency. While not included in the aiprc recommendations, two historically important pieces of legislation, the Maine Indian Land Claims Settlement Act and the Ak-Chin Indian Water Rights Settlement Act, were referred to the committee as well. Both of these bills had been introduced at the end of the previous session of Congress, but there was no time to take them up and conduct the necessary hearings. I assigned Pete Taylor to do the work of drafting the Indian Child Welfare Act (icwa), and he was greatly assisted in this efffort by his friendship and long relationship with Bill Byler, the executive director for the Association on American Indian Afffairs (aaia). The aaia is a private public-interest organization established in New York City in the late 1940s by Felix Cohen, an attorney who formerly served as solicitor for the Department of the Interior in the days when Franklin D. Roosevelt

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Chapter Four

was president. Cohen was a scholar of the history of U.S. relations with the Indian tribes, and he took it upon himself to write a historic legal Treatise of Federal Indian Laws that was published initially in 1944 as the Handbook of Federal Indian Law by the Department of the Interior. Because the handbook was produced from within the department, it was regarded as an offfijicial statement of the administration’s views on the range of policy issues included in the handbook. Perhaps the most critical questions addressed in the Cohen Handbook, as it was called, dwelt with the doctrine of inherent, indigenous tribal sovereignty. This doctrine focused on the rights of U.S. tribes to govern themselves and to exercise governmental authority over their territory—territory that was comprised of their lands being held in federal trust status. This was a critically important legal doctrine defijined by Felix Cohen in the handbook. After leaving government service and retiring to work as a lawyer in private practice in Washington, DC, Cohen became a partner in the law fijirm Fried, Frank, Harris, Shriver and Kappelman. This fijirm served as legal counsel to the recently established aaia organization beginning in 1948, when Cohen retired from the Department of the Interior and joined the fijirm. The aaia organization became a prominent activist organization on behalf of the rights of Native American children in the 1960s. The aaia worked on these issues for years, engaging in studies that documented the abusive practices of forced adoption of Indian children imposed by state social-service agencies and private adoption agencies. Bill Byler and his associates brought this work to the attention of the aiprc stafff and testifijied at several of the commission hearings. He helped formulate recommendations for efffective legal strategies that could be translated into legislative proposals. The key ideas and legislative recommendations that the draft Indian Child Welfare Act focused on were proposals to establish requirements and standards for the state courts that normally handled child-custody proceedings. The icwa provided that all state court proceedings dealing with the rights of Indian children should be opened up to legal intervention by lawyers representing the tribes where the lost children had rights of membership or citizenship. The icwa bill provided that when such legal representatives of the tribes asserted their rights to intervene in state court custody proceedings on behalf of such Indian children, they were entitled to assert a right of parens patriae, or to step into the shoes of the parent. This would give them the opportunity to challenge petitions the state social workers were used to fijiling with the state courts asking that parental rights to the children should be severed. Such social workers were accustomed to making the argument that “the child’s best interests” would be

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served by removing the child from the poverty-stricken homes commonly found on Indian reservations where residents faced unemployment rates that exceeded 50 percent. The state social workers were also accustomed to producing evidence of poverty and alcohol abuse leading to conditions where children were left with other family members for extended periods of time. The parents either were offf the Indian reservation seeking work or had turned to abuse of alcohol as a way of escaping their depressing conditions. The aaia studies showed that the social workers operated on the assumption that the cultural environment in which the tribal children existed was simply “unacceptable.” In their opinion, such Indian homes were simply not a proper home environment with its community tolerance for parents routinely leaving their children with members of an extended family, grandparents, aunts, and uncles. Moreover, they alleged that it would be better if the child could be placed with the network of state-licensed foster-care homes of middle-class non-Indian couples and families where the child could learn to speak English in their home and be acculturated to live like they were members of a typical American middle-class family.1 Private adoption agencies were also accustomed to getting preferred treatment from state social-service agencies in their effforts to identify Indian children who had been placed in state-sponsored foster homes. They proposed to place them in the homes of well-meaning non-Indian families who thought they were doing a good deed by taking in a poor little Indian child or baby and legally adopting them to raise them in their own culture and society. The aiprc stafff and commissioners were persuaded by this evidence that this amounted to a practice of state-sponsored theft of Indian children from their families, and that it should be stopped as soon as possible. They were quick to support the aaia recommendations that the best strategy would be to defijine a legal right of intervention on behalf of the families of such Indian children who had the misfortune of being caught up in this web of state-sanctioned policies and practices. The social workers had concluded that the long-term aim of this state-sanctioned system was to bring the fruits of Euro-American civilization to Indian Country, one child at a time. Naturally, representatives of state-government social-service agencies did not see this as objectionable from a public-policy perspective. They resisted the idea that it was a practice that was actually oppressive and objectionable from the point of view of social policy or public policy.2 Upon getting the new Indian Afffairs Committee organized, I was glad to be able to assign this area to our newly appointed general counsel, Pete Taylor. I had

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Chapter Four

gotten to know Pete when I fijirst came to Washington, DC, right out of law school. I joined the stafff of the Indian Civil Rights Task Force in the Solicitor’s Offfijice of the Department of the Interior in the summer of 1972. Pete and Frances Ayer were career stafff attorneys who had been assigned to create an offfijice to undertake a revision of the Cohen Handbook of Federal Indian Law. This project was called for by provisions in the Indian Civil Rights Act by the Congress in 1968. As a young, new law-school graduate, I learned that the Indian Civil Rights Act had been a project of Senator Sam Ervin of North Carolina. He had conducted hearings several years prior to 1968 documenting what he believed to be the defijiciencies in the legal framework and practices of tribal court systems. At that time, they were referred to as the Courts of Indian Offfenses, created under the authority of the Bureau of Indian Afffairs. The bia-established courts all used a code that was drafted by the Interior solicitor and published in the Federal Register. The icra also contained a provision calling for an update of the Handbook of Federal Indian Law that was originally drafted by Felix Cohen in 1944 and 1948.3 The 1948 Cohen Handbook was considered the most authoritative legal treatise ever published on the complex fijield of federal Indian law, but it had been redrafted by a team of lawyers in 1958 during the days of the Eisenhower administration, a product of the termination era. This group of lawyers had rewritten the text of the handbook to make a series of fundamental, unsupported changes to Cohen’s key principles, including recognition of the inherent rights of sovereignty of Indian tribes—rights founded on the Marshall Trilogy of cases fijirst decided in 1823 through 1834.4 Pete and Fran hired me and Doug Nash, a member of the Nez Perce Tribe, to assist in the Cohen Handbook revisions. During my time at UCLA law school, I had gained a reputation as a student scholar due to the law review article I had prepared and published in the 1972 University of Montana Law Review. My article on the “Jurisdictional Relationships between State and Tribal Courts” was considered groundbreaking. Three years later, in 1975, Pete had been assigned to serve as a key member of the Federal Law Revision Task Force for the aiprc, and I knew that he was largely responsible for drafting the fijinal report of the aiprc in January and February of 1977. Pete had become acquainted with Bill Byler and his work with the Association on American Indian Afffairs regarding the cause of Indian children. With the assistance of his legal counsel, Byler had persuaded Pete that their recommendations to create standards and procedures to cover the disposition of Indian children in state courts could be turned into a bill that our new committee should consider a priority.

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I was glad to support this idea, and it was an easy step to persuade our chairman Jim Abourezk that this should become one of our most important priorities. I remember spending hours and hours with Pete and Byler going over various drafts to get the bill ready to be introduced. Pete knew very well that this proposal to authorize a legal right on behalf of Indian tribes to challenge the well-established practices of the states would be strongly resisted by state attorneys general across the West. They would be quick to foresee that their client agencies would have to defend an indefensible practice that had resulted in breaking up thousands of Indian families. Pete did an outstanding job on the legislation and organized a series of hearings for us, working closely with the House Interior Committee and their legal counsel Frank Ducheneaux. We were very fortunate to have a champion on behalf of the tribes and their cause in Congressman Mo Udall, who became the chairman of the House Interior Committee in 1973, when he had hired Frank. Amendments were negotiated between our two committees to create a framework of laws defijining tribal court jurisdiction that could be exercised if they decided to intervene to assert the interests of Indian parents before state courts. One of the most efffective advocates among the tribes who brought their testimony forward was the Puyallup tribal chairperson at that time, Ramona Bennett. She had a fijiery manner and forceful way of speaking about the theft of Indian children that caught the attention of our committee members and persuaded them that they should not agree with the claims being made by state attorneys general that this law would be too disruptive to their systems. We knew that they would also be challenging the competence of tribal courts stafffed by judges who, for the most part, were not trained in law school but brought a wealth of life experiences to bear in their exercise of judicial responsibilities. I recall that there were many intense days of work on the Indian Child Welfare Act during the summer and fall of 1978. At the conclusion of our work, I had the privilege of assisting my chairman on the floor of the Senate as we presented our justifijications for this extraordinary recognition of tribal rights. The stage had been set by Mo Udall when he brought the icwa bill up in the House of Representatives, and the House had sent us a polished piece of legislation that incorporated all the changes we were also seeking. My job was to help Senator Abourezk counter and respond to arguments of senators who felt obliged to defend the prerogatives of their states’ attorneys general. Working closely with Chairman Udall and Frank Ducheneaux, we were able to have the bill brought up at the very end of the legislative session, right after the House had passed our combined work product.

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We made our arguments at 11:00 p.m., just before the Senate adjourned for the year. I had been sitting in my offfijice with Pete watching the proceedings in the Senate on closed-circuit television when Senator Abourezk called me on the phone from the floor of the Senate. “Alan,” he told me, “you have to get down here right now because they are going to bring our bill up and I need your help.” I ran down the hallway and took the elevator to the basement, where I hopped on the underground trolley that took me to the basement of the Capitol building. I bounded up the stairs and was able to get a pass to go onto the floor of the Senate and sit next to my boss. He signaled to the presiding offfijicer that he was ready, and the Indian Child Welfare Act was called up. My senator engaged in a debate with about twenty other senators, most of whom were opposing the bill, and whenever he needed my help he would lean over and I would scribble a note to him with a rebuttal of their arguments. They were claiming that this new law would be too disruptive for the wonderful social workers in their state who were only trying to fijind a good Christian home for poor, abandoned Indian children. I remember scribbling a note to Jim that our committee hearings had documented how this was tearing apart Indian families and had been doing this for years just because their tribe was not able to intervene in the state courts conducting child custody hearings. Pete Taylor and I had summarized the data on this child abuse and the impact on Indian families across the country. This debate took about fijifteen minutes, and when the vote was called, enough other senators came to the floor of the Senate to establish a quorum and cast their votes. I recall that we won that vote with a slim majority of about four or fijive votes. Afterwards, Pete and I had fun celebrating this victory till the wee hours.5

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CHAPTER 5

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The American Indian Religious Freedom Act

T

he other major piece of legislation that we succeeded in having Congress pass in our fijirst year after the aiprc report was submitted was the 1978 American Indian Religious Freedom Act. This law also came out of the work of the aiprc and testimony presented to the commission about the history of abuse where federal government authority was used to outlaw religious practices and teachings of traditional Indian leaders for many years. One of the powerful champions of tribal rights in this cause was Suzan Shown Harjo, who had recently been appointed as a special assistant to Assistant Secretary Forrest Gerard. Suzan had worked for years with the traditional leadership of the Cheyenne and Arapahoe Tribes as well as the Lakota. She knew that they were seeking protections under federal law for their most important sacred sites known to practitioners of traditional religious ceremonies and customs. Suzan had also been a political activist in the Democratic Party while she worked for the Native American Press Association, and she had met with candidate Jimmy Carter during the presidential campaign in 1976. She briefed him on the many problems Native American religious leaders encountered protecting Indian religious freedoms. Governor Carter not only made a commitment to support this cause but he also offfered to help Indian people to protect their rights if he were elected.

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After his election in 1976, Carter appointed former Idaho governor Cecil Andrus to serve as Secretary of the Interior, and Andrus agreed to upgrade the position of the commissioner of Indian Afffairs by creating a new position of assistant secretary of Indian Afffairs. He recommended for Senate confijirmation Forrest Gerard, a member of the Blackfeet Indian Nation, who had been serving as stafff for Indian Afffairs within the U.S. Senate Interior Committee under Washington State senator Henry “Scoop” Jackson. Forrest and I had become acquainted during my work on the aiprc, and he was supportive of our effforts to create the new and independent Select Committee on Indian Afffairs. Once he was successfully confijirmed by our new committee, Forrest appointed Suzan Harjo as one of his new special assistants.

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The Right to Use Peyote Medicine by the Native American Church Suzan and I began to work closely on legislation to provide protections for practitioners of Native religious traditions and ceremonies and to preserve their sacred sites. I also worked closely on this project with Henry Old Coyote, a member of the Crow Tribal Nation who had been appointed as stafff to Senator John Melcher of Montana. Henry was a lifelong member of the Native American Church. He approached me shortly after he was appointed to the stafff to explain that he had asked Senator Melcher to be appointed to the committee stafff because he had a mission. He explained to me that he was only there to seek protection under the law for the rights of the Native American Church members to use their peyote medicine in their ceremonies. I knew that peyote had become known as a hallucinogenic, popularized during the 1960s by the so-called hippie generation. Long before the hippie generation discovered this derivative from the cactus plants of the Southwest, the peyote buttons had been used by the Native American Church in their sacred ceremonies. Henry told me of the history of difffijiculties they had been experiencing, in recent decades, with drug enforcement authorities who had made it their practice to interdict their trade routes to acquire and transport peyote buttons from Mexico. I told him that I thought the terms of the American Indian Religious Freedom Act, as we drafted it, would be able to provide the desired protection under federal law. In general, we spoke of the problems Natives had experienced engaging in ceremonies that were private events, not open to the general public. We were told that difffijiculties had arisen, and it was necessary to maintain protections for those

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who might have allergies to substances in the environment surrounding these events. In our hearings on the bill, state and federal authorities were assured that what was contemplated was not a danger to the participants, nor did it endanger any members of the public who might attend. Unfortunately, in our work on the American Indian Religious Freedom issues, we were greatly dismayed to discover that we would not be able to provide efffective legal protections for sacred sites within our legislation. Lobbyists for the oil and gas industry, the commercial timber industry, and the coal and hard-rock mining industries mobilized when they got word of our legislative proposal and demanded a meeting. They explained that they would strongly oppose our provision that conferred a “right to sue” in federal court on behalf of Native American traditionalists and their attempts to protect public lands against harmful commercial developments. The “right to sue” provision was simple language that provided that federal courts possessed jurisdiction over claims that arose when such commercial developers were shown to be engaging in the destruction of sacred sites when they acquired leasing rights from the diffferent federal agencies. The industry lobbyist had come to the conclusion that many of the sacred sites we desired to protect, as we discussed in our information packets distributed during our hearings, were also located on public lands. It was brought out in the hearings that many sacred sites were located not only on Indian lands but also on adjoining public lands such as national forests, national parks, and lands under the management authority of the Bureau of Land Management (blm). These were lands that the companies enjoyed access to under lease agreements with these federal agencies. As we discussed what steps might be needed to protect such locations, we also learned the reasons for the great reluctance of the traditionalists to disclose precisely the boundaries of such sacred sites—namely, the experiences that they had encountered with academics and hobbyists who thought that they had a right to attend such ceremonies and persisted even after it was explained that as soon as their presence became known, the elements that made the ceremonies sacred could not be sustained. Moreover, they felt free to visit such sites on their own and disturb the environment in many ways. The lobbyist groups for these powerful corporate interests held their own caucus and concluded that the protections we sought would signifijicantly interfere with the plans of their clients for development on or adjacent to such locations. They foresaw a virtually unlimited number of lawsuits that would be fijiled in federal courts seeking to halt the development effforts of their clients. They gave

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us the impression that there was nothing to negotiate. They had concluded that their best strategy would be to simply stop us in our tracks. This bill, drafted in the joint-congressional-resolution format, was on the same legislative schedule for our committee as the Indian Child Welfare Act, and we were extremely busy doing all that we could do to wrap up our work as we neared the end of the 95th Congress. Suzan and I asked for a joint meeting between Senator Abourezk and Congressman Udall to provide them with a briefijing on where we stood. It was discussed during our meeting that they had also heard from other members of Congress in both the House and Senate who had been approached by representatives of various energy companies and the commercial timber industry. They understood that the opposition to our joint resolution would be very strong and broad-based, as long as we retained the “right to sue” clause in our legislation. Our two committee chairs reluctantly concluded that we would better serve the interests of the Native religious practitioners if we were to voluntarily agree to amend our bill to delete the offfending clause for now. We were urged to inform the Native groups that, in the political process, often “half a loaf is better than no loaf.” The leadership in the Congress was ready to adjourn in the next day or so, and we would have great difffijiculty getting an agreement from our leaders in the Senate for floor time to engage in the anticipated debate. We knew that there would be no objections from the representatives of these industries to passage of the joint resolution that would create the American Indian Religious Freedom Act without the “right to sue” clause. We all anticipated that we would be back in our jobs during the next session of Congress and we agreed plan ahead and try to come up with alternatives to pass a bill with the “right to sue” clause in the 96th Congress. The bill was then passed in the Senate by unanimous consent.

The Battle to Protect Sacred Sites Continues Today: Never Give Up the Fight! In 1988, ten years after Congress passed the American Indian Religious Freedom Act, the U.S. Supreme Court decided the so-called “G-O Road” case (i.e., Lyng v. Northwest Cemetery Protective Association, 485 U.S. 439, 1988). In this case, the Cemetery Association also represented a group of Native American traditionalists whose sacred places would be disturbed and largely destroyed if the U.S. Forest Service were allowed to proceed with their lease with the timber companies and

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their construction of the G-O Road in northern California. Mr. Lyng, who served as plaintifff in the case, was director of the Forest Service in the Department of Agriculture at the time. The U.S. Supreme Court, in an opinion written by Justice Sandra O’Connor, concluded that the Indian Religious Freedom Act does not confer on the federal courts jurisdiction to issue the requested injunction that would halt the timber sales contract, although this would clearly result in an infringement of Indians’ effforts to protect their sacred sites. Twenty-two years later, in 2010, the National Congress of American Indians (ncai) adopted another resolution calling upon the Obama administration to afffijirmatively embrace the policies enshrined in the Indian Religious Freedom Act. Suzan Harjo and I worked together at the 2010 ncai annual meeting in Albuquerque, drafting the resolution and informing the Cultural Concerns Committee of the ncai of the history of the Indian Religious Freedom Act of 1978. We successfully urged the tribal delegates of ncai to again cast their votes in favor of this ncai resolution. Suzan and I share the opinion that the UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007, contains clear language that supports the principle that Native American sacred sites deserve protection under the laws of the United States. The language is in the Declaration because other Indigenous peoples share the same concerns about “sacred place” locations that not only carry special meaning in their historical stories, but are special places that exude powers from a world of which we only have a limited understanding.1 We knew that the ncai at their 2010 annual meeting would be considering a resolution recently adopted by the Afffijiliated Tribes of Northwest Indians (atni). This resolution calls upon the ncai tribal delegates to ask President Obama to work with ncai and the tribes to create a joint commission on implementing the UN Declaration on the Rights of Indigenous Peoples. This would be joint in that the president should appoint key offfijicials from the State Department, Justice Department, and Interior Department to serve on the commission, while selected tribal leaders would be appointed by their regional organizations—leaders who also serve on the executive board of the National Congress of American Indians. The atni organization also recommended to the ncai Board of Directors that they invite the Assembly of First Nations of Canada (afn) to send representatives to the ncai annual meeting where this would be discussed. During a recent trip to New Zealand, I had met with a group of Maori leaders, and they expressed strong interest in these discussions as well. The Maori do not have a national organization of tribes comparable to the ncai or the afn.2

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The Maori people are represented in the New Zealand Parliament primarily by the Maori Party, which has six seats in the Parliament. The party maintains efffective national levels of communication among Maori organizations. Any Iwi (the Maori word for tribe) group that sends representatives to the ncai conference can be delegated to speak on behalf of the Maori political leadership. On the issues of Indigenous peoples’ rights, the Maori have always had strong representation at the UN. If the First Nations of Canada and Maori Iwi of New Zealand were to join with the U.S. tribal leaders in this efffort, they could work together to make the Commission on Implementation of the UN Declaration a joint commission in the sense that it would jointly include the United States, Canada, and New Zealand. If they were to take this step, these countries could be called on to reach out to the United Nations to engage in a joint study on how the UN Declaration should or could be implemented. The UN General Assembly scheduled an international Conference on the Rights of Indigenous Peoples for their September 2014 meeting in New York City.

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CHAPTER 6

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Indian Land Claims and Water Rights Claims Settled by an Act of Congress Serve as Treaty Substitutes

I

n 1979 the Select Committee on Indian Afffairs also took up two legislative proposals that established important precedents for the future: the water-rights claims of the Ak-Chin Pima Maricopa Tribes in Arizona and the land claims of the Passamaquoddy and Penobscot Tribes to their ancestral territories in the State of Maine. Both of these claims arose from federal court cases that involved lawsuits that had been fijiled in their respective federal courts but, for diffferent reasons, were found to be beyond the ability of the courts to reach a satisfactory resolution.

The Ak-Chin Tribal Water Rights Claim In the case of the Ak-Chin Tribe of central Arizona, a settlement of their claims to a share of the water that was available in the network of rivers and streams that flowed through the middle of Arizona would require a number of new diversions from these waterways. The lawyers for the tribe, working with the Department of Justice, concluded that the authority to order such a diversion of water would be more appropriately handled by the Congress in federal legislation, not by a

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federal judge sitting in a courtroom. Consequently, the U.S. Department of Justice informed the court that they were entering into negotiations on behalf of the tribe for a consent decree as an exercise of their trust responsibility. Such a case took on a whole new dimension whenever the Justice Department decided that it was a matter of federal rights that were involved. Over the course of several years, the tribe and their attorneys worked closely with the Justice Department and congressional representatives of the State of Arizona to come up with a plan that included engineering a series of stream diversions that would deliver a sufffijicient volume of water, measured in acre feet, to make the lands reserved to Ak-Chin habitable and sustainable in terms of agricultural crop yields. This principle was based on what the federal lawyers called the “Winters Doctrine,” which referred to a 1908 Supreme Court opinion, Winters v. United States. In that case, the court had concluded that the Gros Ventre Tribe of Northern Montana had entered into a treaty in 1877 wherein they agreed to cede their rights to a vast territory in exchange for the right to “reserve” their remaining lands as a permanent homeland for their exclusive use and occupancy. The court concluded that this “reservation of rights” meant that the lands should have a supply of surface water needed to make it arable. The record before the court in the Winters case showed that the Bureau of Reclamation had constructed a large irrigation project that diverted water from the Milk River in northern Montana, and that this diversion had dried up the lands of the Gros Ventre who lived downstream from the irrigation project. This case on behalf of Ak-Chin was historic in that it was the fijirst time that the Winters Doctrine was being used by the U.S. Congress to justify a legislative settlement of an Indian tribe’s water-rights claim, their “Winters Rights.” The process called for the parties to sign on to an agreement, out of court, that was then approved by the judge who was presiding over the lawsuit. The judge took it upon himself to take testimony from the parties to the lawsuit, the tribe, the state, and the federal government, that established that the tribe’s agreement was based on their “free, prior and informed consent” to the settlement agreement. In 1979 when we took testimony on the settlement agreement before the Temporary Select Committee on Indian Afffairs, we viewed this principle of “free, prior and informed consent” as resting on the same foundation as any of the historical Indian treaty agreements, and we were quite pleased to see the federal judge in this case adopt this standard in his opinion. Importantly, the federal judge understood that he could not dismiss the lawsuit until the terms of the settlement were fijinally completed. That is, the U.S. Congress had to pass a legislative Settlement Act in

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order for the law to efffectively apply to an agreement that would extinguish the tribe’s trust interests, in this case their rights to a specifijic amount of water. Once the law of the Indian Water Rights Settlement was adopted by the Congress and signed by the president, the judge understood that he would be offfijicially notifijied and he could then enter a fijinal order of the court dismissing the lawsuit. As chief counsel to the Select Committee, my job was to ensure that the legislation was moved through the legislative process properly. Once the settlement bill was introduced by the congressional representatives from Arizona—in this case, Senators Barry Goldwater and Dennis DeConcini, and Congressmen Sam Steiger and Mo Udall—our committee promptly scheduled a hearing on the bill. All the parties to the lawsuit, including the bill’s sponsors, were invited to come and testify. Since everyone had already reached agreement in advance of the hearing, the committee was able to move quickly. We promptly scheduled a business meeting of the committee members and took a vote on the bill. Once the bill was approved, we then wrote up the committee report on the bill and fijiled the report for a vote in the full Senate, where it was approved by unanimous consent. (The fijinal steps of the settlement did not take place until 1984 when Congress fijinally appropriated the funds needed to implement the settlement.) Our only concern was the timing of the appropriation of monies involved to implement the settlement. We knew that the funding needed to implement settlement called for approximately $20 million to construct the water diversion projects. We also knew that this would be inserted into the appropriation that was under the jurisdiction of Congressman Yates in the House, who had been following the committee’s work on the bill closely as he was a good friend of Congressman Mo Udall, the cosponsor of the settlement bill and chair of the Interior Committee in the House. Chairman Udall’s committee passed the Ak-Chin settlement as quickly as they could in the latter part of 1979, and the Senate acted on it in 1980. Six years later, Congressman Yates took great satisfaction in setting aside the fijinal increment of federal funds needed to implement the Ak-Chin Settlement Act of 1984.

The Maine Indian Land Claims Settlement Act The Maine Indian Land Claims Settlement Act drew a parallel to the same legal principles that underlay the historical Indian treaty agreements. In the case of the Ak-Chin Tribe of Pima-Maricopa Indians in Arizona, I came to see these water

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claims as modern-day treaty agreements. I had learned in law school at UCLA, under Professor Monroe Price, that Congress had passed a law in 1871 declaring that they would no longer authorize the president’s offfijicials in the executive branch to enter into any more Indian treaties. However, Professor Price included in his new textbook on federal Indian law, published in 1969, the story behind this 1871 law. We learned that this was language that had been added to a government funding bill, an act appropriating funds needed to operate the diffferent branches of the federal government. This language in the bill called for an end to treaty making with the Indian tribes. This was what is now referred to as a “rider,” an amendment added to a bill as it is moving through the Congress. A rider does not have the benefijit of congressional hearings that would otherwise make an offfijicial record that would be available to explain the reasons why the bill was amended to add the new language. In our research at law school, we understood that there are two diffferent types of congressional committees: a committee that is charged with responsibility for creating legislation, and a committee responsible for appropriations. Once I was appointed in 1977 to serve as chief counsel to the Select Committee on Indian Afffairs, I had no difffijiculty understanding the diffferences between how a committee charged with authorizing a law difffered from the appropriations committee. In fact, I quickly learned that there was only one Committee on Appropriations, which had diffferent subcommittees, whereas there were many diffferent authorizing committees that were charged with oversight and legislative jurisdiction over diffferent, specifijic areas of the responsibilities of federal government. Our Select Committee entered into a working relationship with the Appropriations Subcommittee on Interior and Related Agencies. Each year we were expected to make recommendations to this committee regarding the budget of the Bureau of Indian Afffairs, the Indian Health Service, and other activities that involve meeting the needs of the U.S. tribal Nations, such as housing, economic and community development, and fijinance. The infamous rider ending the treaty era was added as an amendment to a funding bill in 1871. It has to be understood within the historical context of the time. Congress’s role had been set forth in the U.S. Constitution to review and pass on treaties that are made by the president. The Founding Fathers had included language in the Constitution providing authority to enter into “Treaties with the foreign nations and with Indian tribes . . .” The treaty-making authority had been used at the very beginning of the establishment of the United States in 1787, when they drafted and adopted the Constitution in the fijirst Continental Congress. By

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1871, almost one hundred years later, over 370 treaties had been entered into with the tribal Nations. The Indian treaties were used by the federal government primarily to acquire vast territories as the fledging country’s settlers moved westward and expanded to the West Coast. The Indian treaties were the primary tool that the government used to legalize their claims to title of the Indian lands, following the model that had been established by England and King George in his Royal Proclamation of 1763. The Royal Proclamation referred to the Indigenous peoples as the Indian Nations, and the Crown asserted exclusive authority to deal with them, making it clear that colonial authorities, government offfijicials in the diffferent colonies, were not authorized to play this role. Following the Revolutionary War and the Treaty of Paris of 1783, the Continental Congress adopted under the “Articles of Confederation” an approach that left to each of the states the authority to deal with the tribes in their state. It was not until the Constitution took efffect in 1787 that the federal government began to implement the Federalists’ policies inherent in the Royal Proclamation. The states resisted this assertion of federal power, a situation that became the “backdrop” to the Marshall Trilogy. The United States entered into its fijirst series of treaties with members of the Iroquois Confederacy and other tribes along the Eastern Seaboard. Subsequently, federal authorities followed this approach and it was upheld by the U.S. Supreme Court in the landmark case, decided by Chief Justice Marshall, Johnson v. M’Intosh in 1823. It was not until fijifty years later that the political leadership in the Congress concluded that it was no longer necessary to use the “tool of treaty making” and inserted the infamous rider of 1871 into the appropriations act that funded the government for fijiscal year 1871 without holding any hearings or otherwise making a record explaining their intentions. After the 1871 rider became law, federal agency offfijicials who were charged to deal with the Indians entered into agreements that the tribes were asked to sign onto. These offfijicials, no doubt, were reluctant to put such agreements into the form of a treaty as they would then need to bring this back before the Congress and seek an amendment to the 1871 Appropriations Act. When the question was raised in President Franklin Roosevelt’s administration, the lawyers in the Department of the Interior, the Solicitor’s Offfijice, advised that this was a matter of “form” rather than “substance.” When the question later came to my desk in the Senate in the context of a bill that had been referred to our committee to approve the terms of the Ak-Chin water-rights settlement agreement, I sought to get an opinion from the Solicitor’s

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Offfijice but could get no response on an offfijicial basis. Unofffijicially, I was advised to follow the form of treaty making and make sure that the tribal councils adopted a resolution that contained specifijic reference to the substance of the agreement. “Informed consent” was the requirement that I understood applied to the agreement. As an afterthought, I remember getting feedback from attorneys in the Lands Division in the Department of Justice that I should make a record to establish that there was no coercion that had been used to force the tribe to accept the agreement. Consequently, I was not surprised many years later to see the phrase “free, prior and informed consent” in the language of the UN Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly of the United Nations in 2007. We had hoped that there would be opportunity to provide an explicit record of what this principle means in the context of “agreement making” between the diffferent federal agencies and U.S. Tribal Nations during the years of the Obama administration. On December 16, 2010, President Obama issued a public announcement that he had changed the Bush administration’s position when they cast one of only four “no” votes in the UN General Assembly against adopting the Declaration in September 2007. The Declaration was overwhelmingly adopted by the General Assembly, with only the United States, Canada, New Zealand, and Australia voting against adoption. In his December 16, 2010, meeting with a national group of U.S. tribal leaders in Washington, DC, the president used very positive words of approval of the U.N. Declaration in his prepared remarks. In the summer of 2013, President Obama publicly committed to take part in the World Conference on Indigenous Peoples that was scheduled by the leadership of the United Nations for September 2014. This date was later pushed to June 9, 2017. As I look back on the precedents that we were able to establish in our work on the Ak-Chin Water Rights Settlement and the Maine Indian Land Claims Settlement Acts, I wish to express my appreciation to Senator James Abourezk who served as chair of the Temporary Select Committee on Indian Afffairs during those years. Today’s generation of Indian lawyers can learn from our experiences.

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CHAPTER 7

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Senator Inouye Becomes Chairman of the Senate Committee on Indian Affairs

A

s I was assisting the board of directors to conclude our negotiations with the new owners of American Indian National Bank in 1987, I received a phone call from a woman on the stafff of Senator Daniel Inouye, D-Hawaii, asking me if I would be willing to join him for a luncheon meeting. I was surprised, as I knew of the Senator but had never met him. However, I told her that I would be happy to accept his invitation, and we made an appointment for later that week to have lunch at the Monocle Restaurant. The Monocle is a well-known “watering hole” located just down the street from the Hart Senate Offfijice Building, where the Senator had his offfijice. When I arrived at the restaurant, the Senator was already seated at his table and rose to greet me. He quickly got down to business, telling me that he had recently accepted a request by the Senate leadership to assume the position of chairman of the Select Committee on Indian Afffairs. In the 1986 national elections, the Democrats had gained the majority in the U.S. Senate, and, as the majority party, it was their prerogative to appoint new chairmen to the various Senate committees. The Senator explained that he was now looking for someone who would be willing to come to work as stafff director for the committee. I was not totally surprised, as after receiving a phone call from the Senator’s offfijice, I had called my friend Patricia Zell, who I knew was working as a stafff attorney for

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the committee. She told me that the Senator had come to the committee offfijices recently to meet with the stafff and singled her out as someone who had been highly recommended by the ranking Democrat on the committee. Senator Inouye and Patricia had discussed the legislative work that the committee had been doing under the prior chairman, Senator Mark Andrews from North Dakota, a Republican. When he asked her if she could recommend anyone for the position of chief of stafff or stafff director, she told him that there was only one person that he should interview, Alan Parker. Patricia knew me from the time that we worked together on the aiprc and the early days of the Senate Select Committee, 1977–1981. She was aware of my work at the American Indian National Bank, and she knew that I had recently been engaged in a sale of the bank for the group of tribes who were the owners. However, she told me that she had not called me before as the Senator wanted to meet with me before making up his mind about making a job offfer to me. When the Senator and I met for lunch, he began our meeting by telling me that he knew very little about the tribes, nor did he know about the body of laws and historical policies of the federal government regarding relationships with the tribes. When he asked me what he should be looking for in a chief of stafff, I told him that I thought that the most important quality was that he needed someone who had “a fijire in their belly” about the long history of injustice and mistreatment that tribal people had received from the United States. He then asked me if I had a fijire in my belly, and I told him that I have an abundance of fijire and that he should not hire me unless he was prepared to be dealing with someone who sees the job as serving as the chief advocate for tribal rights on the stafff. He told me that he was happy to hear that I was looking for an opportunity to correct injustices and right the wrongs that had been inflicted on the tribal people and their tribal Nations. He then asked when I could start, and I told him I could wrap up the work I was doing with the bank in two weeks, and he said he would have someone sign me up as soon as I was ready to go to work. For the next fijive years that I served the Senator as his chief of stafff on the committee, my respect and admiration for him grew daily. He quickly made it clear to his personal stafff that his number one priority was now his work as the chairman of the Indian Afffairs Committee. My friend Patricia Zell became the chief counsel for the committee, and we worked together as a team to meet with the many diffferent tribal leaders and their stafff as they came to Washington to ask the committee for help on their tribal issues. Working with the tribal organizations,

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such as the National Congress of American Indians (ncai), which had offfijices in the nation’s capital, we developed a list of priorities to discuss with the Senator. Our priorities were also based on the requests that we received from the offfijices of other senators and congressional members who had tribal communities within their state or congressional district. Word had quickly spread that the new chairman of the Indian Afffairs Committee was a senator with a lot of seniority. Senator Inouye was fijirst elected to the Senate in 1962, shortly after the Territory of Hawaii became a state and was admitted into the Union in 1959. Naturally he gave a lot of his time and attention to his constituents who made the long trip across the Pacifijic, a fijive-hour flight that was followed by another four- to six-hour flight from the West Coast. We learned that Hawaii had a lot of military bases, beginning with the Naval Base at Pearl Harbor, located very near to the state capital and largest city in the state, Honolulu. Although the Senator was now over sixty, he carried himself with a great deal of vigor and dignity for someone who had lost an arm serving as a soldier in the 442nd Regimental Combat Team during World War II. The 442nd was legendary in the history of Hawaii. It was known as the army unit that had received the most decorations (medals) for bravery in combat during World War II. The 442nd was comprised entirely of Japanese American soldiers who came both from Hawaii and the Pacifijic Coast. Many soldiers in the 442nd came from families that had been placed in the infamous “internment camps” created by the U.S. government shortly after the Imperial Japanese Navy carried out a surprise attack on Pearl Harbor in December of 1941. As a young soldier serving in the war, Daniel Ken Inouye quickly distinguished himself and received a battlefijield commission as a lieutenant while his unit endured heavy enemy fijire and took many casualties in Italy and Southern France. Many years later, in 2000, President Clinton awarded Senator Inouye the military’s highest honor for bravery, the Medal of Honor for his service during World War II. During my years serving as his chief of stafff on the Senate Indian Afffairs Committee, I learned many things from this brave and distinguished man. Perhaps the most important lesson he imparted to me and Patricia was that every tribal offfijicial that came to the committee, whether as a visitor on private business or as an offfijicial taking part in a congressional hearing on behalf of their tribal community, deserved to be treated with the utmost respect and professional courtesy. He knew that his colleagues in the Senate and House of Representatives often treated their tribal visitors with only minimal respect and courtesy. It was not that they were racist, but they reflected the community attitudes that prevailed in their home

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state or district, where the Indians were often the most poverty-stricken outcasts. When we addressed tribal offfijicials in our committee correspondence, we typically used the term Mister or Miss. Senator Inouye quickly corrected us and wrote on the letters that we had prepared for his signature “The Honorable” over our term Mister. When we next saw him, he pointed out that tribal offfijicials deserved the same honorifijic terms that we used in addressing state and city offfijicials. From the fijirst committee hearing, he also showed us how he expected us to greet each tribal offfijicial and members of their delegation. By setting the tone in this way, not only our committee stafff but other stafff that came in contact with the committee quickly saw how we treated our witnesses and tribal offfijicials and followed our lead. The many diffferent tribal offfijicials and representatives that we encountered quickly learned that Senator Inouye had embraced his assignment as committee chair with not only enthusiasm but dedication to serving the tribes with the same degree of care and attention that he gave to the concerns and issues of his own constituents from the State of Hawaii. I vividly remember one of the fijirst committee hearings that we conducted where I was sitting next to the Senator as his chief of stafff. Our tribal witnesses were describing the history that led up to the event they were there to address in the proposed legislation. It was a gruesome story of a slaughter by the Cavalry of their ancestors that the witness was reciting without emotion, and Senator Inouye turned to me and said under his breath, “Those bastards!” Word spread quickly of the Senator’s personal feelings about the long history of injustice that nearly every tribe had experienced. With the news that the new chairman was a man who actually cared, in a personal way, about this history of depravity and bad faith, this rapidly increased the demands on our time and attention. For the fijirst time in its short history, the Senate Committee on Indian Afffairs had a leader who not only was a very senior member of the Senate but also gave priority to his duties as chairman. Our Senator’s seniority meant that our committee received the highest degree of attention and service from other offfijices in the Senate and on Capitol Hill.

The Indian Self-Determination Act Is Succeeded by the Tribal Self-Governance Act After the Indian Self-Determination and Education Assistance Act was adopted by Congress in 1975, it gradually became clear that this new law had laid the foundation

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for what became a quiet revolution across Indian Country. Despite the resistance of the bia, many tribes were now able to use this new law to contract for and carry out the bia functions and responsibilities within their Indian reservation communities. For the fijirst time, they could create fully functioning tribal governments under their own control and employ their own people. When I compare this situation in the years shortly after the Indian Self-Determination Act was passed to the colonial system that I witnessed in 1961 and 1962 when I worked for several summers on the Rocky Boy Indian Reservation during my college years, the change that I witnessed was monumental. I witnessed our Chippewa Cree Tribal Council in the 1960s constantly deferring to the bia superintendent at every turn. Later, when I saw how Quinault tribal president Joe Delacruz and his fellow leaders took the critical fijirst steps to wrest control over program delivery and budgets away from the bia, I knew that I was witnessing decolonization in action. It took another twelve years after passage of the 1975 law for a group of tribal leaders to take the Indian Self-Determination Act to the next level and to put theory into practice. They took the crucial fijirst steps needed to free themselves from the colonial administration policies of the bia on more than two hundred Indian reservations. In February 1987, I had just started serving as Senator Inouye’s stafff director on the Senate Select Committee on Indian Afffairs when I was privileged to work directly with these tribal leaders. Through their hard work and persistence, the “Tribal Self-Governance Coalition,” as they called themselves, succeeded in eliminating much of the red tape and bureaucratic restrictions of the “638” contracting system.1 They freed their governments to be fully in charge of their own operations with only minimal control by the bia. They all realized that the contracting system needed to be replaced with a relationship of government-to-government compact agreements. Contracting under the pl 93-638 law was being handled by the bia as a procurement contract; this approach treated the tribes as if they were just a private company that was contracting to deliver bia’s own services for themselves, just as a private contractor fijirm would do. Under this model, these services were simply being “procured” by the bia from the tribes as they would procure them from any other private fijirm or contractor. In contrast to this procurement approach or model, the tribal leaders in the Self-Governance Coalition shared a common vision. They saw that they needed to step out of the role of a contractor negotiating to deliver essentially the same governmental services that the bia was delivering. Instead, they had come to realize that they should assert that the law was intended to place them in the

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role of another government that entered into negotiations that would result in a compact agreement. Webster’s Dictionary defijines a compact as an agreement that is a joining together, and as a covenant between two states. In their view, this term was more appropriate for the role that the tribes were asserting. Tribes were asserting their role as a governmental entity charged with the authority under the Indian Self-Determination Act of taking over the role of the bia, not as a substitute for the bia. Senator Inouye’s vice-chairman on the Senate Indian Afffairs Committee, Dan Evans, was the senator from Washington State, who was well known to Joe Delacruz and his fellow tribal leaders from Washington. Both senators saw the importance of, and key diffferences in, the governmental compacting role that the tribes were describing. They also saw that under the tribe’s vision, the bia would no longer be in a role of negotiating a procurement contract just as they would with a private company to perform a service. They, the bia, would be obliged to treat the tribes as another governmental entity, on a par with them. In 1987, the Senate Committee on Indian Afffairs conducted hearings on this proposal and concluded that it should be started as a “demonstration” project since the authority being proposed by the tribal coalition broke new ground. The coalition members all agreed that it should be tested for a year or two before it could be implemented on a broad, national scale. The initial “Tribal Compacting Authority” was inserted into the bia appropriation bill for 1988 at the recommendation of Senators Inouye and Evans. Congressman Sidney Yates, the chairman of the Interior and Related Agencies Appropriations Subcommittee, was fully in support of this proposal. The language inserted into the appropriation bill provided for a demonstration project that was then modifijied in 1990 into a permanent authority. The ten tribes who were part of the coalition made adjustments as they gained some experience with the new law, and two years later, the Congress enacted a permanent change to the Indian Self-Determination Act, the Tribal Self-Governance Act with the compacting authority that the Self-Governance Coalition had sought.2 In the years immediately following enactment of the Indian Self-Determination Act in 1975, tribal government offfijicials eagerly made use of as much of their new authority as they could. They were motivated to take over and administer governmental services formerly conducted by the bia and ihs network of local offfijices. Federal regulations devised by these two agencies maintained a largely paternalistic approach in the language of the regulatory provisions. Negotiations over Self-Determination Act contracts between individual tribes and the federal

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agencies left intact with the bia and ihs the responsibility to “design” governmental services as well as “key budgeting decisions.” As tribal governmental offfijicials became more experienced and knowledgeable about diffferent approaches that could be taken to deliver services and allocate budgets to meet local needs “as they saw them,” their relationships with the bia and ihs offfijices became more strained and conflicted. Many of this generation of tribal leaders (1975 through 1987) experienced the turf mentality of the local federal offfijicials who were not persuaded that a diffferent approach to Self-Determination Act contracts was wise or acceptable. They believed that tribal governments were simply not capable of doing this work as well as, or even better than, the approach they were accustomed to with their many years of experience. It was very understandable to me why this group of tribal leaders were motivated to come together to explore strategies for changing this system. In their analysis, the basic premise of the law needed be changed from contracting with the bia and ihs to an approach where the tribes were delivering the services as they thought they should be delivered. These tribes became convinced that the policy itself was deeply flawed. They saw that placing tribes in the role of a contractor meant that the burden was on them to prove that the services could be delivered in a superior way and more cost-efffectively. As they examined the premise of the 1975 law, they saw that these local governmental services were things that they would have been doing themselves were it not for the history of colonialism and the role that the bia had inherited under this colonialist system. These governmental services would also have been funded by the tribal governments themselves if there had not been restrictions on creating tax revenues offf the Indian trust land base of their respective reservations. The Tribal Self-Governance Coalition, as they became known, understood that it was not going to be simple and easy to change from a system of contracting for the funds to deliver local governmental services in the same way that the bia and ihs had been doing for years. Regulations would have to be changed, and the resistance of the bia and ihs would have to be overcome. They soon discovered that there was also resistance from tribes who had become invested in the status quo contracting relationships, and that their resistance would have to be overcome. The coalition approached Senator Inouye in his new role as the chair of the Senate Indian Afffairs Committee at the beginning of the 100th session of Congress, in February 1987. Senator Inouye had been joined by Senator Dan Evans as his vice-chairman, and the two senators learned they had much in common. Primarily,

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they were both committed to looking to the tribal leaders for direction regarding changes in federal policies that pertained to historic relations between the federal government and the tribes. When the Tribal Self-Governance Coalition, under the leadership of Joe Delacruz, approached me for my help in arranging to meet the two senators and explain their views on the Indian Self-Determination Act contracting system, I was delighted to do so. At their meeting, the two senators became strong supporters of the tribes on these matters. Working with Congressman Sidney Yates, chairman of the House Subcommittee on Interior Appropriations, the tribal coalition proposed to him that he authorize and fund in the fy 1988 budget for bia a demonstration project in tribal self-governance compacting. The ten tribes who were part of the coalition were ready to be the test case to show the rest of the tribes what the merits of their approach would be, through using a demonstration project. When the Interior Appropriations bill came over from the House in the spring of 1987, Senator Inouye, who was also a member of the Senate Appropriations Committee with seniority dating back to 1963, joined with Senator Evans in supporting Congressman Yates. The Yates language to create a demonstration project had been examined in the Senate Indian Afffairs Committee through Senate hearings. When the 1988 Interior Appropriations bill was enacted in the fall of 1987, the ten Self-Governance Tribes, as they became known, immediately joined together in negotiations with the bia to design and negotiate agreements to change from their Self-Determination Act contracts to governmental compacts. They proposed to fold many diffferent contracts into one funding agreement. The process that the bia used at that time was to have the tribes enter into separate contracts for each activity that they wanted to contract. The coalition designed an approach to meld the separate contracts into a single compact agreement with funding discretion for each tribe to make changes in the diffferent budget accounts within the compact agreement. Intense work by the ten tribes and the two agencies led to ten successful demonstration compact agreements in diffferent parts of Indian Country where the members of the coalition were located. Their single funding agreement incorporated their principles to maximize the controlling role of the tribe and minimize the roles of the two agencies. These model agreements were based on regulations they had drafted and then led the efffort to design authorizing legislation in the spring of 1988. The terms of the authorization for this experiment that were developed by Congressman Yates in 1987 were used as a template for legislation drafted by Senator Inouye’s committee. He told me to take a lead role as his stafff director, to draft a

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law that would authorize the demonstration project in self-governance for the ten tribes for the next two years. In 1990, the demonstration project was reenacted as permanent law as a “Compacting amendment” to the Indian Self-Determination Act of 1975. Further revisions were made in 1994, after I had left the job as stafff director to the committee. Twenty-two years later, in 2012, over three hundred tribes have entered into self-governance compacts as authorized in the 1990 law. A much smaller number of tribes continue to use the contracting method, primarily due to conditions that their tribes operate under that they had concluded were better suited to a contracting format. However, the leadership and vision formulated by the coalition of ten Self-Governance Tribes has proven its value in the past twenty years. The role of tribes with the federal agencies, bia and ihs, has also been fundamentally changed due to the leadership of the ten Self-Governance Tribes. In the twenty-plus years since the law was enacted, the scope of the roles of the bia and ihs has dramatically decreased, and the tribal governing structures and organizational capacities of the tribes have been dramatically enhanced. Perhaps, in the future we shall see an expansion of the Tribal Self-Governance Compacting model to many other federal agencies that have a comparable relationship with tribal governments in the design and delivery of local governmental services. The tribal self-governance compacting authority that was passed in the Congress in 1990 succeeded in changing the authority of the bia over the control of social services, law enforcement and judicial powers, administration of roads and waterworks, land leasing by tribal members, local schools, and, with respect to the ihs, administration of health clinics, water and sewer treatment facilities, and many other facets of local government. As the tribes gained even more experience, more adjustments were made in the law, and as of 2012, we have reached the point where an overwhelming majority of the tribes have totally embraced the compacting approach. When you go to the website of the Tribal Self Governance tribes, TribalSelfGov.org, you will see that they are now discussing the question of how this approach might apply to their relationships with a wide range of other federal agencies, such as hud, epa, and usda. The tribal self-governance tribes have banded together and hold annual meetings to engage in an ongoing dialogue with the two government agencies with whom they have historic relations, the bia and ihs, and created a website to post reports on topics such as new funding arrangements, insurance, the continuing relevance of the federal trust responsibilities, and similar matters.

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Indigenous leaders signing the United League of Indigenous Nations Treaty in 2007. Left to right: Evelyn Jefferson (Lummi Nation, Washington State), Ivan Ivan (Native Village of Akiak, Yupic Native Community, Alaska), Daryle Rigney (Ngarrindjeri Indigenous Nation, Australia), Chief Jaret Cardinal (Sucker Creek First Nation, Alberta, Canada), Aroha Mead (Ngāti Awa and Ngāti Porou Tribes [Māori], Aotearoa, New Zealand), Michael Marchand (Confederated Tribes of the Colville Reservation, Washington), Andy Ebona (Tlingit Tribe, Alaska).

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The author at the Maori University, circa 2005, with a Maori performer dressed in traditional cape and skirt made with bird feathers.

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The author next to a carved post at a Maori meeting site, circa 2002.

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The author next to a stone sculpture of a Maori warrior, circa 2002.

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The author next to a Maori waka (seagoing war canoe).

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Cover of the final report of the American Indian Policy Review Commission, on which the author served as a member from 1975 to 1977, submitted to the U.S. Congress, May 17, 1977.

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The author in his faculty office at Evergreen State College, circa 2010.

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The author and Peterson Zah, president of the Navajo Nation, in the Senate Indian Affairs Committee with a Navajo rug in the background, circa 1987.

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Pathways to Indigenous Nation Sovereignty : A Chronicle of Federal Policy Developments, Michigan State University Press,

Senator Daniel Inouye at Pechanga Indian Resort and Casino, 2009. Left to right: Walter Echo-Hawk (Pawnee Nation), Mrs. Irene Inouye, Keller George (Wolf Clan, Oneida Indian Nation), Leo LaClair (Muckleshoot Indian Tribe), Senator Daniel Inouye, author Alan Parker, and Hoshi Henry (Choctaw Nation).

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The author with the Board of American Indian National Bank, during his tenure as president, circa 1985.

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Iroquois chief Oren Lyons next to attorney Richard Trudell in the Senate Committee hearing room, circa 1989.

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Richard Trudell at the podium in Washington, DC, with Vice President Al Gore and Tipper Gore, circa 1995.

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CHAPTER 8

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Developing an Economy in Indian Country

D

ue to the federal trust status of the Indian reservation land base, private sector economic activities are extremely limited and constrained. Because these lands and natural resources—such as timber, minerals, and water rights—are trust property in which the legal title remains with the federal government, they cannot be used as collateral for bank loans and other credit arrangements. BIA offfijicials, who are assigned the duties of overseeing the use of trust properties, are authorized to agree that the “use rights” that go with a government-approved lease agreement can be legally assigned to a third party. If an Indian tribe, or an individual Indian who holds an allotment interest in the land, wishes to assign the income stream that is derived from the lease to a third party leasing the land, this income stream can be used as collateral by a bank that has been asked to extend a loan to the tribe or to the individual allotment holder. Likewise, structures afffijixed to the land, such as homes or dwellings, cannot be pledged as an asset to secure home mortgage loans. The federal government, through the bia and hud, allocates funds appropriated by the U.S. Congress to build the public infrastructure needed on Indian reservations. The physical infrastructure to construct multiple-unit home sites usually consists of electricity,

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natural gas, and water and sewer services. However, in the case of Indian Trust lands, the homes and the underlying lands that comprise a network of home sites must be built without any private sector fijinancing. Even the streets and roads and public utilities to provide electrical power are created with public funding from the federal government rather than with a tribal government’s revenue that would otherwise result from imposing local government property taxes to fund such infrastructure.

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Lummi Indian Nation Proposes the Tribal Government Tax Status Act In 1988, the Lummi Nation played a lead role in proposing the Tribal Government Tax Status Act. They wanted to clarify the ability of tribes to raise public revenues by issuing municipal bonds. Although the bill was referred to the Senate Finance Committee and House Ways and Means Committee, Senator Inouye provided important support on behalf of their bill in his role as chairman of the Indian Afffairs Committee. Under this law, tribes are authorized to issue tax-exempt municipal bonds on the same basis as city or county governments. The Lummi proposal was amended in 1988 by the Finance Committee to place a restriction on the purposes for which a tribe could use funds generated by a tax-exempt bond issue. The Finance Committee amendment provided that Tribes can only use such funds for “essential governmental functions.” Federal Indian trust lands cannot be taxed and thus cannot be used to generate the property-tax revenues needed to support a bond issue in the customary way that cities and county governments support their bond issues. An Indian tribal government cannot impose a property tax on federal Indian trust lands. Without such a stream of income from local property taxes, there must be other sources of revenue to support tribal bond fijinancing. Nevertheless, the Tribal Government Tax Status Act is poised to become very relevant and important, as many tribes in the twenty-fijirst century have experienced success at developing their own tribal economies with many “alternative income streams” that can be used to secure a tribal government municipal-bond issue.

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The Indian Gaming Regulatory Act: A Whole New “Game” for Indian Tribes In the early 1980s, many tribes began to engage in high-stakes bingo enterprises. At regional meetings of tribal organizations, they conducted workshops among themselves to learn from each other about the best ways of creating such new gaming enterprises. They had discovered that there was a market demand among the residents of neighboring towns and cities for such recreational gaming enterprises. Enterprising tribal attorneys advised their tribal clients that they were not subject to restrictive regulations of state and local governments on such gaming activities. Gradually, tribes expanded the types of bingo they would conduct and began experimenting with raising the prize limits to compete more efffectively with non-tribal private operators. The Cabazon Band of Southern California played a lead role in expanding to high-stakes bingo without regard to local and state regulations. When the State of California attempted to send law-enforcement offfijicers to close down the Cabazon Band’s high-stakes bingo games, the band fijiled suit in federal court claiming that they and their bingo game enterprises were outside the jurisdictional reach of state law. The Cabazon Band case found its way to the U.S. Supreme Court, and the Court issued its decision in 1987. The Court concluded that the State of California did, indeed, lack jurisdiction to enforce its civil regulatory authority over the tribe for activities that were taking place within the boundaries of their federal Indian reservation. The Court pointed out in its opinion that if the state had adopted laws that made it a criminal offfense for operators to engage in high-stakes bingo, they could have overcome the tribe’s defenses. However, the state had refrained from criminalizing such behavior as they then would have been compelled to shut down private, non-tribal bingo-game business operations and incur the political repercussions of shutting offf a popular local form of recreational gaming. At the time that the Supreme Court issued its opinion on the Cabazon Band case, I was surprised to hear from the stafff of many members of the U.S. Senate telling me that their senator was alarmed by the Court’s decision. They foresaw that this form of gambling could spread to all the diffferent states where Indian reservations were located. Any location near densely populated areas could serve as a market for tribal gambling enterprises. They expressed deep concern over the potential that organized crime elements would soon begin to infijiltrate tribal gaming-enterprise organizations to offfer fijinancing and professional expertise for

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high-stakes, casino-style gambling. They had analyzed the law to see that this would be a possibility wherever the state had not criminalized such recreational gambling activities. California was held out as an example. When I informed my boss, Senator Inouye, of these communications and concerns from such a widespread segment of the U.S. Senate, he asked what would happen if the committee simply did nothing. I advised that we would most likely begin receiving proposed bills referred to our committee that attempted to legislatively overrule the Supreme Court’s decision in the Cabazon case. His reaction was that we should hold hearings and plan to use the congressional hearing process to examine our options, but that he was reluctant to simply pass a bill that took away the ability of tribes to offfer recreational gaming as a business. He noted that any state could simply criminalize such activities if they wished, such as his own state of Hawaii had done shortly after achieving statehood. Senator Inouye conducted a series of hearings, and in conjunction with our counterparts in the House Interior Committee, we devised a compromise solution. Initially we saw that there were two choices: (1) passing a bill that simply overruled the Court’s opinion by providing that a state was empowered by the Congress to pass their own laws that prohibited high-stakes gaming by an Indian tribe, or (2) letting the Court’s conclusion stand as the law of the land and be forced to accept option 1 by a coalition of senators. We came up with a third choice, compromise. The compromise we devised was enacted as the Indian Gaming Regulatory Act (igra). The bill was passed in October of 1988.1 We had designed a bill that addressed the question of who could regulate high-stakes tribal gaming enterprises by requiring that the states and the tribes develop gaming compact inter-governmental agreements between them. To counter the temptation of state politicians to simply refuse to enter into any negotiations, the law provided that the state must “negotiate in good faith” before walking away from the table if the tribes located in their state proposed that they enter into a gaming compact. In the igra legislation, we also provided that the tribes must retain 100 percent of the ownership interest in such gaming enterprises to minimize the possibilities of opening the door to organized crime, one of the major concerns we had heard from other senators and their stafff. When tribes operate high-stakes gaming operations, they must create their own Tribal Gaming Commission, a tribal regulatory agency that would operate under the supervision of the National Indian Gaming Commission, a new federal-government regulatory agency that was created by the new law.

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After twenty-two years of experience with the igra law, there have been very few instances of litigation due to the failure of negotiations between tribes and states over the regulation of high-stakes gaming. Likewise, there have been only a very small number of reports of suspected involvement of organized crime in tribal gaming enterprises. In 2016, total gross earnings from Indian gaming reported by the National Indian Gaming Commission exceeded $30 billion. All of the after-expense revenues from a tribal casino, including the expenses of servicing the debt that a tribe may take on to pay for the costs of casino construction and expansions, make up the profijits that the tribe earns. This remaining revenue is channeled directly into the treasury of the tribes as net income, the $30 billion reported by the National Indian Gaming Commission in 2016. We did not envision in 1988 that we would see revenue from tribal gaming amounting to $30 billion coming to the tribes from their tribal casino enterprises. Those of us who worked on the legislation back then have all been impressed by the phenomenal success of tribal gaming—success that is entirely due to the initiative and creativity of the tribal leaders, not the federal government agencies or the outside experts. Two important provisions of the law include, fijirst of all, that 100 percent of the ownership interest must remain in the name of the tribe. We believed at the time that it was important that tribes not be subjected to pressures from outside investors to enter into partnership agreements based on the investor having an ownership interest, a stake in the enterprise. Second, igra provides a restriction that the net revenues from tribal gaming must be directed, fijirst of all, to providing governmental services. Only after a tribe’s governmental needs have been met may gaming proceeds be allocated in per capita payments to tribal members. This phenomenon of a broad-based record of success at tribal gaming (over two hundred tribes now have fijinancially successful casino enterprises) has radically changed the economic and political environment that exists in most areas of Indian Country today. These tribes have their own revenues, the equivalent of tax revenues that other local governments obtain from property taxes and fees. They have the revenues not only to meet the economic and social needs of their tribal communities, but also to meet some of the needs of their surrounding non-Indian communities. Thousands of jobs have been created by tribal casinos all across the United States, as well as opportunities for a wide range of businesses that service their enterprises. In Washington State, I served from 2001 through 2008 as a member of the State Gambling Commission in a capacity as a private citizen, an unpaid volunteer, appointed by Governor Gary Locke and reappointed by Governor Chris

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Gregoire after her election in 2004. I saw fijirsthand from my seat on the State Gambling Commission the impacts the tribes have had in Washington State in meeting their own needs and the needs of neighboring municipal and county governments. The gaming enterprises generate income that provides for fijire protection, police, and emergency services through using what the tribes in Washington State call their “2 percent program.” Under their compact agreements with Washington State, the tribes agreed to set aside 2 percent of their revenues to fund some of the needs created by the impact of large-scale casino developments. They have funded, through their 2 percent funds, the purchase of fijire station equipment and police service equipment as well as certain needs of local school districts. As a result, they have totally changed the relationships that they have with their neighbors across the state and the opinion of the general public. This is quite signifijicant in Washington State, where fijierce battles were waged in the 1960s and 1970s over the tribes exercising their treaty rights to fijish. After federal district court judge George Boldt issued his opinion upholding the tribes’ fijishing rights in 1974 in the United States v. State of Washington case, he became the target of much criticism and public abuse by the opponents of tribes among the commercial fijishing industry and sports fijishermen. They deeply resented that the tribes gained the right to harvest 50 percent of the fijish at their “usual and accustomed places,” as clearly stated in the Stevens Treaties. In contrast to this resentment and hostility, today tribes and their local communities work together for their mutual benefijit. As I recall, in 1988, when I was serving as stafff director to the Senate Indian Afffairs Committee, the budget for the bia’s Indian Financing Act business-grant program was approximately $20 million, appropriated each year by the Congress, to be available for applications coming from all of the tribes across the country. There were also business-grant fijinancing monies appropriated for the Economic Development Administration of the Commerce Department that served tribes, but these totaled less than the $20 million available to the bia in their 1988 budget. The Small Business Administration also provided small grant programs as well as its bank-loan guarantee program, but they are only available to individuals, not tribal enterprises. Taken together, all of these federal agencies provided, in my estimate, less than $50 million in business and economic assistance to all of Indian Country. Today, in 2016, many of the tribes can confijidently expect to earn their own revenues in excess of this $50 million, in some cases as much as a billion dollars or more. There has been excellent research funded by the National Indian Gaming

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Association, niga, comprised of over 250 tribes as members, regarding the economic impacts of Indian gaming. For the most part, their reports have documented that the primary use that tribes have been making of their gaming revenues—that is, revenues that are in excess of the funds they use to meet their own internal governmental needs—has been to diversify their own tribal economies beyond gaming activities. They have created very successful hotel and resort complexes to build upon the economic foundation of a successful casino. Many have expanded and have added golf resorts and live entertainment venues and facilities. Some tribes, such as the Tulalip Tribes, serve a regional market for recreational gaming entertainment that is comprised of the population of suburban Seattle combined with Vancouver, British Columbia. Many of their patrons come from the south of their casino resort, which is located fijifty miles north of Seattle, while those coming from the north make the journey from Vancouver, British Columbia, a city with a population of over 600,000—a population that is nearly as large as Seattle. By adding to their Tulalip Casino Resort a shopping-center complex with outlets from national, upscale fijirms, located on an area they have named Quil Ceda Village, they are serving as a model for other tribes seeking to expand and diversify their own tribal economies. The Puyallup Tribe to the south of Seattle, with lands adjacent to the metropolitan area of Tacoma, Washington, are busy designing and planning an international port facility adjacent to the Port of Tacoma to be fijinanced with an income stream from their Emerald Queen Casino. The Seminole Tribe of Florida, with their gaming revenues, recently acquired a signifijicant investment interest in an international chain under the trade name of Seminole Hard Rock Café and Resorts. They acquired the Seminole Hard Rock franchise from an international corporation that owns numerous facilities across the United States and northern Europe. The Pequot and Mohegan Tribes, serving a market from Boston to New York City, have created a diffferent model by investing in the casino enterprise developments of other tribes who would otherwise have had to rely on outside private investment fijirms, known for requiring major concessions from tribal landowners. One outstanding example of “tribal philanthropy” made possible with excess revenues derived from tribal gaming is that of the Shakopee Dakota Sioux located next to Minneapolis–St. Paul. In 2009, they issued a report on their tribe that marked their forty-year anniversary since federal recognition in 1969. They reported that their total philanthropic giving to tribes in need, primarily in North and South Dakota, over the past twelve years amounted to over $162.5 million, and they have

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advanced another $160 million in economic development loans to tribes who are not as well offf as themselves.2 The phenomenon of highly successful tribal casino gaming has also provided a major psychological boost to all of Indian Country. Although the numbers of tribal casinos that are highly successful are limited to those tribes located next to areas with large metropolitan populations, many tribes located near towns and cities of moderately sized populations serve as moderately successful examples. This is attested to by the niga membership numbers of over 270 tribal casinos spread across ten states. The challenge for the future, I believe, is to fijind efffective ways to allow tribes that have successfully developed their gaming enterprises to gain an opportunity to invest their excess capital in other areas of Indian Country that are far from lucrative gaming markets, yet rich in undeveloped natural resources.

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A New Paradigm for the Economic and Political Relationships among the Tribal Nations Our study of these new relationships suggests that the Shakopee Mdewakanton Sioux Nation, the Pechanga Luiseno Indians, and other prominently successful tribes can now begin to play a powerful role of leadership among U.S. tribal Nations. If they were to develop a paradigm regarding how tribes could build political and economic alliances among Indigenous Nations of the Pacifijic Rim by strategically investing some of their new capital revenues, they could set the direction for the future for all the tribes. In my travels over the past ten years among the First Nation leaders of Canada, Maori tribal Nations of New Zealand, and Aboriginal Indigenous in Australia, I have met many indigenous leaders who have demonstrated outstanding intelligence, leadership, and political skills. They all expressed to me great admiration for the accomplishments of U.S. tribal leaders. They know about how tribes were successful at overcoming the post–World War II termination policies imposed upon our tribal peoples by the U.S. government. Many indigenous leaders of the Pacifijic Rim that I have come to know have devoted years to researching the historical developments in the United States. They know that our Native American political leaders successfully pushed forward the Indian self-determination policies that were articulated by those leaders that played a role in the 1961 Chicago Conference. They saw how Native American leaders formulated new Indian policies that were sent to President John Kennedy after his election in

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1960, and saw that President Richard Nixon embraced these policies in his 1970 “Indian Policy Message” to the U.S. Congress. As we well know, our tribal leaders were not in a state of pupilage during these years, simply learning how to manage our own afffairs under the teaching of bia bureaucrats. These myths were invented by non-Indian academics to explain why the U.S. government termination policies in the 1940s and 1950s built upon their colonial atrocities. To a post–Vietnam War generation, the myth of the Noble Savage had been dispelled. The new generation pushed Nixon’s 1970s message to the Congress on self-determination, and they made it into their own, transforming it into the Tribal Self-Governance Policy in 1988, an even more powerful success story today. Vine Deloria made a great contribution to this transformation by demythologizing this period of recent history in his book Custer Died for Your Sins. Based on his experiences and lessons that he learned while serving for eight years as executive director to the ncai organization in the 1960s, Custer Died for Your Sins became a rallying cry and a modern guidepost for up-and-coming Indian leaders. Additionally, the book appealed to an audience of non–Indian American youth, college students, as they were learning about the U.S. government’s myth of fijighting Communism. This myth, as we know, was used as a justifijication for America’s invasion of Vietnam in 1963 so the American public could be persuaded that their American soldiers were stemming the tide of Communism in Southeast Asia. I loved Vine’s book, as I found it spoke to my own experiences having been drafted by the U.S. military in 1965 as the U.S. government was building up its armed services to expand the Vietnam War.

The Indian Development Finance Corporation Act Up to this point in my story, I have been telling of the legislative achievements of the Temporary Select Committee on Indian Afffairs accomplished during the 95th and 96th Congressional Sessions (1977–1981) and the Senate Committee on Indian Afffairs in the 100th and 101st Congress (1987 through 1991), when it was under the leadership of Senator Inouye as chairman. However, this story would not be complete without telling the story of how we tried but failed to implement the recommendations envisioned by Peter MacDonald and his colleagues who served on the aiprc Economic Development Task Force; their primary recommendation

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was to call upon the Congress to create an Indian Development Bank. They had concluded that a development bank should be created that would be modeled upon fijinancing entities created by the World Bank in the 1960s. The World Bank, created shortly after World War II at the historic Bretton Woods Conference, was designed in part to address the economic development needs of those former colonized nations in what they called the Third World. This term referred to the former colonies of European powers that were largely liberated from colonial rule following World War II. One of the common characteristics of these former colonies was that they lacked their own domestic economic infrastructure. Under colonial rule, the economy in countries such as Kenya, India, Cambodia, and Brazil was served by a network of banking institutions whose owners were located in Europe. The laws to cover fijinancial transactions were laws that were imported from the various European powers. Private property in the Third World was largely owned by European settlers who came to the colonized worlds and gave themselves preemptive rights to acquire ownership of large tracts of land, as well as many diffferent types of business and industry. Even the transportation systems that were established under colonial rule were under the ownership and control of the colonizers. Following World War II, this historic form of colonialism was largely brought to an end. The political leaders of America, along with her allies in Europe, sat down together at the Bretton Woods Conference. They agreed upon a reconstruction plan that attempted to address both the needs for recovery from the war’s impacts across Europe, and also the needs for economic development in the former colonies, the Third World. The World Bank became the institution with a mission of supporting the development of so-called “lesser developed economies” across the Third World. They designed development fijinance institutions, which were given a set of tools designed to overcome the obstacles to economic development. These tools existed and were operated similarly to the economic infrastructure tools found in Europe and America. During my time serving as president of the American Indian National Bank (ainb), I recruited experts in business and economic development, primarily those who had assisted Peter MacDonald and his colleagues to conduct their aiprc Economic Development Task Force research and studies. These individuals included Joe Baca and Bill Weakee, from Indian Pueblo communities in New Mexico, who had formed the American Indian Development Corporation, and Steve Stallings, who was then executive director of the United Indian Development Corporation,

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based in Los Angeles. They joined together and studied the Task Force 7 work where the aiprc task force left offf. Meetings were held in the offfijices of the ainb, and they looked at the obstacles that our small national commercial bank, ainb, was facing as we tried to make business and corporate loans to Indian tribes and their business organizations. They observed that the many obstacles that Indian Country experienced were common to those Third World countries that were being served by the World Bank and its clientele of colonial nations saddled with less-developed economies. The ainb designated this group as a “Task Force on Extraordinary Obstacles to Indian Tribal Economic Development.” Over the course of many meetings and a year and a half of work, they proposed that the U.S. government should establish a government-sponsored enterprise that would be called the “Indian Development Finance Corporation” (idfc). The corporation was designed to be a mixed-ownership corporation where the ownership would be shared between its tribal government shareholders and the United States government. We concluded that the corporation should issue stock to those tribes who wished an ownership stake. Only tribes, not individuals or corporate entities, would be given the opportunity to buy stock in the corporation. We wanted to have a corporation that was created by the federal government and in which the federal government invested seed capital to leverage the capital the tribes might be willing and able to invest. The federal government’s stock would be nonvoting “preferred shares” versus the common stock of the tribes, with voting rights to elect a board of directors. The board would have the authority to hire the idfc management and make policy for the idfc. We all thought that the corporation should be largely independent of the federal government by having its management be selected by the tribal shareholders. In that way, management would be accountable to the tribal shareholders, not the federal agencies. The federal government would also have a position on the board with extraordinary powers to supervise how the corporation used the capital that came from the federal government to make loans and investments across Indian Country. Our task force concluded that the corporation should be created by an act of Congress, comparable to the way in which the government-sponsored enterprises (gse) known as Fannie Mae and Freddie Mac were created. These gse organizations were created to provide government support for development of the U.S. housing market by offfering mortgage loan guarantees to the nation’s banking industry, including savings and loan associations. The legislation that we envisioned should provide that the initial offfijices would be housed in a federal agency, such as the

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Department of the Interior, where an offfijice already existed to administer the Indian Financing Act authorities. A major diffference would be that the idfc would not simply be an arm of the federal agency, but would be independent, operating under its own shareholder-elected board and with management hired by the board. Once the authorized stock was issued and sold to the tribes, the idfc would move out of its offfijices in a federal agency and locate itself where it would be accessible to the market it was designed to serve. Once I went to work for Senator Inouye at the beginning of the 100th Congress, I briefed him on this work and the proposal that had come out of the aiprc Economic Development Task Force of tribal leaders. Senator Inouye was very supportive of this idea of a World Bank–like development fijinance corporation. He saw that it could be modeled after the World Bank regional development fijinance corporations, such as the Asian Development Bank and the Inter-American Development Bank. He directed me to begin right away in putting together the proposed legislation. I consulted with the Congressional Research Service and the Senate Legislative Counsel to develop and draft the legislation. The Indian Development Finance Corporation bill became S. 721 in the 100th Congress, and a companion bill was introduced in the House by Congressman Udall. We scheduled hearings in the later part of 1987 and into 1988 before taking the bill to an Indian Afffairs Committee markup in the summer of 1988. Both Senator Inouye and Senator Evans continued to be very supportive of this legislative proposal, as were the diffferent tribes who came to testify at our hearings. The task force that I had assembled while president of the American Indian National Bank continued to provide their expertise and assistance and were called upon to provide testimony. The bill was fijinally reported out of the Indian Afffairs Committee near the very end of the 100th Congress, so we had to juggle our schedule to divide our time between our work on the Tribal Self-Governance Demonstration Project and the Indian Gaming Regulatory Act as well as legislation to begin establishing a new museum within the Smithsonian Institution, the National Museum of the American Indian. When we requested testimony from the Reagan administration, they declined to support the proposal, claiming that the bill was not truly needed as the bia was serving the fijinancing needs of Indian Country through the Indian Financing Act Guaranteed Loan Program. They offfered no comment on how our proposal was taking a new approach pioneered by the World Bank, the development fijinance approach.

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When our bill was fijinally passed by both the House and the Senate in October of 1988 and sent to the White House for the president’s signature, I received a call from the White House congressional relations stafff telling me that the president had decided that he was going to veto S. 721. When I demanded to know why, he explained that the president had decided that, on principle, he did not think that there should be any more “gse type institutions” (government-sponsored enterprises like Fannie Mae) created. President Reagan was simply opposed to them on principle and had reluctantly decided that he must veto our bill. When I reported this back to Senator Inouye, he attempted to call the president, but was told that Mr. Reagan was unavailable due to the press of urgent business. Senator Inouye then told me that as this was Reagan’s last year of his second term in offfijice, we should wait until next year. In the fall of 1988, Reagan’s vice president, George H. W. Bush, was elected. The following winter, after President Bush had made his chief-of-stafff appointment, we heard that Dr. Eddie Brown was appointed to serve as assistant secretary of the Interior for Indian Afffairs. Eddie was an educator and social worker from the Pascua Yaqui Tribe in southern Arizona, but relatively inexperienced with the ways of Washington, DC. I was continuing with my job as stafff director to Senator Inouye, and as soon as Eddie Brown had been confijirmed by our committee and sworn into offfijice, I called Eddie and made an appointment to meet with him. When he asked what I wanted to discuss, I told him the story of our bill, the Indian Development Finance Corporation Act from the 100th Congress, and what I had been told by Reagan’s stafff as a reason for his veto of our bill. Eddie assured me that he would look into his superiors’ views, and we arranged our meeting to follow up on my question. When we sat down in his offfijice in the Interior Department, he told me that he had bad news about my bill. He said that he had “run it up the flagpole” and his contacts in the White House had informed him that the new president was inclined to take the same position as his former boss, Ronald Reagan. He said that they had been very explicit, telling him that “If Senator Inouye decides that he wants to introduce the same bill that President Reagan had vetoed, they would regard this bill as Veto-Bait. If we were able to pass the bill again in the 101st Congress and send it to the President for his signature, he too will veto this same bill for the same reasons.” I reluctantly relayed this message to Senator Inouye, and he simply shook his head and said that we had a lot to do and that he saw no need to engage in an exercise in futility.

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The Indian Development Finance Corporation Act, Part II It took over twenty years for the Indian Development Finance Corporation Act to surface again. In the fall of 2008, I celebrated with many of my friends across Indian Country when Barack Obama was elected president. Candidate Obama had, during his campaign for the presidency, reached out to Native American voters to a degree that impressed us like no one else had ever done. He visited tribal communities across the West and even went to the headquarters of the Navajo Nation and met with their leadership. When he came to Montana, he took the time to meet with the leadership of all seven tribes in the state at a group meeting in Butte. He also visited the Crow Indian Nation at their headquarters near the town of Hardin, where, during his stay, he was given an Indian name by the Good Eagle family. Shortly after the 2008 election, at a large gathering of Indian leaders that took place in January 2009 at the Pechanga Tribal Casino and Resort near Los Angeles, I had the opportunity to spend some time with my former boss, Senator Inouye. I asked the Senator if, twenty years later, he would be willing to reintroduce bill S. 721, which had been passed in the 100th Congress, the Indian Development Finance Corporation Act. He responded, “You mean the bill that Reagan vetoed?” I told the Senator that I did not think that President Obama would follow the lead of Ronald Reagan and veto this bill if the 110th Congress were to pass it just as their predecessors had done in the 100th Congress. Senator Inouye asked if I still had a copy of the bill, as passed by Congress, and I told him that I had saved my fijiles on this bill and would be able to “scan” copies, both of the bill S. 721 and the committee report that had been fijiled on the bill when it was considered in the Senate. He told me to send a copy of the bill and the committee report to his personal stafff. Although it had been a few years since he had stepped down as chairman of the Indian Afffairs Committee, I sent the documents to Senator Inouye’s stafff member, Ms. Kawe Mossman. It didn’t take Kawe long to give these to the Senate Legislative Counsel’s offfijice, where they were able to quickly update it and have it ready for the Senator to reintroduce into the 110th Congress, where it would be assigned a new bill number. Senator Inouye sent word back to me through his stafff that he would be introducing this as the principal sponsor and asked if I could contact tribes who were in other states across the West to ask their senators to join as cosponsors. I contacted tribes in Montana, who informed Senator Jon Tester that Senator Inouye would be introducing the Indian Development Finance Corporation bill, and he

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agreed to sign on as a cosponsor as did Maria Cantwell from Washington State, both of whom are members of the Indian Afffairs Committee. Our bill was assigned the bill number S. 439, and the Indian Development Finance Corporation legislation was referred to the Senate Indian Afffairs Committee after a twenty-one-year hiatus. At that time, the committee chairman was Senator Byron Dorgan of North Dakota, and his stafff director for the committee was Ms. Allison Binney. Once I had a copy of S. 439, I sent copies by email to the offfijices of the Afffijiliated Tribes of Northwest Indians, and at the next meeting of the atni I presented the bill at a meeting of the Economic Development Committee that took place at the end of February 2009. At this meeting, most of the tribal leaders who were present were in their thirties and forties, so they had no direct memories of the actions taken by the atni and the ncai when they took part in congressional hearings on the Indian Development Finance Corporation bill, S. 721, back in 1987 and 1988. However, my friend Antone Minthorn, chairman of the Umatilla Tribes of Oregon, was also chair of the atni Economic Development Committee at that time, and he and I spoke to the others at this atni committee meeting regarding the history of S. 439. After much discussion to learn how the idfc would work in practice if the legislation were to pass today, they took a vote on it and endorsed the bill in its new form. Antone expressed to me his appreciation that Senator Inouye and I were willing to make another efffort to get this bill passed after it had been vetoed by President Reagan in 1988. Antone assured the others that this bill was based on recommendations that came from the tribes through the work of the aiprc and its Economic Development Task Force. He also spoke of his memories of the aiprc, as he had been in offfijice with the Umatilla Tribes as a member of their board of trustees during the 1970s. He had participated in the aiprc meetings and read their reports. He reminded the other tribal leaders that Senator Mark Hatfijield from Oregon had also served on the Policy Review Commission as one of the congressional members, along with Senator James Abourezk. Another name familiar to the group was that of Ken Smith, who also served on the aiprc Economic Development Task Force along with Peter MacDonald, chairman of the Navajo Nation. Ken Smith was also well known to atni members as he had a successful career as the ceo of the Warm Springs Tribes Forest Products Company and Sawmill. Ken was also a member of the Confederated Tribes of Warm Springs. When Ronald Reagan was elected president in 1980, upon Senator Hatfijield’s recommendation, Ken was appointed by the president to serve as the assistant secretary for Indian Afffairs in the Interior Department, succeeding

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Forrest Gerard. He served in that position until near the end of President Reagan’s fijirst term, and after he resigned to return home to Warm Springs, he was succeeded by Ross Swimmer, former principal chief for the Cherokee Nation in Oklahoma. Ross was assistant secretary when Reagan made the decision to veto S. 721 in 1988. Once the atni adopted a resolution of support for S. 439, this resolution was referred to the National Congress of American Indians. The organization holds regular meetings of tribal offfijicials in March of each year to provide these offfijicials an opportunity to come to Washington, DC, and make a professional call upon their congressional delegation. I was able to make the trip to Washington in March of 2009 and to meet with the ncai Executive Board in their working session. Unlike the atni organization, I was not able to generate much interest around the table where the ncai Executive Board of Vice Presidents from the diffferent areas of Indian Country was having meetings. Normally, the atni president has a place at the table with the other regional vice presidents, but in this case Swinomish tribal chairman Brian Cladoosby was not able to attend this executive board meeting of the ncai due to pressing business at home. In his absence, the executive board “tabled” the atni resolution of support for the Indian Development Finance Corporation legislation. It was tabled to the next ncai meeting, but I was not able to attend as it was held in Alaska. When I was in Washington, DC, for the ncai winter meeting in the Capitol, I paid a call on the Senate Indian Afffairs Committee offfijices and was told that the stafff director, Allison Binney, was unavailable. I was referred to a low-ranking stafff member who knew nothing about this bill. I persisted in seeking support from our national organization of tribes, the ncai, and was able to attend their 2009 annual meeting, which took place in November in Palm Springs, California. At this meeting, I saw Allison Binney, who advised me that I should ask Senator Inouye to “tack your bill onto one of the appropriation bills coming out from the Committee on Appropriations; he’s the chairman there.” I didn’t bother to point out to her that such a step by Senator Inouye would be a major breach of protocol in the Appropriations Committee process. I was fijinally able to have our atni resolution of support for S. 439 passed by the ncai tribal delegates. Following this, I requested the ncai to ask the Senate Indian Afffairs Committee to conduct a hearing on S. 439. They agreed to a hearing, which was scheduled in April of 2010. Senator Inouye was not able to attend the hearing due to his schedule as chairman of the Senate Appropriations Committee, but his stafffer, Kawe Mossman, attended—as did Ron Allen, the chairman of the Jamestown S’klallam Tribe in Washington State and a member of the ncai Executive Committee. Ron and I were

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the only other witnesses at this hearing, as the hearing was also to take testimony on three other bills that had been referred to the committee. There were four senators, including Chairman Dorgan, Tom Udall from New Mexico, Jon Tester from Montana, and Al Franken from Minnesota. Each of these senators paid close attention to the testimony that Ron Allen and I provided, and asked some thoughtful questions. Unfortunately, the Senate Indian Afffairs Committee did not schedule a “markup” session on S. 439 before the end of the 110th Congress. Allison Binney responded to my repeated inquiries about a markup by passing word back through her stafff that the schedule was just too busy. I know that Senator Inouye did send a letter to Chairman Dorgan requesting a markup, as did the ncai organization through their vice president, Ron Allen. Since 2010 was a midterm election year, the Congress adjourned by the end of September and came back into session only to fijinish their work on appropriation bills. In my testimony on the bill, I emphasized the long history of this proposed Indian Development Finance Corporation and the connections that should be made between it and the Regional Development Banks created by the World Bank. The idfc would be empowered to establish an offfijice that could help tribes issue tax-exempt economic development bonds on the same basis that state and local governments engage in fijinancing economic infrastructure. I also pointed out that since this bill was originally introduced in 1987, this was the same time frame as when Congress passed the Indian Gaming Regulatory Act that opened the door to tribal gaming casinos. In the intervening years, the movement for tribal casinos had spread nearly everywhere in Indian Country, except those areas that were too isolated to support a fijinancially successful tribal casino. In terms of population, that means that tribes located across the Midwest, including Montana, North and South Dakota, and most of Oklahoma, and many tribes in remote corners of the states of New Mexico, Arizona, California, and Minnesota are too far from a population that would support a multimillion-dollar casino enterprise. Also, the two hundred–plus Alaska Native villages are simply not eligible under the igra law. I am sure that these demographic and geographic facts were not lost on the senators who attended the Senate Indian Afffairs April 2010 hearing on the Indian Development Finance Corporation bill. Ron Allen’s testimony pointed out that all those tribes who have been able to create even a moderately successful tribal casino, such as his own tribe, the Jamestown S’Klallam, are having a very positive impact on the local economy. They create jobs that are fijilled by local workers from their neighboring towns and villages as well as offfer opportunities for service

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industries that support the tribal casino resort complexes. He urged the senators to consider how the idfc would provide a range of technical and investment advisory services to all tribes and give successful gaming tribes the opportunity to leverage the success that they have achieved by investing in the economic opportunities for tribes that may be resource-rich but do not have the fijinancial means to develop these natural resources. When we lost time and opportunity to move this bill through the Indian Afffairs Committees and to President Obama for his signature, I joined the rest of my colleagues in witnessing the 2010 national elections and the turnover in the House of Representatives from Democratic to Republican majority control dominated by Tea Party Republicans. The following January, I contacted Senator Inouye’s offfijice to see if he thought it would be worth it to try again to get the idfc bill passed. He sent word that he thought that, given the composition of the 112th Congress (known as the Tea Party Congress), it would be too much to expect that we could move the bill now. I did not think there was a compelling case to overcome the logic of the Senator’s opinion. I think that he was also disappointed in the lack of active support from the tribes across Indian Country. He was aware that only a small number of tribes joined the atni tribal leaders in their willingness to actively campaign on behalf of the idfc proposal. The concern that I am left with is how can we educate the tribal leaders of today?

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CHAPTER 9

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Senator Inouye Travels across Indian Country, 1987–1989

A

fter our very busy schedule in the 100th Congress, establishing a demonstration project in tribal self-governance compacting, bringing the Indian Gaming Act to the floor of the Senate for a vote, and negotiating the diffferent compromises that were needed, Patricia Zell and I felt that we needed a break from the pace that Senator Inouye had been working at since taking over as chairman of the Senate Committee on Indian Afffairs at the beginning of 1987. When the Senator hired me, I had assured him that Patricia and I could help him to learn all that he wanted to learn and to see all that he wanted to see of Indian Country. In the fijirst two years that Patricia and I worked together as a team on the committee stafff, Senator Inouye’s interest only grew with each bill that we took up and each hearing that we scheduled. I was very surprised when I soon saw for myself that he made his work as Indian Afffairs Committee chairman his highest priority. After all, he also had a seat on the Appropriations Committee, and he was chairman of the Commerce Committee. I kept a record of the number of trips that we made during those fijirst two years and remember that it grew to a total of twenty-fijive. Twenty-fijive trips to all the diffferent regions of Indian Country—regions where tribes were located and where we were asked to come so they could meet with the new chairman of the Senate Indian Afffairs

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Committee. They all wanted to show him their tribal homelands and tell him the stories of their history. One of the fijirst trips that I recall is the fijive days we spent in Alaska. After having flown from Washington, DC, to Anchorage, we were greeted by the leadership of the Alaska Federation of Natives (afn). One of the afn leaders was state senator Willie Hensley, who urged us to visit his home in Kotzebue, Alaska. Two days later, we boarded a military aircraft to fly across the state to the coast of the Bering Sea and then go north above the Arctic Circle to the Inupiat village of Kotzebue. We learned that this was the home base of the Nana Regional Development Corporation, one of the twelve regional Alaska Native corporations created after the passage of the Alaska Native Claims Settlement Act (ancsa) in 1971. After a wonderful dinner where we were invited to taste whale and seal meat, we were treated to a show of Inupiat songs and dances. The next day we took a much smaller aircraft to land in several small villages, including Noorvik and Chevak, and came back to Kotzebue for the night. We then took a trip along the coastline of the Bering Sea, where we visited the village of St. Mary’s. At each stop, we were hosted by the local people with their local foods and their distinctive ceremonies, and the Senator listened to their stories. From St. Mary’s we flew to Bethel, a larger town along the Kuskokwim River. Once we landed at their small city airport, we were greeted by the mayor, who asked the Senator what he would like to see. He said that he was most interested in seeing the jail in Bethel. Once the mayor got over his surprise, he handed us offf to the local police, who took us to visit the jail. The Bethel City Jail was a depressing place, housing about a hundred inmates who all looked to be Native people. The head jailer explained that nearly all of them were in there for offfenses related to alcohol abuse. The next day, after staying overnight in Bethel, we flew from Bethel to Kodiak Island, where we enjoyed a visit with many of the Aleutian people who lived in Kodiak. We then flew across the water to the town of Sitka, which is on the southwestern coast of the mainland. Once we were registered in our hotel in Sitka, we toured the town and then visited the Mt. Edgecumbe Indian Boarding School, which at that time was operating as one of the network of bia schools. I knew that this was the school where my uncle, Allen Crain, was superintendent in the 1970s when he still worked for the bia school system before retiring to Rocky Boy, Montana, which he and his wife, my aunt Anna Parker Crain, called home. Allen Crain had always remembered me as one of his third-grade students at Parker Day School when he fijirst began teaching in the bia school system after serving in Europe with the army during World War II.

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On our tour, we learned that Mt. Edgecumbe secondary school had been an Indian boarding school for many years, serving students from the 220 diffferent isolated Native villages located in Alaska. The Alaska Native students were taken by boat and small aircraft to Anchorage and then to Sitka, where most of them stayed for the nine-month-long school year before returning home for summer vacation. Because the villages were all small, isolated communities with very limited job opportunities, many of the students moved away from home once they fijinished school at Mt. Edgecumbe. From Sitka, we took a short flight to Juneau, the state capital and home of the Sealaska Corporation, owned and operated by the Tlingit and Haida Indians who occupy sixteen villages located along the coastline of Southeast Alaska. We were treated to a large turnout of Tlingit and Haida people who hosted us and, after meetings in the corporate headquarters, entertained us that evening with a wonderful display of their traditional singing and dancing. Exhausted and bowled over by what we had seen across the State of Alaska, we then took the long flight back to Washington, DC, and home to our families to continue our work at the committee. In my memory, those were wonderful years during which we were educated about the cultural ways and history of many diffferent tribes and Indian nations along with our inspiring leader, Senator Daniel K. Inouye. Several months after our Alaska trip, we agreed to accept the invitation of the Oglala Lakota Tribe and took a flight to Rapid City, South Dakota. We then transferred to a small aircraft and South Dakota senator Tom Daschle met us at a small airstrip outside the town of Pine Ridge, where we visited the site of the infamous Wounded Knee Massacre of over two hundred Oglala Indians by the Seventh Cavalry. We next visited the Rosebud Indian Reservation at Mission, South Dakota, which is located adjacent to the Pine Ridge Reservation, where we met with members of their tribal council as well as with Dr. Lionel Bordeaux, who was president of Sinte Gleska Tribal College, one of the better-known examples of the tribal college system of thirty-four diffferent higher-education institutions scattered across the West. From Mission, South Dakota, we flew back to Rapid City and then on to Great Falls, Montana, where we spent the night. The next day we caught a small plane and flew to the town of Havre, which is near the Canadian border. Once we got to Havre, we were picked up by representatives from the Chippewa Cree people of the Rocky Boy Indian Reservation, my relatives. I was very proud to introduce my boss, Senator Inouye, to the tribal offfijicials at Rocky Boy, where our meetings were

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held in the Agency school gymnasium. When we fijirst arrived at the Rocky Boy Agency village, Senator Inouye noticed that one of the buildings was named after my father, William Gilbert Parker, who had passed on a few years before in 1985. It was now a youth center, as my father dedicated many hours and days to supporting the youth and drawing attention to their needs for occupational therapy. Before leaving the reservation, Senator Inouye asked if we could take a tour of the area where my family had a home, a few miles away in Parker Canyon. When we left to visit Parker Canyon, we did not have time for a stop where we could have visited with my uncle and aunt, Allen and Anna Crain, in their family home at the head of the canyon. Instead, we continued back to Havre to catch our plane to Billings, Montana, located over 250 miles from Havre in the south-central part of the state. We spent the night in Billings, and then we were met at our hotel by a delegation of tribal offfijicials from the Crow, Northern Cheyenne, and Shoshone Arapaho Tribes. The Shoshone Arapaho are located on the Wind River Indian Reservation in Wyoming. Our meetings took place at the bia area director’s offfijices in the center of the small city of Billings. There was a large turnout from these three communities, whose homes are several hours south of Billings. The Crow Indian Reservation is located where the Little Bighorn River flows south to join the Yellowstone River. It is also the location of the Little Bighorn Battlefijield National Monument, also known as Custer’s Last Stand, where the National Park Service has constructed an excellent facility to educate the public about the history of the area and the famous battle. As the Senator was an avid reader, he knew the diffferent versions of this story of Custer’s Last Stand, and he was delighted to be asking the Cheyenne tribal offfijicials about their version of this historical event. He knew that they were allies of the Dakota Lakota people in those years while the Crow, their traditional enemies, provided Indian scouts to Custer in his campaign. We also discussed the interest of the tribes in reaching a settlement of their claims for a share of water rights to the flow of both the Little Bighorn and the Yellowstone Rivers. We made many other trips just like this where we would go out to where the tribal people lived and meet with them so they could show us what problems they had with water rights, with land claims, and with their housing, medical clinics, and schools. The Senator showed us that he truly cared about the tribal peoples and their problems as well as their achievements. We were usually entertained with native dances and singing and ceremonies. The Senator enjoyed sometimes sitting with and being part of the drum group as well as taking part in a traditional Round Dance. When we were asked by the senator from New Mexico to make a

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visit to the Navajo Nation, we started that trip by flying to Gallup, New Mexico, on a nonstop flight from Washington, DC. After we arrived at our hotel in Gallup, we were invited by Navajo Tribal offfijicials to take part in a “sunrise ceremony” to be conducted by tribal elders. Early the next morning, a group of traditional Navajo Dine people met us at our hotel in Gallup and took us about thirty miles into the country, where we gathered on a hillside to watch the sunrise. The elder in charge of the event offfered prayers on behalf of their guests and conducted a sunrise ceremony for us, sprinkling us with sacred corn pollen. On that same trip to the Southwest, we flew in a small charter plane to the only airstrip that serves the Hopi Indian Reservation, near the town of Polacca at the base of Second Mesa. Once we arrived and disembarked, we were met by a group of tribal offfijicials who told us that we had been invited to meet with a group of the Kikmongwi, priestly elders who were assembled in the kiva on top of Second Mesa. Once we had a chance to refresh ourselves, we were loaded into two vehicles and drove on a narrow dirt road up the side of Second Mesa and parked not far from where the kiva was located. The kiva is the primary location where ceremonies are conducted, and we were told that normally outsiders were not allowed to enter the kiva but an exception had been made for Senator Inouye and his aide. When we were told that the elders were ready to meet with us, Senator Inouye and I were escorted to the entrance of the kiva. This was a small opening in the top of the mesa where the kiva had been hewn into rock. The opening led to a ladder that we descended carefully due to the Senator’s disability (he had lost his left arm in World War II). He assured me that he could navigate the ladder down into the kiva and meet with the Kikmongwi. Once we were fijinally in the heart of the kiva, we were met by a group gathered in the most sacred part of the kiva. After greeting us in their native language, the interpreter told us that the elders wanted to explain to him that they had broken their tradition and allowed him to enter the kiva as their guest because they had heard of his work on their behalf. Senator Inouye thanked them for bestowing such a great honor upon him and assured them that he had accepted the responsibility of being the chairman of the Indian Afffairs Committee because he had only begun to learn of the great injustices that had been done to the Native people in the United States after he was elected to the Senate to represent the State of Hawaii. He stopped and then raised his arm and held in his clenched fijist an ear of their sacred corn that had been given to him on our arrival to tell them that he was taking an oath to our common creator that he would do everything in his power to correct the many injustices that had been

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done, and he wanted to hear more from them. They expressed their appreciation and gave a response that went on for ten more minutes. The interpreter then spoke as he turned to the Senator and said that the elders had agreed that the honor had been paid to them by the fact that he came all the way from Washington, DC, to meet with them in the kiva. After the elders had the chance to come and shake the Senator’s hand, the interpreter led us back up the ladder and out of the kiva. When we arrived outside, we once again got into the vehicles and rode back down to the small village at the bottom of the mesa. There we were hosted at a group luncheon by the elected Hopi tribal council and Polacca town offfijicials. After lunch, I had a chance to take Patricia aside and tell her the story of our visit to the kiva and the exchange with the elders. On the trip back to the main airport, the Senator was quiet as he absorbed what he had heard and seen, but once we were back on our commercial jet out of Phoenix, he relaxed and was very pleased with the experience of his visit with the Navajo and Hopi medicine men. There were other trips to meet with the tribes of the Pacifijic Northwest, California, and Oklahoma. They were all memorable in their own way, as each region of Indian Country has a similar yet unique history in their relations with the American colonizers and the experience of encountering settlers as they moved across the West. Yet, these experiences were all very diffferent in the expression of tribal cultures that persists today, and cultures that are now beginning to thrive, thanks in large part to the historic work that was done by Senator Daniel Inouye during the years that he served as chairman of the Senate Committee on Indian Afffairs. Patricia and I often remarked that at each stop, Senator Inouye fell in love with the people and embraced their diversity and beauty.

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CHAPTER 10

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The National Museum of the American Indian Act

A

s Patricia and I entered the New Year, 1989, after our intense travel schedule and work together on the Indian Afffairs Committee, we felt like we just wanted to catch our breath. That was when we got a call from offfijicials at the Heye Foundation who administered the estate of George Gustav Heye. George Heye was a wealthy man who had become a collector of the art and artifacts of the Native peoples of the Americas. During the years 1920 through 1950, he traveled extensively across both North and South America, amassing a collection of over 800,000 pieces of art and artifacts. He purchased a large warehouse in the New York suburb of Queens to store his collection, and he found a much smaller building in Harlem that he established as a private museum to display selected items from the collection. Mr. Heye also asked several of his wealthy friends to join with him in creating a private museum, which they called the Museum of the American Indian. After Heye died in the early 1950s, his friends established the museum as a private foundation to administer the funds that remained of his personal wealth and to use the income generated from these funds to maintain the Museum of the American Indian. The trustees of the Heye Foundation did their best to make the funds last as long as they could, but in the early 1980s they realized that they would

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soon exhaust the funds. They began looking for a home for this collection and contacted the Smithsonian Institution. The Smithsonian, as a federally chartered institute housed on the Mall in Washington, DC, is supported with funds appropriated by the U.S. Congress. When the Heye Foundation trustees learned through their contacts in the offfijice of New York state senator Pat Moynihan that Senator Inouye had assumed the role of chairman of the Select Committee on Indian Afffairs, they expressed their interest in having the Smithsonian accept the Gustav Heye collection. They contacted the lead offfijicial of the Smithsonian, Secretary Robert McAdams, and Senator Moynihan to express their idea that the Smithsonian should consider creating a new member of the family of museums within the Institution. Senator Moynihan paid a call on Senator Inouye and asked if he would agree to meet with the secretary of the Smithsonian to discuss this proposal. When Senator Inouye met with Secretary McAdams of the Smithsonian, he heard that the secretary wanted to know if the Senator would be interested in talking with representatives of the Heye Foundation and making a trip up to New York City to see this collection. Senator Inouye asked Patricia and me to accompany him on his trip to New York City and see the Museum of the American Indian and the Heye collection of artifacts. Senator Moynihan played the role of host along with a member of the museum’s trustees, David Rockefeller, heir to the Rockefeller fortune and a philanthropist. When we arrived at LaGuardia Airport near New York City, we were met by Mr. Rockefeller’s stafff and then flew into Manhattan via his private helicopter. We were taken to Rockefeller Center and disembarked on the landing pad at the top of the building. After briefly meeting with Rockefeller in his offfijice, we were then put into a limousine and taken uptown to the Museum of the American Indian in Harlem. We were given a guided tour during which Senator Inouye discovered a Winchester rifle in a display case where the tag identifijied it as belonging to Chief Sitting Bull. The rifle had been given to the chief when he toured Europe with Bufffalo Bill Cody’s Wild West Show. Senator Inouye picked the rifle up and held it out to me, saying, “Look, Alan, they have your grandfather’s rifle.” Senator Inouye always remembered that Sitting Bull was my great-grandfather, part of my family history that I had shared with him when he interviewed me and offfered me the job. My maternal grandfather, George Baine, was known by his descendants as the son of Sitting Bull’s youngest daughter. This building in Harlem was cramped because it was so full of the prized possessions of Heye. Next, we were then taken to the museum’s warehouse in Queens, where we were astonished at the contents. The three-story building was full to the

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brim with Heye’s collection of artifacts. They came from the tip of South America to the Arctic in the far north. I still remember looking at a rack that held perhaps a hundred buckskin dresses. Heye must have taken many trips where he returned with trunks full of clothing and ceremonial dress along with a large collection of weapons. He amassed his collection in the 1920s through 1950, when he fijinally retired and passed away. The Heye Foundation had been looking for many years for a well-established institution to take on the tasks of cataloging the artifacts and putting them in safe storage. They knew that the small building Heye had purchased in Harlem was grossly inadequate to do justice to the role of displaying this collection to the public. No doubt David Rockefeller was delighted when he learned that Senator Inouye, the chairman of the Senate Indian Afffairs Committee, was willing to come to New York City and see the Museum of the American Indian and its phenomenal collection. When we fijinished looking over what was only a fraction of this huge collection in the museum warehouse in Queens, we rode back to Rockefeller Center and were taken up to the top floor to see Mr. Rockefeller and one of Senator Moynihan’s stafff representatives. They explained to us that there already had been preliminary discussions between Senator Moynihan and the secretary of the Smithsonian Institution, Robert McAdams. On behalf of the Heye Foundation, they had proposed to the secretary that they wished to make a bequest, a gift to the Smithsonian of the Heye collection. We were told that Secretary McAdams expressed some interest, but suggested that a campaign of sorts needed to be organized to persuade the Smithsonian trustees of this, as well as discussions with the proper leaders in Congress as it would take an act of Congress to create another museum at the Smithsonian. When we returned to Washington, DC, Senator Inouye asked us to arrange an appointment with Secretary McAdams, which we promptly did. When we went to visit him in the Smithsonian’s Castle building on the Washington Mall, which housed the offfijices of the secretary, we were joined by representatives of the Natural History Museum, as they had the largest collection of Native American artifacts, along with representatives of the American History Museum. After preliminary discussions about the idea of creating a new museum that would focus on American Indians, Senator Inouye asked if we could be given a tour of the collections of the Natural History Museum. There we were shown around the fijirst floor, where the dioramas of Natives in traditional settings and dress were displayed, and then shown the basement to see their collection of artifacts. Unlike the Heye museum,

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the Natural History Museum took a scientifijic approach characterized by the work of cultural and physical anthropologists as well as archeologists. Their main interest was in studying historic artifacts and items that were collected from the battlefijields during the Indian Wars era of American history. In addition, their collection contained clothing that had been found in graves, and skeletons. Patricia and I had the same reaction to being shown items that we knew would be considered sacred by traditional leaders and healers among the people. I knew that many tribal people considered it sacrilegious to possess such items, and that many would demand that stolen grave goods be returned to the contemporary descendants of the ancients. In fact, when we walked past several rows of large boxes labeled Medicine Bundles, I felt a strong presence of their spirits. When we returned from our tour, Senator Inouye asked what we thought if he were to propose a marriage between the Heye Foundation and the Smithsonian Institution. Patricia and I both felt the same about this: it would be a wonderful thing to see the Smithsonian Institution create a new museum that would be dedicated to the American Indian, but we felt that we should fijirst consult with tribal leaders and various Indian organizational leaders. He agreed and asked us to embark on such a consultation mission as soon as we could. I know that Patricia and I also felt that such an initiative needed to include consulting Native leaders who could advise on how to react to the collection of medicine bundles and other very sensitive items in the Natural History Museum. One of the fijirst people that I called was Suzan Harjo, my friend and colleague from the days when we worked together on the American Indian Religious Freedom Act. Suzan had recently been appointed to serve as the executive director of the National Congress of American Indians by Quinault president Joe Delacruz. Suzan quickly called Joe and other key members of the ncai Board, as well as scholars such as Dr. David Warren from the Santa Clara Pueblo and his friend Simon Ortiz. They quickly spread the word, and everyone who heard of Senator Inouye’s interest became immediate supporters and asked what they could do to help. After talking with Suzan, I also knew that we had another mission beyond simply creating a new American Indian Museum. We had to fijind a way to “repatriate” these items in the Natural History Museum to the people who would know how to take custody of them and perform the cleansing ceremonies needed. We learned that many museums, both public and private such as the Heye Foundation, had obtained, under very suspicious circumstances, offfensive collections of grave goods and human remains.

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To accomplish this goal, we drafted a bill with Suzan’s help that we called the Native American Graves Protection and Repatriation Act (nagpra). The nagpra bill was not passed until 1990, whereas we succeeded in passing the National Museum of the American Indian Act (nmai) in 1989. For us, the next step was to have an offfijicial inventory conducted of the collections of the Smithsonian Institution National Museum of Natural History. This created the precedent for repatriation of grave goods and other such items to all those tribes who shared a common history of having discovered that their ancestors’ gravesites had been robbed and all manner of funerary items stolen and sold to the highest bidder. Once the Smithsonian took the lead on the repatriation initiative, other museums that contained the same kinds of collections were approached by representatives of many diffferent tribes to have their ancestors and their funerary objects returned to their descendants and their tribes. This initiative and the work on repatriation by U.S. tribal Nations continues to be carried on across the Pacifijic and the Atlantic by Indigenous leaders on behalf of their peoples. After we reported back to Senator Inouye on our consultation meetings and the enthusiastic response to the idea of creating a National Museum of the American Indian, we went back to see Secretary McAdams. Our Senator wanted to know from him what locations were available for a new museum on the Washington Mall. He took out a map that showed which museums were located where, and the Senator was delighted to learn that there was an unoccupied lot next to the Air and Space Museum. Secretary McAdams also mentioned several groups who were interested in building a museum and were eying this location, but no decisions had been made. From the meeting with Secretary McAdams, Senator Inouye immediately took us back to the Capitol Building and showed us his private offfijice on the third floor, where a big window faced the Mall and he could look directly down onto this open space next to the Air and Space Museum. It was obvious that he could already see in his mind’s eye a beautiful structure resting there, a new National Museum of the American Indian. With such a vision motivating him, we knew that our boss would want to move quickly to lock this space up. We needed to draft a bill and get the necessary legislation passed in Congress as soon as we could. We took up the tasks of organizing a series of hearings before the Senate Indian Afffairs Committee and selecting witnesses who could represent a good cross-section of Native leaders across Indian Country. We also contacted Senator Inouye’s friend Congressman Mo Udall, who was chairman of the House Interior Committee. Congressman Udall

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also became an enthusiastic supporter of the idea, and we coordinated our hearing schedules to allow tribal witnesses to make as few trips as possible while testifying before our two committees. In New York, the Heye Foundation trustees were also enthusiastic to hear from Senator Moynihan of the dedication and commitment exhibited by Senator Inouye and the ready support of Chairman Mo Udall. Their attention was focused on the question of where they could fijind a building to move the current Heye Foundation’s Museum of the American Indian to, as everyone recognized that it would take years to design and build a new museum in the space on the Washington Mall that we now considered to be dedicated to the Smithsonian Institution National Museum of the American Indian. They agreed with Senator Moynihan that there was a building at the southern tip of Manhattan Island that would be a good candidate, and they sent word to Senator Inouye through our Committee on Indian Afffairs offfijices. As soon as we could schedule it, we all took another trip up to New York and were escorted by Senator Moynihan and his stafff to visit the Alexander Hamilton U.S. Custom House building on the southern tip of Manhattan, just across the water from the Statue of Liberty. The Custom House is a historic building that was used as a processing location for generations of immigrants to disembark from their ocean voyages during the latter part of the nineteenth century. It is a majestic building constructed of white marble with tall columns in front. The Heye trustees and Senator Moynihan had discovered that the city had no use for it any longer and it had simply sat vacant for generations after the Immigration and Naturalization Service had abandoned the building for new quarters uptown on the East Side. However, the building had been maintained by the City of New York and used for special occasions and events. When we all visited as a group, we agreed that there was potential in using the building as exhibit and offfijice space for the Smithsonian National Museum of the American Indian. We also saw how ironic it would be for the National Museum of the American Indian to take over the Custom House that had been used to welcome visitors from all over the world. As the international visitors came to do their business at the United Nations, located in an impressive, iconic offfijice building in Midtown Manhattan, they would soon discover the new National Museum of the American Indian at a short distance from them in the former Custom House building. After holding a series of congressional hearings in Washington, DC, we succeeded in addressing the issues of how initial funding would be supplied by Congress as long as the new Smithsonian museum was successful in raising private

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funds to cover the design and construction costs. It was also agreed that the Heye Foundation warehouse in Queens would be decommissioned as soon as adequate storage space could be set aside in the Smithsonian storage facilities in Suitland, Maryland, a short distance from the U.S. Capitol. The Smithsonian had an excellent reputation for managing the care and storage of the kind of items contained in Heye’s magnifijicent collection of 800,000 artifacts. In record time, we succeeded in moving the bill that authorized the National Museum of the American Indian through the Senate, and Mo Udall’s stafff moved this bill through the House by the end of the year for President George H. W. Bush to sign it in November 1989. Soon after the bill was passed, we happily turned to the question of who could be found to become the fijirst and founding director of the new museum. I was delighted to fijind that my old friend Rick West, an attorney who had served with me on the board of directors of the American Indian National Bank, was interested in taking on such a challenging job. Rick had recently retired in 1986 from his role in Washington, DC, serving as a partner in the Fried, Frank, Harris and Shriver law fijirm, and started his own fijirm in Albuquerque with Kevin Gover and Sue Williams. However, he had always been aware of the role of expressive art in the world of tribal afffairs through his father, Dick West, a renowned Indian painter and sculptor. When he became aware of the work we were doing to develop legislation that would create a new museum dedicated to American Indian history, art, and culture, he felt this would be a way to pay homage to the lifework of his father. Fifteen years after the bill passed, in the summer of 2004, the National Museum of the American Indian, located on the last available space on the Washington Mall, opened its doors to the public. A historic gathering of over twenty thousand Native leaders, offfijicials, and tribal members took place. Dressed in their fijinest regalia, these elders, drummers, dancers, and other entertainers participated in a powwow gathering on the Washington Mall—a gathering that represented, for the fijirst time in history, Native dancers and singers from Alaska to Florida, including Native people from throughout South America, Canada, and the Pacifijic Islands. Rick had simply done a fantastic job over the past fourteen years, providing leadership within the Smithsonian on the plans for the museum and its design, and raising $100 million in the fijirst few years after Congress passed the legislation. His work made the building possible and he oversaw the selection of a team of architects and interior designers. Visitors to the Mall in Washington, DC, now see that the building is constructed in warm earth tones and represents a blend of styles from across Indigenous America. To top it offf, the building is crowned by a

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suite of offfijices that face the U.S. Capitol Building, and I know that Senator Inouye, from his offfijice inside the Capitol, could enjoy looking across to see the Smithsonian Institution’s National Museum of the American Indian and know that he brought his vision into reality.1

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CHAPTER 11

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Creating the Native American Graves Protection and Repatriation Act

T

he law authorizing the nmai also contained provisions that created the prototype for repatriation of Indian bones and grave goods back from public museums. This began when we toured the flagship museum in the collection of museums and monuments located on the Washington Mall. The Washington Mall is the historic open space that spans a ten-block area between the Lincoln Memorial at one end and the U.S. Capitol Building at the other end. The Natural History Museum is approximately in the middle on the west side of this space, across the Mall from the Smithsonian’s famous castle-like building that houses its headquarters. In our research on creating a proposal for a new National Museum of the American Indian, we were advised that the Natural History Museum possessed a great collection of artifacts and goods that could perhaps be transferred to the new Indian museum in the future. Senator Inouye was eager to see this collection to compare with the Heye Foundation’s collection, and Patricia Zell and I accompanied him on an arranged tour with the secretary of the Smithsonian, Robert McAdams. We toured the Natural History Museum and were invited to see a collection that was kept out of the public’s view in a suite of offfijices on the basement level. When we saw this collection, we were indeed impressed with the articles, and in response to the Senator’s question of “Where did these goods come from?” we

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were informed that many of them had come from old Indian graves scattered across the West. We were also shown scalps and other human remains that were in storage among the Smithsonian’s collections in the Natural History Museum. Patricia and I told the Senator that over many years, as diffferent tribes discovered that these grave goods had been taken from their ancestors, they had begun to request that they be returned to them, but the Smithsonian had refused to give any of them back to the tribes. Secretary McAdams informed Senator Inouye that he was not sure, but he thought that they needed to have legal authority to make such a return as they had become public property in the possession of the Smithsonian. Senator Inouye was appalled that this collection even existed in the fijirst place and that the Smithsonian thought they did not have legal authority to return them, even when a request had been made by a tribe who had done their own research and could show convincing evidence that the grave goods had been stolen from their ancestors. He quickly asked Patricia and me to schedule a series of congressional hearings so we could hear from those tribes who had these concerns, and from various physical anthropologists who could inform the committee as to the scientifijic value for the federal government in keeping these goods in their possession in the face of urgent requests that we knew would be coming from a great many tribes. Thus was born the Native American Graves Protection and Repatriation Act (nagpra). This law was designed on the model that we created and wrote into the nmai Act after we conducted a series of hearings, both in our hearing room in the Dirksen Senate Offfijice Building as well as several fijield hearings at locations central to Indian Country. Testimony given at our hearings told the story of a so-called “scientifijic investigation” that was conducted in the middle of the nineteenth century by the U.S. Army and the surgeon general to collect as many Indian skulls as possible in order to take measurements so they could be compared to measurements of Euro-Americans as well as African Americans. We were astonished to hear serious witnesses claiming that there were important, legitimate scientifijic reasons to keep in the possession of the U.S. government this collection of hundreds of Indian skulls, many of them housed in the Smithsonian’s collections. We also heard from Indian traditional healers and spiritual leaders who testifijied about the ongoing historical trauma that the grave robbing conducted by the U.S. Army and other branches of the federal government inflicted on the tribal peoples in the United States. We were told that only the proper burial of these human remains, in locations that needed to be kept confijidential, would make it possible to begin the healing process for many tribal communities.

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This testimony allowed us to proceed with urgency to draft provisions in the nmai law that not only responded to Smithsonian Secretary McAdams’s request for proper legal authority to return goods in the Natural History Museum collections, but laid the groundwork for the return of grave goods and ceremonial items that were in the custody of a great many public museums all across the United States. We not only authorized the return of these goods, but required that they be returned when the tribe or Indian community making the request could show historical evidence of their claims. We also heard from representatives of other Indigenous peoples whose human remains had been taken to the United States by collectors that came to their country in the past. Thus, the nagpra law became an international model that was highly praised across the world when it was adopted by Congress in 1990.

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CHAPTER 12

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Looking beyond Our Borders in the Twenty-First Century

A

s we near the end of the second decade of the twenty-fijirst century, I am convinced that it is time to formulate a new framework for Indian policy that looks to the future. This twenty-fijirst-century framework should build upon the visionary ideas formulated by past tribal leaders, particularly those from the Northwest who successfully fought to overcome the termination of tribal rights in the 1950s. I believe that they followed a philosophical commitment to unity among themselves, and that this gave them the self-confijidence and power to persuade a succession of U.S. presidents, beginning with John F. Kennedy, to bring an end to the federal government’s support for a policy of “termination.” Campaigning for the presidency in the fall of 1960, Kennedy met with representatives of the Indians and a group of tribal leaders and agreed to end the termination policy soon after he was inaugurated in 1961. He was informed by the Indian leaders of what they saw as the betrayal by the U.S. government of the commitments made in numerous treaties. President Kennedy appointed Stewart Udall, a congressman from Arizona, to serve as secretary of the Interior Department. Udall possessed a deep interest in Indian Afffairs and followed the work of the Commission on the Rights, Liberties, and Responsibilities of the American Indian. This private study group—which included

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among its members Meredith Wilson, president of the University of Minnesota; W. W. Keeler, principal chief of the Cherokee Nation; and other notable academic leaders from Harvard University and the University of Chicago—had conducted a multiyear study of Indian conditions. They published their report in January 1961 and told Secretary Udall of their work. The approach taken in their study and report was that government programs should not be imposed from above but should always be based on the initiative and intelligent cooperation of the Indians themselves.1 A second major event to take place shortly after Kennedy’s election was the convening of the Chicago Conference on Indian Policy. The Chicago Conference, which met at the University of Chicago in July of 1961 after Kennedy’s election, adopted a series of position papers that were given to President Kennedy in August 1962. Kennedy’s successor, President Lyndon Johnson, embraced the tribal proposals that were presented to him for a “Policy of Self-Determination.” This eventually led to the enactment by the U.S. Congress of the Indian Self-Determination and Education Assistance Act in 1975 (PL 93-638).

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The Indian Self-Determination Act Policy Paradigm A transition from the paradigm of “a unifijied front” among tribes, the focus for fijighting the battle to overcome termination, was accomplished when tribal leaders formulated a new plan and strategy around the proposals coming out of the 1961 Chicago Conference on Federal Indian Policy.2 Historians and academic scholars of today agree among themselves that the modern era of a new relationship between U.S. tribal Nations and the U.S. government began with the Chicago Conference and was adopted as government policy in 1975 with passage of the Indian Self-Determination and Education Assistance Act (PL 93-638). In the decades just prior to passage of this landmark legislation, Indian tribes were thought, by most federal offfijicials, to exist in a “state of pupilage,” to use the favorite term of federal offfijicials in the 1950s. Federal government agencies, primarily the Bureau of Indian Afffairs (bia) within the Department of the Interior, considered tribes as existing in a learning stage. This was an expression that came out of the dominant mindset of paternalism that characterized federal offfijicials of the time. The American public, to a large degree, shared this belief that tribal communities were largely incapable of governing themselves. Throughout the fijirst half of the twentieth century, the American public expected the Bureau of Indian Afffairs to oversee all

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local governmental functions and delivery of governmental services within tribal communities. The Indian Health Service (ihs) played a comparable role to the bia in providing and delivering public health services through a network of local clinics and regional hospitals. In 1975, at the time that the Indian Self-Determination Act was passed, over 259 tribal communities occupied Indian reservations, land areas set aside and “reserved” for them. These Indian reservations are located primarily in the Southwest, the Mountain West, along the West Coast, and in the Midwest. These reservation lands continue to exist in a federally protected status of “trusteeship.” The U.S. government, as was understood by the federal courts beginning in the nineteenth century, agreed to assume a “trust responsibility,” a fijiduciary duty to protect Indian lands and resources as a trustee in exchange for the large areas of Indian land that had been opened up for homesteading by white settlers by means of the treaties. Indian property rights in these trust resources were defijined and constrained by this trust status.3

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Settlement of the Cobell v. Salazar Class-Action Lawsuit The federal trust status meant that Indian lands could not be sold or legally encumbered unless approved in an act of Congress. That is, they could not be used as collateral for a debt, such as a bank loan, without the approval of the federal trustee. Such Indian lands were held by the federal government in the name of a tribe, while tribes possessed a collective or communal right of “benefijicial ownership.” An exception to this arrangement occurred when tribal lands were allotted to individual members of the tribes under the General Allotment Act of 1887, also known as the Dawes Act. This law provided that individual tribal members could apply for a trust allotment, usually 160 square acres that could be set aside from reservation lands or commonly held tribal lands. These allotted lands could not be sold by individual Indian allotment holders to private parties for up to twenty-fijive years following their allotment. Authority to take Indian land out of trust status was the responsibility of the Bureau of Indian Afffairs. Without the approval of a federal bia agent, any attempt to sell such land was legally invalid. We know that historically, between 1887, when the Dawes Act was passed, and 1934, when passage of the Indian Reorganization Act brought a halt to allotments, over 90 million acres of allotted lands had been lost to Indian ownership. They were

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passed into non-Indian ownership, often to local land speculators who were buying lands for railroad trusts and large corporate interests. In December 2009, President Obama announced a settlement to the historic Cobell v. Salazar lawsuit based on the loss of income from allotted lands. This was a massive class-action lawsuit brought on behalf of over three hundred thousand individual Indian plaintifffs who were primarily the heirs of the original Indian allotment holders. The lawsuit claimed that their allotted lands were sold by the bia under fraudulent conditions in the years after the 1887 Allotment Act was passed. The Cobell case only represented private individuals who were heirs of the original allotment holders. The legal claims were not only for fraud in the administration of allotments, but for malfeasance on the part of U.S. government agents that led to outright theft and fraud in the management of the trust assets, and the lack of a proper accounting for income from oil and gas leases, commercial timber sales, and agricultural leases, as well as for losses from mineral reserves offf allotments held in federal trust status. The suit was settled for approximately $4 billion in 2009 following sixteen years of litigation. The fijinal settlement was by act of Congress, due to the active support of the Obama administration, in December of 2011. As a consequence of the Cobell case, the Native American Rights Fund now represents a large number of tribes in sixteen diffferent lawsuits pending in the federal courts across the United States claiming that the federal government has been derelict in their fijiduciary responsibilities. These are cases alleging that the bia’s mismanagement of “tribal” trust lands (versus individual allotment holders) have resulted in very substantial injury to their tribal clients. The Native American Rights Fund originally represented Eloise Cobell in her class-action lawsuit, but due to the complexity of handling this case and potential conflicts that could result from taking cases on behalf of tribes, narf made arrangements to hand Cobell’s case offf to a team of private attorneys. The lead attorney in the case, Keith Harper, who worked for narf, resigned his position in order to associate with the private fijirm. This was done in order for narf to take on the role of representing tribal clients who had experienced the same abuse and mismanagement of the bia regarding their tribal lands and resources. As part of the shield of federal protections that go with the trust status of Indian lands, the lands cannot be taxed by state governments or surrounding local governments. Indian lands cannot be subjected to local government zoning regulations. These local government land-management functions continue to be the responsibilities of the Bureau of Indian Afffairs today unless the tribe in question

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has taken over such authority pursuant to a government-to-government “compact agreement” with the Bureau of Indian Afffairs. Such compact agreements, which normally contain a waiver clause relieving the bia of legal liabilities once the tribe is in charge of all land-management duties, were only authorized in 1990 under the Tribal Self-Governance compacting act.

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Implementing the Indian Self-Determination Act: Lessons Learned In 1975, when PL 93-638 was enacted, the 259 federal Indian reservations in the United States were under the control of the bia agency superintendent. These superintendents were career bia employees who, along with their subordinates, acted as local governors, with their stafff in charge of the police and the tribal courts. The bia superintendent’s authority was subordinate to the director of the area offfijice. At that time, the bia operated twelve area offfijices, each of which operated under an area director. Each of the area directors reported to the commissioner of Indian Afffairs in the Department of the Interior. I explain to my students in our mpa in Tribal Government program at Evergreen State College that when I was a young man working on the Rocky Boy Indian Reservation in the early 1960s, I could see that the bia agents assumed a supervisory role that was unchallenged by tribal offfijicials. It was clear that the bia agents were the ones in charge, and the tribal government offfijicials had to have their permission to manage their tribal farm and the small sawmill on the reservation. The 259 tribal communities, functioning under the authority of the bia, had the opportunity, after enactment of the 1934 Indian Reorganization Act, to authorize local tribal offfijicials to establish local tribal governing bodies once they voted to adopt an ira tribal constitution. These so-called ira tribal councils acted in an advisory role to the bia superintendent and his stafff. This colonial structure of governance for these 259 tribal communities remained fundamentally unchanged until 1975. Then the whole structure of bia duties and activities carried out on each reservation was made available to the tribal governments to take over on a contractual basis as authorized by the Indian Self-Determination Act. When this law was enacted in 1975, I was working in Albuquerque as stafff attorney to the Indian Law Center at the University of New Mexico, School of Law. My boss was the center’s director, Sam Deloria. I recall traveling with Sam to Washington, DC, in 1976, one year after the new law was passed, to meet with the

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assistant commissioner of Indian Afffairs, Mr. LaFollette Butler. We came to town to discuss the regulations he was responsible for writing to implement the new law. Mr. Butler showed us the draft that he and his stafff had been writing. After meeting with bia stafff for several days, it became clear that we had hit a “wall of resistance” to any of our recommendations to change the draft regulations. Sam and I had focused on key sections of the regulations that we thought they should change in order to signifijicantly limit the scope of activities that could still be carried out by the bia. We sought to enlarge the scope of authorities that tribes would be able to “contract for.” While LaFollette and his stafff agreed to minor changes, they were very intent on keeping under their direct control all management-level functions. In their view, only ministerial duties such as stafffijing the local bia offfijices with secretarial and administrative stafff were eligible to be contracted out to tribes. Sam and I reported back on our fijindings to local tribal political leaders in New Mexico, as well as to leaders in the National Congress of American Indians based in Washington, DC. These leaders made their objections known to their friends in various congressional offfijices as they sought clarifijication and support for their objections to how the new 638 regulations were being drafted. The congressional offfijicials then contacted Mr. Butler for meetings and subsequently held oversight hearings on how the bia was planning to implement the new law. Sam and I followed up on our recommendations and continued to advise tribal political leaders on the need for an organized efffort to overcome the resistance within the bia to handing over substantive authorities that they viewed as part of their responsibilities, their “turf.” These bia offfijicials were “unwilling participants” in Self-Determination Act contract negotiations that were intended to lead to a transfer of funds needed to carry out the law as intended and, ultimately, to the loss of their bia jobs. While I was engaged in this work with Sam, I was also serving as a member of the Tribal Government Task Force of the American Indian Policy Review Commission, and Sam was serving on the Federal Administration Task Force. At the conclusion of the aiprc study, I was appointed by Senator Abourezk, who had become chairman of the new Temporary Select Committee on Indian Afffairs, to serve as chief counsel to the Select Committee. Shortly thereafter, my wife Sharon and I moved our family to Washington, DC, from our home in Albuquerque. I persuaded my boss, Chairman James Abourezk, to use his authority to attempt to induce cooperation from the bia and revise their regulations. Unfortunately, before we could fijinish with the bia, Jim decided not to run for a second term as senator. He believed that the voters of

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South Dakota would not support him if he were to run for reelection to the Senate upon expiration of his term in 1978. There was much “backsliding” by offfijicials in the bia regarding how they interpreted their authority over Self-Determination Act contracting. This bia resistance went on until the late 1980s, when the Tribal Self-Governance Coalition was formed and played a lead role in proposing that authority should be placed in the hands of those tribes who wished to follow them in self-governance compacting. As I began writing this book, I decided that I should tell the story of how much I was struck by the promise of today’s generation of Indian leaders. In my travels to other regions of Indian Country over the past twenty years, I have seen that a great many young Native men and women have moved into positions of leadership within their tribal communities. It has become my goal in writing this book to help these new leaders become as prepared as possible for the important work they are undertaking. My generation grew to maturity in the 1960s and 1970s, influenced by our Vietnam War experiences as well as the era in this nation’s history characterized by the U.S. government’s attempts at termination of our collective rights to exist on our own lands as self-governing Indigenous Nations. Some of us had opportunities to provide leadership during the critical period following the enactment of the Indian Self-Determination Act in 1975. Under Senator Inouye’s leadership, we worked together to transform this law into the tribal self-governance policy paradigm. Many tribes who now live where there are market opportunities for recreational gaming enterprises also took the steps needed to create their own tribal economies from the opportunities made possible by the 1988 Indian Gaming Regulatory Act. For the fijirst time in the history of this country, we saw many tribes gain signifijicant economic advantages from the Indian Gaming Regulatory Act. By pursuing their opportunity to develop tribal casino enterprises across Indian Country, they have now created a much bigger venue of opportunity for themselves. They have expanded upon what had been a business of high-stakes bingo games into casino-style gambling. Once they found that they could lay an economic foundation with a successful casino enterprise, they realized that they could create the same kind of entertainment venues that draw hundreds of thousands of customers to Las Vegas and Reno, Nevada. Indian bingo games became, almost overnight, Indian tribal casino enterprises. In my work with Senator Inouye, I found that often compromises were politically necessary to get laws such as the 1988 Indian Gaming Regulatory Act through Congress. These compromises we wrote into the law mainly involved creating a

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regulatory scheme based on gaming compact agreements with the state government offfijicials. Tribes had to agree with the National Indian Gaming Commission that was created by the igra law that 100 percent of the ownership rights had to remain in the tribe in order to foreclose the possibility that organized crime interests would gain a foothold in tribal casino enterprises. In retrospect, we can see that such compromises were well worth the political risks, as the 280-plus tribal casinos have generated collective earnings in 2011 of approximately $27 billion. Indian gaming grew at a rapid pace following enactment of the 1988 Indian Gaming Regulatory Act because many tribes had already experienced success at high-stakes bingo. Studies commissioned by their own organization, the National Indian Gaming Association, have shown that tribal casino enterprises grew to encompass vacation resort complexes, adjacent gas stations, rv parks, boating, golf courses, and shopping malls, to name but a few of the additional tribal industries made possible by gaming revenues and the effforts of young Native leaders. For the most part, the compact agreements have efffectively worked to address regulatory needs, and many tribes have created their own tribal gaming commission to serve as a regulatory branch of their tribal government that interfaces with state gambling commissions. My own experience serving as a state gaming commissioner, appointed by our governor in Washington State, gave me the opportunity to witness fijirsthand the skill that tribes have shown negotiating with the state. In my more recent work with tribal graduate students at Evergreen State College, we regularly examine the relationships between the role of the tribal government and the economy that exists within the boundary of their Indian reservation territory. Economists often refer to a nation’s economy as the sum total of goods and services created and produced by private and public-sector enterprises within a nation-state’s boundaries. My students ask, “What are the unique roles that a tribe takes on to create business enterprises?” They understand that in addition to casino gambling enterprises, tribes today create and operate service enterprises and natural resource management and development enterprises. They also “regulate” such economic activities by enacting new tribal laws, such as their own version of a Uniform Commercial Code, and create oversight and management units within their tribal governments for these enterprises. We take note of the fact that these tribal enterprises are owned, in common, by the tribe and its citizens. While individual private ownership is possible in Indian Country, it is distinctive that tribal lands and related natural resources, such as timber, fijisheries, and minerals under the surface of the lands, are owned collectively in the name of the tribe. These

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resources are protected under federal laws of trusteeship against being taxed and burdened by regulations of surrounding state and local governments. We also take note that the federal courts have confijirmed that the federal trusteeship doctrine includes a responsibility that the trustee has to protect against attempts by the state and local governments to interfere with the exercise of the rights of tribal sovereignty. While it is possible to take tribal lands and the natural-resource base that goes with the land out of trust status, there is, understandably, a strong aversion by tribal leadership to do so. Today’s tribal leadership is aware of the historical legacy of termination. In many cases, the tribes that were terminated have been able to restore their lands that were lost after being terminated through a Tribal Restoration Act, a special law passed by the U.S. Congress. It often takes a huge, expensive efffort to get such a restoration act passed in Congress, but those tribes that have succeeded, such as the Siletz on the Oregon Coast, have been able to build a “tribal economy” upon a solid legal, political, and economic foundation. The Siletz Tribal Restoration Act was enacted by Congress in 1977, shortly after the Select Committee was created and I began serving as chief counsel. I recently heard from one of their current tribal offfijicials, offfering me his personal thanks for my help that I extended to his tribe when they most needed it with their tribal restoration effforts. In addition to the unique and distinctive quality of Indian lands and natural resources being held in federal trusteeship, we see that economic development and the use of tribal lands is conducted under the protective cloak of common tribal ownership. These features of the Indian Country economy deserve serious study if one is going to be able to truly understand all their ramifijications. I am sure that this is one of the main reasons why President Joe Delacruz asked us to create the mpa in Tribal Governance education program at Evergreen State College. When we undertake such a study of the role of tribes in relation to the tribal economy, we emphasize the advantages as well as disadvantages. When we do such an analysis in the context of the tribal gaming phenomenon, it is clear that there is great advantage to the protective features of federal trusteeship and common tribal ownership. Nevertheless, the analysis of the advantages and disadvantages of tribal economies is still a work in progress. Tribes are still exploring other ways that they can use federal trusteeship and common tribal ownership to their advantage. For example, in 1988 while Senator Inouye was chairman of the Senate Indian Afffairs Committee and former Washington governor and U.S. senator Dan Evans served as vice-chairman, the committee worked with the Puyallup Tribe to gain

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a legislative settlement of their legal claims to the tidal basin where the Puyallup River flows into the Puget Sound at Commencement Bay. These lands are next to the Port of Tacoma. In the years since the settlement was passed by Congress, the tribe undertook studies before creating a new tribal enterprise, Marine View Ventures, located in Tacoma, Washington. The purpose of creating this enterprise is to lead the way to building the Puyallup Tribal Port. This initiative will take place following the conclusion of an agreement being negotiated between the Port of Tacoma and the Puyallup Tribe. This initiative could not have been undertaken without the success of the Puyallup Emerald Queen Casino Enterprises. The income stream from Emerald Queen serves to create signifijicant fijinancial leverage if the Puyallup tribal Nation decides to develop the Port of Puyallup into an international port. They could become the fijirst U.S. tribal Nation to enter into international trading relationships with Indigenous Nations of the Pacifijic Rim.

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Creating the United League of Indigenous Nations During deliberations of the Executive Committee of the National Congress of American Indians at their 2004 annual midyear meeting, which took place that year in Fort Lauderdale, Florida, I was invited to take part in a discussion of the potential for creating an offfijicial relationship with other Indigenous Nations. Some of my friends on the committee were aware that I had recently traveled to New Zealand and had been engaged in researching the history and current conditions of the Maori people. I reported that I had been especially looking at the progress they have been making toward asserting rights of self-governance that would be comparable to effforts of U.S. tribal Nations. I briefed the committee on the history of Maori effforts to hold the government of New Zealand accountable to commitments made under the Treaty of Waitangi that had been negotiated by the British Crown with the Maori tribes in 1840. In the late 1970s, the Maori had been successful in pushing the government of New Zealand to create a tribunal on the Treaty of Waitangi claims asserted by diffferent tribes or Iwi. There are seventy-eight tribes that are recognized by the government of New Zealand, and their leaders had followed closely the progress that U.S. tribes had been making in gaining public support and support within the U.S. Congress to recognize their rights of self-governance. As I briefed the ncai Executive Committee, they gave me recognition for the role that I had played in assisting Senator Inouye to develop the Tribal Self-Governance Act in response

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to the initiative of a group of U.S. tribal leaders. Quinault leader Joe Delacruz was most prominent in their minds, as he had served as president of the ncai in the 1980s, and Joe was also a leader who was well known for his interest in creating alliances with other Indigenous Nations across the Pacifijic Rim. Consequently, when I fijinished my briefijing, the Executive Committee asked if I would be willing to serve as a cochair if they were to establish a special committee on Indigenous Nation relationships. I agreed that this would be an assignment that I would be happy to accept as I had concluded that the time was right for reaching out to the leadership of other Indigenous Nations. I told them that the ncai was an organization that would be well known and respected among the other Indigenous peoples across the world, and especially across the Pacifijic Rim. Following this discussion with the Executive Committee, I was contacted the next day by Ms. Juana Majel, who was a member of the Executive Committee and served in the legislature of the Pauma Indian Nation, which is based in Southern California. Juana told me that she shared my interest in the topic of building relationships with other Indigenous Nations and had requested that she be appointed to serve as a cochair of the newly established Special Committee on Indigenous Nation Relationships. I thanked her for her support and explained that I planned to meet with my good friend Professor Graham Smith, a well-known leader among the Maori people who was also attending the Fort Lauderdale meeting of the ncai. Juana was pleased to accept my invitation, and the two of us called Graham in his hotel room, which was located next to the convention center. When the three of us met, Graham was excited to hear our news, and we discussed the schedule of events that he knew were taking place later in 2005 in New Zealand. We were considering a time and place that would serve as an opportunity to meet with a delegation of Maori leaders to discuss the interest of the ncai leaders in reaching out to the Maori. Graham told us of a meeting of the World Indigenous Peoples Conference on Education. WIPCE was scheduled for early December 2005 in the town of Hamilton, New Zealand. The University of Waikato was the host university for this conference. I told Graham and Juana that I would plan to attend the wipce event and invite several of my tribal graduate students who were attending Evergreen State College to accompany me. When it came time to attend the wipce event, I was joined by my wife Sharon and fijive of the students who were enrolled in the mpa in Tribal Government class at Evergreen State College. Following the wipce conference, I met up with the students who had flown into Auckland the day before, and we all drove from

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Hamilton to the town of Whakatane, located on the east coast of the North Island of New Zealand. Whakatane is also the location for the Maori University that Graham Smith serves as a member of the council of trustees. The school is called Te Whare Wananga o Awanuiarangi, a Maori name that is loosely translated as The House of Higher Learning at Awanuiarangi. When we all arrived at the Maori school, Graham was joined by four members of the council of trustees, who took part in a day-long meeting with us to discuss the interest of the ncai in creating offfijicial relations with the Maori tribes. We were told of the work that had been done several years before this in the town of Whakatane by one of their leaders, Aroha Mead. Aroha was the daughter of the founder of the Maori University, where our meeting was taking place, and she had served as the organizer of an International Conference of Indigenous Leaders who developed the Mataatua Declaration. The declaration asserted the rights of Indigenous people to be free of exploitation from global commercial fijirms who were known to use intellectual property rights, such as copyright laws and trademark laws, to steal and make ownership claims for Indigenous cultural properties under the auspices of intellectual property laws such as copyright, trademark, and patent laws. Prior to this meeting in Whakatane, I had become aware of the Mataatua Declaration and acknowledged that this declaration had set a standard for such claims by Indigenous peoples. For their part, the Maori acknowledged the important work that the U.S. tribal people had done to successfully assert treaty rights under U.S. law—rights to ancestral lands and natural resources as well as recognition by the United States of “Inherent Rights of Tribal Sovereignty.” Our group concluded that the approach that should be made to our respective organizations is that we should develop a treaty agreement of Indigenous Nations and call upon each other for a mutual alliance on issues such as the recognition of rights to self-determination and inherent Indigenous sovereignty, as well as protection of our cultural properties against exploitation by corporations using internationally recognized intellectual property laws. Subsequent to our meeting with the Maori in December of 2005, Juana Majel and I agreed that we would approach the national organization of Canadian First Nations, which we regarded as the counterpart to the ncai, the Assembly of First Nations. When I returned home to Olympia, I contacted the offfijices of the Assembly of First Nations, which is based in Ottawa, the national capital of Canada. I was informed that the Assembly would be holding its spring meeting in Vancouver, British Columbia. Since Vancouver is a relatively short drive north of Olympia, I told Juana that I would plan to attend this meeting and ask for an opportunity to inform

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them of the work that the Special Committee on Indigenous Nation Relationships of the National Congress of American Indians was now engaged in pursuant to our 2005 charge received at the midyear meeting in Fort Lauderdale, Florida. The Assembly of First Nations meeting took place in May of 2006, and I was able to secure lodging in the hotel that hosted their meeting and to be available to meet with their governing board once the session commenced. When I informed them of the work of the ncai Special Committee and our meeting with the Maori leaders in Whakatane, New Zealand, the previous December, they were very interested in hearing of our project. They invited me to address their general assembly of tribal chiefs the next morning and provide a report to them of our work. I made my report to an assembly of six hundred–plus tribal chiefs, who paid close attention to my report. After answering a few questions that were posed by tribal chiefs who served as offfijicial delegates, I was thanked for my presentation and invited to meet later with the governing board. Once the meeting was adjourned for the day, members of the governing board assembled in a small meeting room at the hotel and I was called to come and have further discussions with them. They were particularly interested in our ideas about writing a Treaty of Indigenous Nations document and told me that they would be happy to send representatives to future meetings where discussions could be held about the terms for such a treaty. They expressed their interest in the views of ncai leaders regarding the work of the Working Group of Indigenous Peoples who had been meeting over the past twenty years with representatives of the United Nations. The Assembly of First Nations, I was informed, regularly sent their delegates to the sessions of the working group. I explained to them that I had not been following these meetings, although I was generally aware of the existence of the working group. Their delegates had been informing them that the working group had developed a Draft Declaration on the Rights of Indigenous Peoples that was being considered for introduction before the General Assembly of the United Nations, and that it would be referred to the Committee on Civil and Human Rights before it would be taken up by the General Assembly. In the fall of 2006, I attended the annual meeting of the ncai and was asked by the stafff if I had a report to give the executive committee on the work of the Special Committee. I was happy to agree to this request and had a lively meeting with the members of the executive committee. During this meeting, they asked if I would be calling upon diffferent “experts” to assist me and my cochair, Juana, in developing a draft Treaty of Indigenous Nations. I explained that I had been in communication with friends and colleagues for whom I had a high regard

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and would be asking for their help. I also asked if any members of the executive committee had recommendations to make for individuals that possessed expertise not only in the law of tribal rights but also in the law of Indigenous Nations under international law that I could call upon. Following the conclusion of the ncai annual meeting, I did assemble a group of fijive who had responded to my requests for help, and we convened a series of meetings in early 2007. Finally, early in the summer of 2007 we agreed to convene a meeting to develop fijinal terms of our proposed treaty agreement. As one member of our group was the esteemed Jewel James from the Lummi Indian Nation, whose lands are located near to the city of Bellingham, Washington, I asked Jewel if the Lummi Indian Nation would be willing to serve as the host to our fijinal meeting. He quickly agreed, and we set the dates for this inaugural meeting of Indigenous Nation leaders, August 1–3, 2007. I informed our friends among the Maori and was delighted to hear back from Aroha Mead that her tribe, the Ngati Awa people, had appointed her on behalf of the Mataatua Assembly of sixteen tribal Nations or Iwi. Jaret Cardinal, who was serving as chief of the Sucker Creek First Nation, informed me that he would be joining us, accompanied by his brother Raymond. I knew that Raymond had been a student of the esteemed Vine Deloria Jr. while he served on the faculty at the University of Arizona. During one of my trips to New Zealand, I had also had the opportunity to visit the Nerringjeri people of South Australia and became acquainted with Daryle Rigney, who served on the faculty at Flinders University in the City of Adelaide, South Australia. Daryle was a former student of Graham Smith, and he quickly replied to my invitation that he would be joining us on the lands of the Lummi. The stage was now set for the meeting of Indigenous leaders convened by invitation of the National Congress of American Indians. After two days of intense discussion among these leaders, agreement was reached on the terms of a proposed Treaty of Indigenous Nations. A proposal was made by delegates from all sides that we should call the treaty the United League of Indigenous Nations Treaty. The major provisions of the treaty addressed the following key issues: 1.

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Representation of the interests of Indigenous peoples before international groups and governmental bodies that were addressing the impacts of global warming, and climate changes resulting from global warming. Protection of Indigenous peoples’ cultural property interests against the exploitative effforts of global commercial fijirms who would attempt to claim

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ownership of these properties under the international regime of intellectual property rights (e.g., copyright laws, trademark laws, and patent rights law). Development of commerce and trade relations among the signatory Nations of the United League of Indigenous Nations (ulin). Border-crossing rights of Indigenous people who have traditionally exercised such border crossings since time immemorial. Develop an efffective and meaningful process for communication and exchange of vital information among the treaty signatories.

The United League participants also agreed that Indigenous Nations could join the league in the future by producing evidence that the Indigenous Nation they were representing did, formally and offfijicially, delegate to them the authority to sign the treaty on their behalf and attend any future meetings called for the purpose of such treaty negotiations and signings. I was asked by the delegates who were assembled to serve as secretary to the United League until such time as I might be replaced by the governing board of the United League. The representative of the Odawa Nations of Michigan, Frank Ettawageshik, was appointed to serve as chair of the governing board, and under his leadership, the membership of the United League has grown from the initial group of eleven Indigenous Nations to ninety-four Indigenous Nations who are offfijicially signatories to the United League Treaty agreement.4 International economic alliances can now be explored with the Maori, who hosted an international Indigenous Nations Trade Conference in September 2011 in the town of Rotorua, New Zealand. In addition, the Maori leaders sent their own tribal delegations to meet with U.S. tribal Nations at a recent 2011 ncai meeting in Portland, Oregon. Leadership of the First Nations from Canada, the Sami Parliaments (Indigenous self-governing bodies) based in Norway and Sweden, and the Australian Aborigine Nations were also present at the meeting in Portland. Maori leader Mark Solomon, who is a vice-president of the Native-owned company Sealord, based in Christchurch, New Zealand, spoke eloquently to the assembled ncai tribal delegates. He pointed out that We are in the same boat, the same canoe as you are, in relation to our National Governments. Since I have been here with you in Portland I have learned that your government, the United States, has been planning to largely withdraw from its historic responsibilities as a Trustee of your lands and natural resources as

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they have celebrated their success at settling the 4 billion dollar “Cobell” lawsuit. I understand that this lawsuit over their mismanagement of Indian Trust monies collected from the rentals of these lands over the past hundred years has gone on for nearly 16 years. In our country, New Zealand, our government has been steadily moving to settle legal claims of the Maori that have been taken under the 1840 Treaty of Waitangi. As they take these steps with us, we have seen that both of our governments have been much more willing to turn over to us the responsibilities of managing these “Trust” lands and natural resources. I think that you can see along with us that they simply want to walk away from these responsibilities. My challenge to you is to consider what new opportunities does this new policy on their part create for both of us if we were to join together and form a new alliance?

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I had the opportunity at this ncai meeting to take to the microphone on the floor of the assembly hall and respond to Mr. Solomon and offfer my thanks for his remarks to the ncai tribal delegates. I pointed out that As we go forward with our national governments and begin negotiating the new terms under which they take these steps back from their historic roles as a trustee to reduce their controls over our lands and natural resources, we should make plans to visit the Maori in New Zealand and explore with them what opportunities might exist to enter into trade relations with them. Perhaps their company, SeaLord, might be able to offfer to us seafood products that we could then offfer to our American markets through mutually profijitable, duty free trade agreements with them. In like manner, we could explore trade possibilities with 1st Nation leaders in Canada and Sami leaders in Norway and Sweden. Through the Sami, perhaps we could fijind attractive markets within the European Common Market for Native American tribal products that are produced on U.S. tribal lands or represent products that come from U.S. tribal lands.

I am convinced that these kinds of international contacts with other Indigenous leaders of the Pacifijic Rim should lead the members of the United League of Indigenous Nations to ask: ■

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ownership in the name of our tribe, how does this form of ownership allow us to enter into trade agreements based on our shared values? In the United States, our tribal lands and natural resources are held in “trust” by the federal government, and this means that they cannot be mortgaged or sold without the approval of our federal trustees, nor can they be burdened with taxes by other governments. How does this give us advantages in the marketplace? Do other governments in the Pacifijic Rim, Canada, New Zealand, and Australia have similar laws that govern the lands and contractual dealings that involve the lands and resources of their Indigenous Nations? Do these “trust protections” translate into advantages for international trade, and in the international marketplace for trade agreements by our tribal Nations in their “Indigenous trade products”? What should be our goals if we try to create a “Paradigm for International Indigenous Nations Trade and Economic Alliances”? Can we build upon traditions of mutual respect and trusting relationships among our Indigenous Nation relatives? What other political relationships might become part of this paradigm?

As secretary to the United League of Indigenous Nations, a position I have been holding at the request of the founding members since the United League was established in 2007, I look forward to working with the members of the United League governing board and our chairman, the Honorable Frank Ettawageshik of the Odawa people of Michigan. Together we will be joining with the leaders of the ninety-four Indigenous Nations who have signed our treaty and joined the United League of Indigenous Nations to discuss these issues and opportunities. Chairman Ettawageshik has been invited to address the ncai tribal Nation delegates on behalf of the United League when they assemble at their annual meetings in the future. Other representatives of Indigenous Nations from Canada, New Zealand, and Australia who have signed the ulin Treaty will also be invited to join us at future ncai meetings.

The Inter-Tribal Trade Development Act I recently had the opportunity to draft federal legislation that, if introduced by some of our friends and enacted by Congress, would establish a Tribal Trade Corporation.

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If we were to succeed in having this legislation adopted by Congress, it would create a new federal corporation empowered to issue voting stock to every U.S. tribal Nation who wishes to partake in the work of the corporation as a shareholder. According to the terms of this draft legislation, once 10 percent of this stock has been purchased by the tribes, these tribal shareholders would be authorized to convene a shareholders’ meeting and elect their own governing board for the Tribal Trade Corporation. The corporation would then be empowered to assist the tribal shareholders to develop tribal trade products that represent their tribal traditions and their tribal identity. This would be much like the U.S. tribal Nations who have created their tribal casino enterprises to represent, in the design and furnishings of the casino, their tribal cultural identity and history. The Tribal Trade Corporation could provide many opportunities for its shareholders to open up new markets for their own unique tribal trade products. The legislation would also authorize the tribal governing board of shareholders to invite other Indigenous Nations of the Pacifijic Rim and elsewhere to participate as shareholders with the same rights, privileges, and shareholder benefijits as long as they share a status under the laws of their country of origin that is “comparable” to the status of U.S. tribal Nations. This legislative proposal for a Tribal Trade Corporation could also be accomplished by a group of like-minded tribal Nations who joined together to create a business corporation that is chartered under the authority of Section 17 of the Indian Reorganization Act (25 usca 477). Section 17 of the ira authorizes Indian tribes who adopt a tribal constitution under Section 16 of the ira to create a tribal business by fijiling their corporate charter and seeking approval of the bia for the charter. Once the charter is approved, the Section 17 business gains a new status as a federally chartered business, and the ira law provides a set of rights and privileges to the tribal business that have been recognized in federal court.5 In the late 1980s a group of tribes took advantage of this authority under Section 17 of the ira to form a tribal business for the purposes of providing self-insurance for their tribal housing authorities. The business name that they selected is “amerind” and their website is www.amerind.org. The amerind organization has since been joined by over two hundred Indian housing authorities located across Indian Country. If a group of tribes were to fijile for incorporation in order to create a Tribal Trade Corporation and empowered their corporation to issues shares of stock to every member as well as other Indigenous Nations across the Pacifijic Rim, they could conceivably accomplish the same thing and forego the need to have the U.S. Congress pass a special bill.

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I look forward to our mutual opportunities in the future to develop a paradigm for international Indigenous Nation relationships in the twenty-fijirst century. Former president Barack Obama showed himself to be genuinely interested in the needs and aspirations of our U.S. tribal Nations. As we consider President Donald Trump’s election to the Offfijice of the Presidency, I know that we will be considering what challenges and opportunities this might present to our tribal Nations. Will he work with us to reform the U.S. Trust Responsibility Doctrine and the federal policies that flow from this doctrine? Will he seek to open doors that will lead to investments in the national Indian Country economy by tribes who have accumulated investment capital through their casino gambling enterprises? These tribes could invest in the abundant natural resources of other tribes who are located too far from the population centers in the United States to succeed at developing a highly profijitable tribal casino. If the U.S. government were to step in and provide a form of tribal investment risk-protection insurance for investment by successful gaming tribes in these valuable natural resources that are held in federal trust status, such a federal insurance program would provide great benefijit to both the investor tribes and the tribes who are owners of such federal trust resources. Would the federal trustee be willing to work with U.S. tribal Nations to create new international trade relationships with our Indigenous relatives around the world? We know that there are opportunities to sell products and goods that are produced and manufactured in Indian Country within international markets in Europe as well as Asia and the Middle East. If such Native American trade goods could be given a trademark that the U.S. government stands behind, I believe that they would fijind willing buyers in these international markets. If the Native American tribal producers and manufacturers of such goods were to negotiate trade agreements with other Indigenous Nations, such as the Sami peoples in Norway and Sweden, who are located much closer to markets in Europe and the Middle East, I am confijident that mutually profijitable trade-partnership agreements would result, particularly if the U.S. government were to stand with the U.S. tribal Nations to provide fijinancial backing and verify the authenticity of such trade goods.

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Conclusion

A

s I have engaged in the work of writing this book and reflecting back on my years of public service, there is one achievement that my friends and I were able to accomplish while we were working on the American Indian Policy Review Commission that stands out in my mind as a truly historic step forward. That singular achievement is the creation of a new and independent Committee on Indian Afffairs in the U.S. Senate in March of 1977. As negotiated by Senator Jim Abourezk in the Senate Rules Committee, this new Committee on Indian Afffairs would exist on a par with other legislative committees, and in the future, all bills and resolutions dealing with Indian Afffairs issues that were introduced in the Senate would be referred to the Indian Afffairs Committee for disposition in the same way as bills would be to the other standing committees. Likewise, the Rules Committee saw that the Select Committee would have, along with legislative power, oversight jurisdiction over those federal agencies that were charged with carrying out the federal government’s responsibilities toward the Indian tribes and the management of their lands and natural resources. Congressional oversight is a powerful tool that members of Congress possess in order to hold the diffferent federal agencies accountable. I know that if we were to look through the archives of the Senate Indian Afffairs

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Committee, we would fijind a long list of congressional oversight hearings that put federal offfijicials under a spotlight. I can attest to the record that during the nine and a half years that I served on the committee, we were able to get results and impact policies to change the behavior of many recalcitrant federal bureaucrats through the power of oversight. The Senate Rules Committee resolution accomplishing this reorganization of Senate committee legislative jurisdiction and organizational structure was adopted by the Senate at the beginning of March 1977. Starting in April 1977, I worked for the next four and a half years as the chief counsel to the Temporary Select Committee on Indian Afffairs, and we began our work by developing the ideas and provisions that would be going into the Indian Child Welfare Act legislation. We were also asked to respond to an urgent need to insert some new authorization language into existing legislation. The Senate would soon be voting on a bill to address the government’s role in higher education. Our job was to provide language giving permanent authorization for the tribal colleges. There were only a handful of tribal colleges at that time, but we knew that legislation was needed to ensure that fijinancial support would be possible through the Bureau of Indian Afffairs, Offfijice of Indian Education. In a similar manner, we were asked by representatives of the Indian tribal housing authorities to provide authority to qualify them for federal dollars within a more general public-housing law that was then being considered in the Committee on Housing and Urban Development. These requests for action that came to us soon after we opened our doors demonstrated why the Select Committee needed to have broad legislative authority—authority that went far beyond the authority that was normally exercised by the former Subcommittee on Indian Afffairs within the Committee on Interior and Insular Afffairs. Our new committee began our work immediately on the Indian Child Welfare Act (icwa), and this law was adopted by Congress in 1978. In the years since icwa became law, thousands of Indian children have been rescued from being placed by state agencies into non-Indian foster homes or with non-Indian adoptive parents due to the legal authority of Indian tribes recognized in the icwa to intervene into child-custody proceedings in state courts and assert the rights of parental guardians on behalf of the child’s own Indian parents. This authority to intervene was the key to making the law work. Before this law, there was no efffective means to overcome generations of bias on the part of social workers who, in most cases, sincerely thought that they were simply doing what was in the best interests of the Indian child. Over the past thirty years, I have personally heard from many individuals

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who were lost to their tribal families and communities due to the lack of such an intervention when they were taken into the system that state agencies established for child-custody proceedings in the years before icwa was enacted into law. The National Indian Child Welfare Association (nicwa) was created by American Indian social workers after the icwa became law to work on behalf of such “lost children” and their tribal families. NICWA has become a powerful organization, able to educate the public as well as provide much needed support for Indian children and their tribal families. The American Indian Religious Freedom Act (airfa) has also become a very important and efffective remedy for practitioners of tribal customary religions. At the time that we took this bill up and conducted hearings, our primary focus was on protecting the Native American Church (nac) participants. We knew that the drug enforcement agencies were simply unaware of the nac’s existence as the agencies sought out and arrested the suppliers of the peyote buttons that were being used as a psychedelic drug on many college campuses. The Native American Church had been using peyote as a sacrament in their ceremonies for two hundred years, but their members and suppliers of peyote were being arrested by the drug enforcement agents as they transported the peyote buttons from producers who were primarily located in Mexico. The airfa established federal policy that would be read by federal agencies as recognizing their religious practices and beliefs as a right protected under the First Amendment of the U.S. Constitution, and that they deserved protection on the same basis as established Christian churches. We have not yet been able to secure protections for Native American sacred places, which are constantly in danger of destruction by users of public lands such as the oil and gas industry, hard-rock mining companies, timber companies, and the non-Indian public who are recreational users of scenic places in the National Forests and Wilderness areas. Protecting sacred sites is on our list of unfijinished business. Recent conflicts in South Dakota over the construction of the Dakota Access Pipeline and months of protest by members of the Standing Rock Sioux Tribe Water Protectors have illustrated, once again, that there needs to be a federal law that protects Native American sacred sites. Back in 1978 when we attempted to pass the American Indian Religious Freedom Act, we encountered strong opposition from the oil and gas industry along with other corporate interests who had heard of our airfa legislation. They had read of the language in our proposed law that provided that there would be federal court jurisdiction for any lawsuits that were fijiled to ask for a federal court injunction against the effforts of any federal agency

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that considered approving such industrial development, if it could be proven that this would injure their “Sacred Sites or lands around such sites.” When we briefed our Committee on Indian Afffairs chairmen on both the House and Senate sides of this opposition that were being marshaled to stop congressional passage of our legislation, they concluded that the opponents of our bill would be able to stop it from coming up for a vote. As a result, we deleted the language that conferred such a “right to sue” to protect Native American sacred sites in order to make it possible to have the bill proceed with other provisions that were urgently needed. As the Standing Rock controversy has shown once again in 2016, sacred sites and lands remain totally unprotected. The rights to “free, prior and informed consent” before Indian lands and associated natural resources are taken by federal authorities in the process of settling claims over ownership are essential. We were able to establish a precedent in our work on the Ak-Chin Pima Maricopa Indian tribal water-rights “settlement” legislation. Our committee hearings recorded that the tribe had freely consented to the settlement of their claims that they possessed a “Winters Right” within the water basin of Central Arizona. Their rights to a sufffijicient supply of water to allow them to continue using their lands to raise traditional crops was clearly recognized in the 1906 Winters v. United States Supreme Court decision and are referred to as Winters Rights. We also were able to satisfactorily address the land claims of the two tribes in the State of Maine, the Passamaquoddy and Penobscot, whose claims to ancestral territory amounted to two-thirds of the state, in the same 96th Session of Congress. These two settlement-legislation laws upheld the rights of the tribes that the federal government could not proceed to partially “extinguish their land and water rights” until the legislative record showed “free, prior and informed consent,” a set of principles that were later recognized and enshrined in the United Nation’s 2007 Declaration on the Rights of Indigenous Peoples. I am confijident that these principles of law and policy that we established together with the support of our committee members and the leaders of the tribes who were involved will be regarded as transformative by historians and students of the law. When I was invited to rejoin the stafff of the Indian Afffairs Committee by Senator Inouye in 1987, ten years after the Temporary Select Committee was fijirst created, we were almost immediately confronted with a proposal by the Tribal Self-Governance Coalition. The coalition was formed by Joe Delacruz and nine other tribal leaders who had come together after they realized that they shared a commitment that the rights of tribes to implement the Indian Self-Determination

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Act were being frustrated by the leadership within the Bureau of Indian Afffairs. In their work together, these far-sighted tribal leaders saw that the key point was how the bia was interpreting the “rights to contract” in the 1975 isda law. The bia interpreted the law as establishing a system that was based on a “procurement contracting” model that defijined their role as “buying/procuring the services of tribal organizations” to carry on the local government functions as they, the bia, had been doing for many years before the 1975 law was enacted by Congress. The coalition persuaded the new chairman of the Indian Afffairs Committee, Senator Inouye, and his vice-chairman, Senator Evans, that the bia procurement contracting model left the bia in control of the functions of local government on each Indian reservation. The Indian Self-Determination Act, they explained, was intended to change this model and put the tribes in control of local government functions within their own lands to take responsibility for the welfare of their own people. The two senators saw the point they were making and agreed with the tribal leaders of the coalition. The coalition proposed that a demonstration project be established and authorized in the Interior Department’s funding bill for 1988 to “work out the kinks” in their proposed changes. This fundamental and transformative change in the relationship between Indian tribal governments and the Bureau of Indian Afffairs was made permanent law in the 1990 Tribal Self-Governance Act. The Tribal Self-Governance Coalition was successful in persuading many tribes to join them in the years following, and today over three hundred Indian tribal Nations across Indian Country are committed participants in the tribal self-governance movement. The impact of this movement has radically changed the face of Indian Country. Congress continues to appropriate and authorize funding for the operation of local government on the Indian reservation as they instinctively support the idea of putting federal monies and the responsibility for accountability into the hands of local government rather into the hands of federal bureaucrats. The evidence of the impacts of this tribal self-governance movement is seen both in the growth and stability of tribal governments and in the reduction of the size and role of the bia. I wish the tribal self-governance leadership success in the future as they attempt to persuade Congress to authorize comparable changes in the relationships between tribes and other federal agencies such as Housing and Urban Development and Health and Human Services.

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Recommendations for Future Transformations in Indian Country I am now convinced that the time is right to build upon the changes that we have seen. The Indian Gaming Regulatory Act provided an important and powerful tool for those tribes that were located close to the market for recreational gaming. Over two hundred tribes have been able to create tribal casino enterprises that have ranged from being phenomenal successes to moderately successful. No matter where they might fall within this range, the so-called Gaming Tribes have also been able to use the tool of tribal gaming to create the elements of a local economy on their lands by diversifying beyond gaming into ancillary business activities such as hotels, resorts, and entertainment facilities. Some have been able to go beyond this and create shopping-center complexes that employ hundreds of local residents. In the Pacifijic Northwest, a few tribes have been able to establish successful seafood-product companies by putting their treaty-protected fijishing rights to work. Other tribes have created successful Native food products based on agricultural products that they produce on their lands, such as Navajo Pride corn, Chippewa wild rice, Seminole Pride beef, and dried bufffalo meat from the Lakota. I was recently asked to serve as a keynote speaker at a gathering of Indigenous scholars in Auckland, New Zealand, and chose as my topic “Can We Join Together to Create an Indigenous Nations Economy?” Some of the Maori participants in this conference were familiar with the work we had done together in 2007 to fashion a treaty agreement that called for reestablishing trade relations among Indigenous Nations of the Pacifijic Rim—the United League of Indigenous Nations Treaty. The Maori referred to their company Sealords, which markets salmon caught offf the coast of New Zealand, and suggested that perhaps there was real potential to work together to market seafood products with the Coastal Salish people under a brand label that prominently identifijied the producers as Indigenous or Natives of their own lands. Other participants, who were First Nations people from Canada and Sami people from Norway, also shared their interest in working together with the Native Americans and expressed their belief that we had much in common with each other as Indigenous people. As Indigenous scholars, they announced their intentions to engage in academic and business-related research that would be focused on the elements of joint ventures among our people. Perhaps there is real potential in the idea of creating tribal economies and an international Indigenous Nations economy. Alliances can be made with the Sami in Norway to market Native American trade goods in the European Common Market.

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A P P E N D IX 1

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A Tribute to Senator Daniel K. Inouye

F

rom the fijirst days of my work with him, I have regarded Senator Inouye as one of my heroes. He was always a personable and delightful man to work with, and he sincerely embraced the cause of protecting Indian tribal rights. After only a few weeks following his appointment as chairman of the Senate Committee on Indian Afffairs in February 1987 and I had begun my service with him on the committee, I saw that he became so enthralled with the issues that came before the committee that his personal stafff, comprised of people who were from the State of Hawaii, were amazed. They knew that he had a very important assignment on the Appropriations Committee, where he was chairman of the Subcommittee on Defense Agencies, a committee that looked after the interests of those branches of the Armed Forces who had major military bases in the Hawaiian Islands. He also was chairman of the Commerce Committee, and the late 1980s were a time when the communications industries were engaging in groundbreaking work on telecommunications. Yet, his duties as chairman of the Indian Afffairs Committee became his number one priority. The historic work that we were able to do in the 100th through 102nd Sessions of Congress (1987–1991) was only possible because the Senate Committee on Indian Afffairs had a chairman who was totally dedicated to making a diffference. He

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traveled to many diffferent Indian reservations and saw for himself the conditions of poverty that were so prevalent all across Indian Country when he began his work as chairman. Even though we did not succeed in creating the Indian Development Bank/Finance Corporation as called for by the aiprc Economic Development Task Force, a transformation of the economy in Indian Country has now taken place as a result of the Indian Gaming Regulatory Act, and this historic transformation has been due to the vision and courage of today’s generation of tribal leaders. I am convinced that the time is right to create the Development Finance Corporation now that the tribes have tasted success in the arena of Indian gaming, and they would be capable of envisioning how they can take this work to an international level. We have heard from our Indigenous brothers and sisters across the Pacifijic Rim and elsewhere in the world that they are prepared to work with us. In the age of the Internet, the Indigenous leaders of the world can see for themselves what the U.S. tribal Nations are capable of, and I am confijident that they are ready to enter into the kind of economic and political alliances that are envisioned in the United League of Indigenous Nations Treaty Agreement. It is an exciting time to be alive and to be on the way to our shared goals of working together to create a new world of Indigenous Afffairs in the twenty-fijirst century. There are so many stories that I could tell of our work with Senator Inouye over the years. My dear friend and partner in this work is Patricia Zell. Patricia once said to me, “I think we are witnessing a love afffair between Senator Inouye and the Indian people. Everywhere we go he exudes to the people how happy he is to be with them, and they are just glad to return the love that they feel in him.” On Friday, December 21, 2012, a funeral service was held for our great champion and friend Daniel Ken Inouye, who had passed away peacefully the preceding Monday. I was able to fly to Washington, DC, to attend the funeral, which took place in the National Cathedral on Wisconsin Avenue. President Obama came to deliver a wonderful and moving eulogy for the Senator. He told us that he will always think of him as his Senator because he lived in Hawaii as a youth and was always so proud to tell people, “He’s my Senator!” He was joined by President Clinton, who told the story of how moved he was to bestow the Congressional Medal of Honor on this great man in 2000. They both spoke of the tremendous respect that Senator Inouye enjoyed on Capitol Hill during his many years of service to the people of Hawaii. He inspired respect in everyone, regardless of political party or persuasion, because of the integrity that he exuded and the respectful way that he treated everyone. He not only looked after all his constituents in Hawaii, but made powerful contributions

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to our nation. Senate majority leader Harry Reid followed the two presidents, and he spoke of the Senator’s time as chairman of the Indian Afffairs Committee. He attested to the historic importance of his work on behalf of the Indian people and to the nation. I was moved most deeply when President Obama told those of us attending the funeral of the Senator’s last words as he lay in the hospital at George Washington University. He was heard to say, “Aloha, Aloha,” I love you, I love you. Aloha! Aloha to you, Senator Daniel K. Inouye; there will never be another champion for the Indigenous people of this land such as you have been.

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A P P E N D IX 2

Legislative Steps on the Path to Sovereignty

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1968 Indian Civil Rights Act (25 USC 1301 et seq.) This law was folded into the Civil Rights Act of 1968 and authored by Senator Sam Ervin of North Carolina, who at that time was chairman of the Senate Judiciary Committee. At the recommendation of one of his stafff, Dr. Helen Schierbeck, a Lumbee Indian from North Carolina, Senator Ervin conducted a series of hearings in the Judiciary Committee and compiled testimony focused on the disarray in law enforcement across Indian Country due to inadequate tribal court systems. Senator Ervin became convinced that a set of standards needed to be provided for individuals who came before Indian tribal courts that would protect their individual civil rights. This Indian Civil Rights provision was modeled after the Bill of Rights found in the U.S. Constitution, with some important revisions. The Judiciary Committee also included two other provisions in the law. The fijirst was to direct the Department of the Interior to develop a model code to replace the code that was used by the bia for Courts of Indian Offfenses, an antiquated provision dating back to the 1880s. The second provision called upon the secretary of the Interior to create within the department an “Indian Civil Rights Task Force” and commission the task force with the job of updating the Handbook of Federal Indian

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Law, authored by the storied Felix Cohen, former solicitor for the department during the Franklin D. Roosevelt administration. The testimony that formed the basis of this provision documented that the 1958 revisions to the Handbook on Federal Indian Law were a biased version reflecting the termination policies of the time. The Indian Civil Rights Task Force was created in 1970, and two career attorneys in the doi Solicitor’s Offfijice were appointed codirectors, Frances Ayer and Peter Taylor. These two codirectors subsequently hired Alan Parker and Doug Nash in 1972 to assist in the task of updating the handbook and also to develop a model code for tribal courts. This work was partially completed but put aside as Doug Nash resigned to return and work with his tribe, the Nez Perce, and Fran Ayer took an assignment with the Bureau of Indian Afffairs. Peter Taylor and Alan Parker were appointed to the stafff of the American Indian Policy Review Commission in 1975.

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1975 Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.) The ideas behind this law were framed in the 1970 Nixon message to the U.S. Congress entitled “A New Day for the Indian.” President Nixon’s historic message fulfijilled a pledge that he made during the 1968 presidential campaign to open the door for the nation’s Indian tribes to assume control of the administration of local government services that were then being conducted by the Bureau of Indian Afffairs and the Indian Health Service. The 1970 message expressly repudiated the policy of termination, which was initiated, ironically, in 1953 during the administration of President Eisenhower while Nixon was serving as his vice president. The Indian Self-Determination Act authorized and provided that tribes had a “right to contract” and to assume the role of administering bia and ihs functions performed at the agency level. The bia resisted this law and initially implemented regulations that threw up many obstacles and barriers for those tribes that sought to achieve the full intent of the law. Many tribes grew frustrated with the bia’s practice of throwing up administrative obstacles at every opportunity, and this frustration led to the formation in 1986, by ten tribes, of the Tribal Self-Governance Coalition. The coalition took a strategic approach to changing the nature of their relationships with the bia. Instead of accepting the role of a contractor, negotiating to take over on a piecemeal basis the diffferent roles of the bia, the coalition insisted that tribes

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had the right to assume the role of a separate body of government empowered to negotiate a government-to-government agreement—a compact agreement.

1978 Indian Child Welfare Act (25 USC 1901-1962)

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This law grew out of the extensive testimony presented to the American Indian Policy Review Commission that documented the abusive practices of state-government social workers who snatched Indian children from their homes on the grounds that they were unfijit due to the pervasive conditions of poverty across Indian Country. Private adoption agencies worked in collusion with the social workers to place young children in the homes of middle-class Anglo-American families, claiming that this would be “in the best interests” of the children. The aiprc compiled records of thousands of stolen children who were taken far from their Indian reservation communities and were lost to their Native families and communities. The remedy that was provided in the Indian Child Welfare Act was to recognize that the tribes from which the children were stolen had a right to intervene in the court proceedings leading to adoptions and custody awards. A standard was created for family law courts to require that they give the highest priority to awarding custody back to the child’s natural-born (extended) family in order to ensure that tribal and cultural identity are protected “in the best interests of the Child.”1

1978 American Indian Religious Freedom Act (42 USC 1996) This law was developed and drafted to implement recommendations of the American Indian Policy Review Commission and the Native American Church. Mr. Henry Old Coyote served on the stafff of Senator John Melcher of Montana when the committee was created in 1977, and requested that legislation be drafted to protect the rights of members of the Native American Church who were experiencing harassment by the Drug Enforcement Administration for using the peyote medicine/fruit of the cactus plant in their religious ceremonies. Ms. Suzan Harjo also asked on behalf of the National Congress of American Indians that legislation be drafted to protect the rights of traditional Native American medicine people. They were seeking legal protections for various sacred sites located across the West that they used in their ceremonies. With assistance from Henry Old Coyote and Suzan

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Harjo, I drafted a congressional resolution to frame these two issues in the context of the First Amendment to the U.S. Constitution Freedom of Religion clause. We were advised by the Legislative Counsel on the Senate to seek sponsorship in the House so that our proposal could be handled as a joint congressional resolution. Once passed by House and Senate, it would have the same status as a legislative proposal, whereas a simple congressional resolution would be simply a statement of the sponsor’s position on the issue it addressed. Congressman Udall agreed to introduce this resolution as a companion to Senator Abourezk’s resolution, and the joint resolution was adopted and passed by both houses of Congress and signed by the president in October of 1978. The amendment limited federal court authority to accept cases seeking relief under the AIRFA. In 1988, ten years after the AIRFA law was adopted, the U.S. Supreme Court issued its decision in the case entitled Lyng v. Northwest Indian Cemetery Protection Association (485 us 439) in which it concluded that a timber company’s right to proceed with building a road through an area on public land that it had leased from the U.S. Forest Service did not violate a right to freedom of religion provided in the First Amendment of the U.S. Constitution, even though the court recognized that allowing the construction of the G-O Road to continue would desecrate a site considered “sacred” by the plaintifffs in this case. The court specifijically referred to the American Indian Religious Freedom Act in its decision and quoted Congressman Mo Udall’s statement on the floor of the House in 1978, when the bill was being debated, that the bill “would not confer special religious rights on Indians . . . and, in fact, it ‘has no teeth in it,’ i.e. a right to sue.”

1978 Narragansett Indian Land Claim and Settlement Act (25 USC 1701 et seq.) This law is also known as the Rhode Island Indian Claims Settlement Act. The Narragansett Tribe was represented by the Native American Rights Fund in their claims for ancestral lands in the State of Rhode Island. Once their lawsuit survived attempts by the state attorney general’s offfijice to have the case dismissed, Rhode Island senator Claiborne Pell played a lead role in persuading President Carter to support a legislative settlement act that identifijied sufffijicient lands and monies to satisfy the tribal claims. The settlement act also served to provide federal recognition of the Narragansett Indian Tribe.

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1978 Ak-Chin Pima Maricopa Water Claims Settlement Act (PL 95-328) The settlement of the Ak-Chin Pima Maricopa water-rights claims can be found as PL 95-328 on the Library of Congress website. This settlement was worked out by their lawyers and the Department of Justice as the fijirst case to put to work the famous Winters Doctrine that had established that Indian water rights are a legally enforceable federal right for sufffijicient water to make their lands arable in exchange for giving up a larger claim to waters from nearby rivers. The legislation was then developed by the congressional delegation, and we were given the task of getting the bill reported out of our committee before Congress adjourned.

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1978 Tribally Controlled Community College Assistance Act (25 USC 1801 et seq.) The tribal community colleges formed an association of tribal schools of higher education in 1972, which they entitled the American Indian Higher Education Consortium. The aihec organization patterned their proposal for federal legislative authority for direct assistance to tribes seeking to create a community college after the Navajo Community College Act of 1971. It was clear that the Navajo Indian Tribe served a relatively large population of tribal members dispersed across a broad area of lands within the borders of their reservation. The Navajo Reservation encompasses sixteen million acres located in northeastern Arizona, the northwest corner of New Mexico, and southeast corners of Utah and Colorado. The Navajo Tribe established a community college located in the town of Tsaile, Arizona, and succeeded in persuading the U.S. Congress in 1971 to provide fijinancial support to expand and improve the ability of the tribe to provide education beyond the level of K‒12 public school. The six tribes represented in the aihec organization joined forces with the Navajo Tribe, whose effforts led to the Navajo Community College Act of 1971 for the purposes of assisting in the construction of facilities, and the maintenance and operation of facilities. The Tribally Controlled Community College Assistance Act followed the model created by the 1971 Navajo Community College Act, and this new authority was appended as a separate title to the Elementary and Secondary Schools Assistance Reauthorization Act in December 1978. By 2012, the

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aihec organization had succeeded in supporting the development of thirty-seven tribal community colleges and one college in Canada.2

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1980 Maine Indian Land Claims Settlement Act (25 USC 1721 et seq.) On October 10, 1980, the U.S. Congress enacted and the president signed the Maine Indian Claims Settlement Act, which removed any uncertainties on the title of two-thirds of the land within the borders of the State of Maine. This uncertainty on the title of privately owned lands in Maine was the result of the initial decision of the federal district court in Maine. The case was fijiled by the Native American Rights Fund on behalf of the Passamaquoddy Tribe and the Penobscot Indian Nation, who were claiming that the State of Maine had asserted the right to transfer their ancestral lands in violation of the 1790 Trade and Intercourse Act of the Continental Congress. Due to the unprecedented nature of the tribal claims, they had originally been dismissed by reporters in the local media until the federal court issued its ruling that upheld the validity of the legal theory underlying the tribes’ claim. Shortly after the court’s ruling, the New York Times and then other national newspapers gave prominent coverage to a case that made claims under this 1790 law, the Trade and Intercourse Act. Subsequently, real-estate property title-insurance companies came together and, after studying the court’s opinion, announced that they were placing a hold or freeze on all land transactions within two-thirds of the state. This action then triggered a response by the congressional delegation of the state, its two senators, and two members of the House of Representatives. They informed the leadership of the Temporary Select Committee on Indian Afffairs in the Senate, and the Interior and Insular Afffairs Committee in the House, that action must be taken to settle this lawsuit. At the time, I was still serving as chief counsel to the Select Committee and worked closely with Frank Duchenaux, who served as special counsel for Indian Afffairs to chairman Mo Udall in the House Interior Committee. I recall that within a matter of weeks, we produced a draft bill that was the subject of meetings convened in the White House under President Jimmy Carter. President Carter appointed a member of his stafff in the White House Counsel’s Offfijice to serve as his liaison to the two committees in the Congress. In addition to the terms of the settlement that addressed land claims made by the two tribal Nations, a third tribe joined in the bill, the Houlton Band of Maliseet Indians. Congress authorized $54 million to be used in a Land Acquisition Fund

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on behalf of the three tribes, monies that would be held in trust by the secretary of the Interior. As part of the settlement, negotiations resulted in agreements with the tribes that their territories would be subject to the jurisdiction of the State of Maine, while acquired lands would be held in trust and not be subject to tax and regulatory authorities of the state.

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Tribal Self-Governance Demonstration Act (HR 1223) The Demonstration Act consists of several paragraphs added in 1987 to the 1988 Appropriation Act of the Bureau of Indian Afffairs. This Demonstration Act authorized and directed the bia to enter into governmental compact agreements with the ten tribes who were members of the Tribal Self-Governance Coalition, whose leaders had successfully developed the idea of governmental compact agreements as a means of replacing the Indian Self-Determination Act (PL 93-638) contract agreements. The coalition sought to replace Self-Determination Act contracts, referred to as 638 contracts in reference to the PL number of the isda. They encountered serious obstacles thrown up by the bia to their proposals to amend the terms of the 638 contracts that were administered by local bia superintendents at their respective agencies. They interpreted the obstacles that they encountered as examples of the attempt by the bia offfijicers to retain control over the terms of these 638 agreements and control over the manner in which the tribes could function as a local government. The congressional hearings conducted by the Senate Indian Afffairs Committee extensively documented the degree to which the bia had been manipulating the law to retain control over how the funding for local governmental services could be administered by tribes. In the years following adoption of this “Demonstration” authority, the ten tribes who were members of the coalition compiled a successful record of the improvements that they could make once they were free of the controlling effforts of the bia. In the subsequent hearings conducted by the Senate committee, the groundwork was laid to modify the terms of the 1975 Indian Self-Determination Act and grant to all tribes the same rights and authorities provided for the members of the coalition.

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1990–1994 Tribal Self-Governance Act The Tribal Self-Governance Act is patterned after the authorities adopted in the 1987 Demonstration Act, with appropriate modifijications based on the experiences gained over the preceding two years. The Tribal Self-Governance Act made it explicitly clear that each tribe retains the option of continuing to use the “638 contracting” approach, and in the fijirst fijive to ten years following adoption of the 1990 law, many tribes experimented with these new authorities and approaches. Over the past thirty years, only a small number of tribes continue to use the 638 contracting approach, and over 240 tribes have adopted the tribal self-governance compacting approach.

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1988 Indian Gaming Regulatory Act (25 USC 2701-2722) The Indian Gaming Regulatory Act was adopted following the rendering of the decision by the U.S. Supreme Court in the case entitled California v. Cabazon Band of Mission Indians in 1987. In Cabazon Band the Court recognized the right of the band to engage in any type of commercial gaming activities on its lands that were not prohibited or penalized under the state’s criminal laws. As a response to the Court’s decision, Congress adopted a law that defijined three types of Indian gaming. Class I refers to social games with minimal amounts wagered or diffferent types of traditional games of chance. Class I gaming is subject exclusively to the regulatory authority of the tribes. Class II gaming refers to games of chance commonly known as bingo and card games that are either explicitly authorized by the state or are not explicitly prohibited. Class III gaming means “all forms of gaming that are not Class I or Class II.” The igra law also established a National Indian Gaming Commission (nigc) within the Department of the Interior with the chairman of the commission appointed by the president and the remaining two members of the commission appointed by the secretary of the Interior. The nigc functions as the regulatory authority for Indian gaming. They are authorized to issue orders of temporary closure of gaming activities, levy and collect fijines, and approve tribal ordinances or resolutions regulating class II gaming. Regarding class III gaming as approved in tribal-state compacts, any Indian tribe desiring to establish casino-style gaming shall request the state in which the tribal lands are located to enter into negotiations for the purposes of entering into a tribal-state gaming compact

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governing the conduct of such gaming activities. Upon receiving such a request from the tribe, the state shall negotiate with the tribe making the request in “good faith negotiations.” Such compacts shall take efffect only when notice of approval by the secretary of the Interior has been published in the Federal Register. The State of Florida contested the authority of Congress to impose a “Good Faith Negotiation” requirement as a violation of the Eleventh Amendment of the U.S. Constitution, and the Supreme Court concluded that the Article 3 powers of the Constitution authorizing Congress to regulate relations with Indian Nations did not usurp the rights of states to be protected against lawsuits in the absence of their explicit consent. However, the practice of good-faith negotiations has been followed in all other states notwithstanding the Seminole Tribe of Florida v. Florida decision, and there are now approximately 184 tribes who have successfully concluded tribal-state gaming compact agreements.3

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1989 National Museum of the American Indian Act (PL 101-185) The nmai authorizing legislation was enacted on November 28, 1989, as PL 101-185. The law established the National Museum of the American Indian as part of the Smithsonian Institution. The nmai expands the Smithsonian Institution by authorizing the construction of a new museum on the National Mall in Washington, DC, to house Native American artifacts from the Heye Foundation collections in the Museum of the American Indian. In recognition of the Heye Foundation’s origins in New York City, the law created the George Gustav Heye Center as a branch of the National Museum of the American Indian. The nmai offfijices in New York are located in the Alexander Hamilton U.S. Custom House near Battery Park at the south end of Manhattan in New York City. The nmai Act also required the secretary of the Smithsonian to prepare an inventory of all Indian and Native Hawaiian human remains and funerary objects (i.e., objects buried with the remains) located in the Smithsonian collections. Once the inventory was completed, the Smithsonian was obligated to establish a process that can lead to the repatriation of these items to the appropriate federally recognized Indian tribes and Native Hawaiian organizations from whom the items have been taken. This process was intended to create a model for subsequent repatriation legislation that would apply to all public and private institutions who maintain collections of such items. Following its creation in 1989, the nmai raised approximately $110 million to

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provide a match to federal dollars needed to complete construction of the nmai on the National Mall next to the Air and Space Museum on 4th and Independence Ave SW. The nmai opened its doors to the public in the summer of 2004.

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1991 Native American Graves Protection and Repatriation Act (25 USCA 3001-3013) The nagpra law expanded upon the principles of repatriation established in the National Museum of the American Indian Act by addressing claims of ownership and control of Native American human remains and cultural items that were excavated from or discovered on federal land and lands reserved for American Indian tribes pursuant to treaties and statutes. Under the provisions on ownership and/or control, nagpra provided that Native American human remains, funerary objects, and cultural items shall fijirst be returned to lineal descendants of the Native American, and where such descendants cannot be ascertained, ownership shall be with the Indian tribe or Native Hawaiian organization upon whose land such objects were discovered. Or, if the tribe cannot be identifijied, the items shall be returned to the tribes that have the closest cultural afffijiliation. Where the cultural afffijiliation cannot be reasonably ascertained, ownership and control will rest with the tribe that is recognized as aboriginal occupants of the territory or region in which the objects were discovered. If it can be shown by a preponderance of the evidence that a diffferent tribe has a stronger cultural relationship to the items, ownership and control rights will rest there. NAGRPA also addresses cases in which there has been an “intentional excavation” and removal of human remains for purpose of discovery or study. The discovery activities can only proceed if the parties have obtained a permit after consultation with the tribe and have obtained their consent. Where there has been an “inadvertent” discovery of human remains and funerary objects, the parties must notify the federal agency or tribe in writing. If the discovery has occurred in connection with construction, mining, logging, or agricultural activity, the person or parties must cease the activity and make an efffort to protect the items and notify the relevant federal agency or tribe. Finally, the NAGRA law provides that a repatriation efffort must be made when the human remains and associated items are in the possession of federal agencies and museums. When the “cultural afffijiliation” of the remains has been identifijied, then the agency or museum must

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expeditiously return such items if cultural afffijiliation is known. Where cultural afffijiliation has not been established, such items shall be returned if a tribe can show by “a preponderance of the evidence” the geographical, kinship, biological, archeological, or anthropological ties. The nagpra law has been internationally recognized as a model law in establishing the rights of Indigenous peoples to recover collections of human remains that were taken from them during the so-called “Age of Discovery.”

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A P P E N D IX 3

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Chronology of the Life and Work of Alan Parker

1942

Alan Richard Parker is born on Standing Rock Indian Reservation, Fort Yates, North Dakota. His father, William Gilbert Parker, enlisted in the U.S. Navy following the December 1941 bombing of Pearl Harbor. Alan’s mother, Margaret Baines Parker, moved their family to take up residence with her father, George Baine’s family on the Standing Rock Reservation. Following the end of World War II, the Parker family was reunited and moved to the Rocky Boy Indian Reservation in Montana.

1953

The Parker family becomes part of the bia relocation program and moves from Montana to Boyle Heights in East Los Angeles in the summer of 1953, residing there until the summer of 1956 when they move back to the Rocky Boy Reservation.

1956

Alan Parker enrolls in Assumption Abbey High School, Richardton, North Dakota. Assumption Abbey was a college preparatory school that also served as a Catholic seminary operated by the Benedictine monks. In 1958 Alan transfers from Assumption Abbey High School to Billing Central Catholic High School, Billings, Montana.

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Appendix Three

1960

Parker graduates from Billings Central and enrolls in St. Edward’s/St. Thomas Seminary in Kenmore, Washington.

1965

After completing four and one-half years of study, Alan resigns from St. Thomas Seminary and returns to his family home in Billings, Montana. Shortly thereafter, he is drafted into the U.S. Army and sent to Fort Ord, California. He is then sent to Fort Gordon, Georgia, for training as a radio operator, and in February 1966 he applies and is accepted into the Signal Corps, Offfijicer Candidate School (ocs). Upon completing ocs, he receives a commission to the rank of 2nd lieutenant, U.S. Army. He is then sent to Fort Hood, Texas, to help organize the 324th Signal Company, and after they complete training, they are deployed as a unit to Vietnam in August of 1967. In Vietnam, his fijirst assignment is to the Mekong River Delta of South Vietnam supporting the 9th Infantry Division.

1968

In February, the Tet Offfensive is launched by the Vietcong, and Alan is assigned to establish a signal site on Nui Ba Ra Mountain in support of the 101st Airborne. Upon completion of various assignments “in-country,” Alan is awarded a Bronze Star medal for meritorious service under combat conditions and discharged from the U.S. Army, returning to Oakland, California, in August. In September, Alan moves to Denver, Colorado, and joins the United Scholarship Service under the direction of Tillie Walker.

1969

Alan and Sharon Parker are married in June, in Yellow Springs, Ohio, and he enrolls in UCLA School of Law in the fall.

1972

Alan graduates from UCLA School of Law and is employed in Washington, DC, by the U.S. Department of the Interior, Solicitor’s Offfijice. In 1974 he moves to Albuquerque and joins the Indian Law Center, University of New Mexico, as a stafff attorney.

1975

Alan is appointed to the Tribal Government Task Force of the American Indian Policy Review Commission while continuing his work at the Indian Law Center.

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1977

Upon completion of his aiprc work, Alan is appointed as chief counsel to the newly established Temporary Senate Select Committee on Indian Afffairs. The fijirst bill passed by the committee is the Siletz Tribal Restoration Act in November.

1978

The Select Committee reports out for congressional passage the Indian Child Welfare Act and the American Indian Religious Freedom Act. The committee drafts legislation that authorizes the Tribally Controlled Community Colleges Assistance Act in October.

1979

The Select Committee holds hearings on the Ak-Chin Indian Water Rights Settlement Act and reports the bill for congressional passage in November. The committee conducts hearings and passes the Pascua Yaqui Tribal Recognition Act.

1980

The Select Committee passes the Maine Indian Land Claims Settlement Act and the Narragansett Tribe’s Rhode Island Indian Claims Settlement Act.

1981

Alan resigns as chief counsel to the Select Committee to establish his own law offfijice in Washington. He is hired by the Yakama and the Chippewa Cree to represent them in Washington, DC, and he joins the Board of the American Indian National Bank.

1982

The board asks Alan to serve as president of the bank in 1982. The Navajo Nation purchases $1 million in ainb stock, and the bank undertakes creation of a plan for fijinancial services to tribes across Indian Country. In 1987, the Board of ainb negotiates a sale of the ainb bank license to private investors in Washington, DC, after they are unable to persuade the Navajo Nation to purchase Great Western Bank and open offfijices on the Navajo Reservation.

1987

Senator Inouye asks Alan to serve as stafff director to the Committee on Indian Afffairs. After the sale of ainb is consummated, Alan accepts the Senator’s offfer. The Tribal Self-Government Coalition of tribes asks the

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Appendix Three

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committee to design legislation to amend the Indian Self-Determination Act and authorize tribal government compact agreements in place of contracts. This proposal is placed in the 1988 BIA appropriation as a Demonstration Authority. The compacting authority is made permanent law in 1990. 1988

The leaders of the Senate Committee on Indian Afffairs and the House Interior Committee join together to design legislation authorizing gaming compact agreements between tribes and the states in which they reside. The Indian Gaming Regulatory Act is adopted by the Congress just before Congress adjourns.

1989

Senator Moynihan asks Senator Inouye to help move the Museum of the American Indian from the Heye Foundation in New York to the Smithsonian. Senator Inouye discovers that George Heye has assembled a collection of 800,000 Indian artifacts, and Senator Inouye introduces the National Museum of the American Indian Act. With the help of Congressman Udall, he secures passage of a law for a new museum in the Smithsonian.

1990

The Native American Graves Protection and Repatriation Act is passed in Congress, and in 1991, Alan resigns his position with the Senate committee and is appointed to the faculty of George Washington University, where he establishes the National Indian Policy Center as a “think tank” on federal Indian policies with a group of tribal leaders.

1997

Alan moves to Olympia, Washington, and is appointed to the faculty of Evergreen State College. In 2002 Alan and Dr. Linda Moon Stumpfff establish an Advanced Studies Program in Tribal Governance within the Master of Public Administration program at Evergreen. Tribal students from the Pacifijic Northwest are recruited with the goal of acquiring professional credentials to serve as managers and leaders within their respective tribal governments.

2007

The National Congress of American Indians creates a Special Committee on Indigenous Nation Relations and appoints Alan as cochair. They reach

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out to Indigenous Nations of the Pacifijic Rim to negotiate a treaty. The United League of Indigenous Nations Treaty is negotiated and it calls for trade agreements and economic and political alliances among treaty signers. In September, Alan travels to Auckland, New Zealand, to witness Sharon Parker’s graduation award of a PhD. Following her graduation ceremony, Alan experiences a prolonged heart arrest that is followed by a miraculous recovery after treatment by a renowned Maori healer.

2013

The ulin presents their proposals to the ncai assembly of tribal delegates at their annual meeting in Tulsa, Oklahoma.

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2007

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Notes

Chapter 1. The Historical Context of the U.S. Government’s Policies Regarding Indian People Copyright © 2018. Michigan State University Press. All rights reserved.

1. An excellent summary of the historical background of the American Indian Chicago Conference can be found in historian Francis Paul Prucha’s book The Great Father: The United States Government and the American Indians, chapter 43, “Turnabout in the 1960s” (Lincoln: University of Nebraska Press, 1984), 1087‒1100. 2. For more on this exchange between Udall and Indian leaders, see Prucha, The Great Father, 1090. 3. For more on the Indian Resources Development proposal, see Prucha, The Great Father, 1090‒94. 4. For the full text of the act, Financing the Economic Development of Indians and Indian Organizations, see Title 25 US Code, sections 1451‒543. 5. PL 90-284, Title II, Section 202, April 11, 1968. 6. The full text of the Indian Civil Rights Act can be found in Title 25 of the U.S. Code, sections 1302 through 1331. 7. 25 USC 1311–12. 8. Reference to the U.S. Code provisions for the Indian Civil Rights Act found in Title 25 of the Code will reveal to the reader that in the fijirst ten years after the law passed, over two

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Notes

hundred “Notes of Federal Court Decisions” are recorded, an extraordinary number for a new statute. 9. Thomas Cowger, The National Congress of American Indians: The Founding Years (Lincoln: University of Nebraska Press, 1999). 10. Under the leadership of Senator Inouye, the Indian Self-Determination Act was amended in 1990 and superseded by the Tribal Self-Governance Act. 11. Cowger, National Congress of American Indians.

Chapter 2. The American Indian Policy Review Commission 1. Vine Deloria Jr., Custer Died for Your Sins (New York: Macmillan, 1969). 2. PL 93-580.

Chapter 4. The Indian Child Welfare Act of 1978 1. See Senate Report 95-597, hearings of August 19, 1978. 2. Senate Committee on Interior and Insular Afffairs, hearings of April 8‒9, 1974. 3. See 25 USC 1301 et seq. 4. Chief Justice John Marshall authored three decisions on Indian rights: Johnson v. M’Intosh in 1823 recognized Indian title to their lands, Cherokee Nation v. Georgia in 1831 held that they were “domestic, dependent nations,” and in 1832, Worcester v. Georgia recognized the political independence of Indian nations. Copyright © 2018. Michigan State University Press. All rights reserved.

5. For insight and understanding into how the icwa law is working today, readers are encouraged to examine the National Indian Child Welfare Association (nicwa) website.

Chapter 5. The American Indian Religious Freedom Act 1. See “Making the UN Declaration Work,” in The UN Declaration on the Rights of Indigenous Peoples, ed. Claire Charters and Rudolfo Stanhegan (Copenhagen: International Work Group for Indigenous Afffairs Press, 2009), www.iwgia.org. 2. See the text of “Making the UN Declaration Work,” www.iwgia.org. This group of international scholars call for the member nations of the UN to undertake their own studies on “Implementation of the UNDRIP.”

Chapter 7. Senator Inouye Becomes Chairman of the Senate Committee on Indian Affairs 1. Named for PL 93-638, the Indian Self-Determination and Education Assistance Act of 1975.

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2. More than three hundred of the tribes have since enthusiastically embraced these changes to the law and created their own group, the Self-Governance Tribes. See www. TribalSelfGov.org.

Chapter 8. Developing an Economy in Indian Country 1. See Title 25 US Code, sections 2701‒2721. 2. Www.shakopeedakota.org/donations.html.

Chapter 10. The National Museum of the American Indian Act 1. See www.NMAI.si.edu. The website for the nmai tells the story behind the creation of the nmai, its mission, and its facilities on the National Mall in Washington, DC, as well as the museum facilities at the Custom House in Battery Park, New York City.

Chapter 12. Looking beyond Our Borders in the Twenty-First Century 1. Commission on the Rights, Liberties, and Responsibilities of the American Indian, A Program for Indian Citizens: A Summary Report of the Commission on American Indian Conditions (Norman: University of Oklahoma Press, 1966). 2. Details regarding who attended this meeting and what were their goals are documented in the American Indian Policy Review Commission 1977 Final Report. The Chicago Conference report summarizing their federal policy recommendation was widely Copyright © 2018. Michigan State University Press. All rights reserved.

circulated at the time and had great influence on President Lyndon Johnson’s administration. 3. The Trust Responsibility Doctrine is based on and defijined in a series of Supreme Court decisions, including United States v. Kagama, 118 US 375, 1886; Seminole Nation v. United States, 316 US 316, 1942; and United States v. Mitchell, 463 US 206, 1983. 4. See www.indigenousnationstreaty.org for the website of the United League and to see a copy of the offfijicial United League Treaty as well as other news. 5. See 25 USC 477 and accompanying notes summarizing these federal court decisions.

Appendix 2. Legislative Steps on the Path to Sovereignty 1. See National Indian Child Welfare Association, www.nicwa.org. 2. See www.aihec.org for the current status of the tribally controlled community colleges. 3. See www.indiangaming.org for the website of the National Indian Gaming Association of Tribes, who report that the tribal casino enterprises of the members generated approximately $200 billion in revenue as of the end of 2011.

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Index Page numbers in boldface refer to the illustrations following page 56 (labeled A–L).

A

Copyright © 2018. Michigan State University Press. All rights reserved.

Abourezk, James, 13–17, 20, 22–23, 32–33,

American Indian Higher Education Consortium, 137–38

36–37, 81, 108–9, 123; ICWA and, 43–44;

American Indian Movement (AIM), 13

religious freedom act and, 48

American Indian National Bank (AINB),

Afffijiliated Tribes of Northwest Indians

56J, 57, 58, 76–77; Task Force on

(ATNI), 15, 49, 81, 82, 84 Afffordable Care Act, 9 Ak-Chin Indian Water Rights Settlement Act, 39, 51–53, 55, 126, 137

Extraordinary Obstacles to Indian Tribal Economic Development, 77, 78 American Indian Policy Review Commission (AIPRC): development of, 9, 13–30, 108;

Alaska Federation of Natives, 86

Economic Development Task Force,

Alaska Native Claims Settlement Act

76–77, 81; “Independent Committee on

(ANCSA), 14–15, 24, 86 Alaska Native people, 24–25 Alcatraz Island takeover, 13 Allen, Ron, 82–83 American Indian Chicago Conference on Indian Policy, 1–2, 6, 11, 74, 104 American Indian Development Corporation, 76

Indian Afffairs” proposal, 31–37; title page of report, 56F American Indian Religious Freedom Act, 45–49, 125, 135–36 AMERIND organization, 120 Andrews, Mark, 58 Andrus, Cecil, 10, 46 Arapahoe Tribe, 45

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Index

Assembly of First Nations of Canada, 49–50, 114–15

Byler, William, 39–40, 42–43 Byrd, Robert, 32–33

Association on American Indian Afffairs, 39–40, 42 Attcity, Wilbur, 15, 23, 24, 35 Ayer, Frances, 23, 42, 134

C California v. Cabazon Band of Mission Indians, 69–70, 140 Cantwell, Maria, 81

B Baca, Joe, 76

Cardinal, Raymond, 116

Bain, Mary, 34

Carter, Jimmy, 10, 34, 45–46, 136, 138

Baine, George, 92

Cheyenne Tribe, 45

Bartlett, Dewey, 36

Chino, Wendell, 1

Battle of the Little Big Horn (“Custer’s Last

Chippewa Cree Tribe, 61, 87, 128

Stand”), 88

Cladoosby, Brian, 82

Bennett, Ramona, 43

Clinton, Bill, 59, 130

Bennett, Robert, 2

Cobell v. Salazar, 106

Binney, Allison, 81, 82, 83

Cohen, Felix, 11, 39; Handbook of Federal

blood quantum criterion, 28–29

Copyright © 2018. Michigan State University Press. All rights reserved.

Cardinal, Jaret, 56A, 116

Indian Law, 40, 42, 133–34

Boldt, George, 20–21, 31, 72

Collier, John, 1, 11, 18

Borbridge, John, 14–15

colonialism, 7–8, 63, 76, 107

Bordeaux, Lionel, 87

Commission on the Rights, Liberties, and

Brookings Institute study. See Merriam Commission Report on Indian Policy Brown, Eddie, 79

Responsibilities of the American Indian, 103–4 Committee on Indian Afffairs, 10, 16,

Bruce, Louis, 15, 22, 36

26–27, 39, 46, 52–54, 81, 82; creation

Bureau of Indian Afffairs (BIA), 7–11, 17,

of independent, 31–37; 123–24; under

18–19, 33, 67; blood quantum criterion,

Inouye’s chairmanship, 57–64, 68, 75, 78,

28–29; budget of, 34, 54, 64, 72; Courts

85, 92, 111–12, 127, 129–31

of Indian Offfenses, 3, 42; Guaranteed Loan Program, 78; Offfijice of Federal

Committee on Interior and Insular Afffairs, 32, 124

Acknowledgement, 26–27; opposition to

Courts of Indian Offfenses (CFR courts), 3, 42

ISDEA, 23–24, 61–65, 108–9, 127, 134, 139;

Cowger, Thomas, 6, 11

Relocation Program, 9, 22; shortcomings

Cox, Michael, 35, 36

of, 13–14, 24, 104–7

Crain, Allen and Anna Parker, 86, 88

Bush, George H. W., 79, 97

Crow Indian Nation, 80, 88

Butler, LaFollette, 108

Pathways to Indigenous Nation Sovereignty : A Chronicle of Federal Policy Developments, Michigan State University Press,

Index

D

157

Goldwater, Barry, 53

Daschle, Tom, 87

Gore, Al, 56L

Dawes Act, 19, 105

Gore, Tipper, 56L

“Declaration of Indian Purpose, The,” 2, 11

G-O Road case. See Lyng v. Northwest

DeConcini, Dennis, 53

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Cemetery Protective Association

Deer, Ada, 15

Gorton, Slade, 21

Delacruz, Joe, 19, 61, 62, 64, 94, 111, 113, 126

Grand Ronde Tribe, 16

Deloria, Sam, 35, 107–8

Gregoire, Christine, 71–72

Deloria, Vine, Jr., 14, 75, 116

Gros Ventre Tribe, 52

Dial, Adolph, 15, 25 Dorgan, Byron, 81, 83

H

Ducheneaux, Ernie, 23

Haida Tribe, 87

Ducheneaux, Frank, 43, 138

Harjo, Suzan Shown, 34, 45–46, 48, 49, 94–95, 135–36

Copyright © 2018. Michigan State University Press. All rights reserved.

E

Harper, Keith, 106

Ebona, Andy, 56A

Harris, Fred, 34–35

Echo-Hawk, Walter, 56I

Harris, La Donna, 34

education issues, 8, 124

Hatfijield, Mark, 14, 16–17, 23, 36–37, 39, 81

Ehrlichman, John, 6–7

Henry, Hoshi, 56I

Ervin, Sam, 42, 133

Hensley, Will, 86

Ettawageshik, Frank, 117, 119

Heye, George Gustav, 91–93, 141

Evans, Dan, 62, 63–64, 78, 111, 127

Hopi Indian Reservation, 89 Horse, Ella Mae, 34, 36

F

Houlton Band of Maliseet Indians, 138–39

Flute, Jerry, 15, 23, 24, 35

House Concurrent Resolution (HC-108), 7

Franken, Al, 83

Humphrey, Hubert, 6 Hunt, Jojo, 25

G gaming and gambling enterprises, 69–74,

I

109–10, 121, 128; three classes of, 140.

Indian Appropriations Act, 54–55

See also Indian Gaming Regulatory Act

Indian Child Welfare Act (ICWA), 27–28,

(IGRA) General Allotment Act, 14, 18, 28, 105–6 George III, 55

39–44, 48, 124–25, 135 Indian Civil Rights Act, 3–5, 24, 42, 133–34; Title II of, 4–5; Title XXV of, 36, 151n28

George, Keller, 56I

Indian Civil Rights Task Force, 23, 24, 133–34

Gerard, Forrest, 10, 34, 45–46, 82

Indian Development Bank proposal, 75–84

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Index

Indian Development Finance Corporation (IDFC), 9, 30, 77–78, 80–84 Indian Gaming Regulatory Act (IGRA), 70–71, 78, 83–84, 85, 109–10, 128, 140–41

Jamestown S’Klallam Tribe, 83 Jeffferson, Evelyn, 56A Johnson, Lyndon B., 2, 6, 11, 24, 104 Johnson-O’Malley Act, 8–9

Indian Financing Act, 3, 9, 72, 78 Indian Health Care Improvement Act, 9 Indian Health Service (IHS), 7–8, 10–11, 54, 62, 63, 65, 105 Indian Reorganization Act (IRA), 2, 18–19, 23, 28–29, 105, 107, 120

K Keeler, W. W., 104 Kennedy, John F., 1–2, 11, 74–75, 103–4 Kennedy, Ted, 17, 35 Kickingbird, Kirke, 19, 22–23

Indian Resources Development Act, 2–3

Kilberg, Bobbie Jo, 7

Indian Self-Determination and Education

Klamath Tribal Termination Act, 16

Assistance Act (ISDEA), 7–8, 10, 23–24,

Klamath Tribe, 16

60–65, 104–5, 107–8, 126–27, 134–35, 139, 152n10 Indian treaties, purpose and number of, 54–55

LaClair, Leo, 56I Lakota Tribe, 45, 87–88, 128

Indian Trust Council Authority, 9–10

Locke, Gary, 71

Indian Water Rights Settlement,52–53

Lumbee Indian community, 25

Inouye, Daniel K., 30, 33, 57–64, 68, 75, 109;

Lummi Indian Nation, 68, 116

gaming issue, 70; Indian Development Copyright © 2018. Michigan State University Press. All rights reserved.

L

Bank proposal, 78, 79, 80–83; National Museum of the American Indian and,

Lyng v. Northwest Cemetery Protective Association, 48–49, 136 Lyons, Oren, 56K

92–100; photograph of, 56I; travels of (1987–1989), 85–90, 129–30; tribute to,

M

129–31. See also Committee on Indian

MacDonald, Peter, 15, 16, 36, 75–76, 81

Afffairs

Maine Indian Land Claims Settlement Act,

Inouye, Irene, 56I

27, 39, 56, 126, 138–39

Inter-Tribal Trade Development Act, 119–20

Majel, Juana, 113–15

Iroquois Confederacy, 55

Mankiller, Wilma, 13

Irwin, Sam, 3–4

Maori people, 49–50, 56B–E, 74, 112–18, 128

Ivan, Ivan, 56A

Marchand, Michael, 56A Marshall, John: trilogy of cases, 42, 55, 152n4

J

McAdams, Robert, 92, 93, 95, 99–101

Jackson, Henry “Scoop,” 21, 46

McNickle, D’Arcy, 1

James, Jewel, 116

Mead, Aroha, 56A, 114, 116

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Index

Meeds, Lloyd, 14, 20–21

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159

106, 138

Melcher, John, 46

Natural History Museum, 93–95, 99–101

Menominee Restoration Act, 15

Navajo Nation, 80, 89, 128, 137

Merriam Commission Report on Indian

Nixon, Richard M., 3, 6; “A New Day for the

Policy, 14, 17–19 Metcalf, Lee, 14, 36 Metzenbaum, Howard, 36, 37

Indian” message and initiatives, 7–10, 23–24, 75, 134 Norwood, John, 27

mining industry opposition, 47, 125 Minthorn, Antone, 81 Mohegan Tribe, 73 Mossman, Kawe, 80, 82 Moynihan, Daniel Patrick, 92, 93, 96

O Obama, Barack, 49, 56, 80, 84, 106, 121; Inouye eulogy, 130–31 O’Connor, Sandra Day, 49 Offfijice of Economic Opportunity, Indian Desk

N Narragansett Indian Land Claim and Settlement Act, 26–27, 136 Nash, Doug, 23, 42, 134 Nash, Philleo, 2

Copyright © 2018. Michigan State University Press. All rights reserved.

National Congress of American Indians

of, 24–25 Oglala Lakota Tribe, 87 Oglala Sioux Tribe, 14 oil and gas industries opposition, 14, 32, 33, 47–48, 106, 125 Old Coyote, Henry, 46, 135

(NCAI), 1–2, 7, 11, 49, 59, 82–83, 94, 108;

Old Person, Earl, 1

twenty-fijirst-century meetings of, 112–13,

Ortiz, Simon, 94

116 National Indian Child Welfare Association, 125 National Indian Gaming Association (NIGA), 73, 74, 110 National Indian Gaming Commission (NIGC), 70–71, 110, 140 National Museum of the American Indian (NMAI), 78, 91–98, 99–101, 141–42

P Parker, Alan R.: background of, 25, 42, 54, 61, 75, 86, 92, 107; chronology of, 145–49; photographs of, 56B–E, G–J Parker, Ely S., 2 Parker, Sharon, 34, 108, 113 Parker, William Gilbert, 88 Passamaquoddy Tribe, 27, 126, 138–39

Native American Church, 46, 125, 135

Pauma Indian Nation, 113

Native American Graves Protection and

Pechanga Luiseno Indians, 74

Repatriation Act (NAGPRA), 95, 99–101,

Pell, Claiborne, 136

142–43

Penobscot Tribe, 27, 126, 138–39

Native American Press Association, 45

Pequot Tribe, 73

Native American Rights Fund (NARF), 26,

peyote, 46, 125, 135

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160

Index

Price, Monroe, 54

Siletz Tribe, 16, 111

Public Law 83-280, 5

Sinte Gleska Tribal College, 87

Public Law 93-638. See Indian Self-

Sitting Bull, 92

Determination and Education Assistance

Smith, Graham, 113–14, 116

Act (ISDEA)

Smith, Ken, 16–17, 81–82

Pueblo tribes, 4, 6; of Taos, 8 Puyallup Tribe, 73, 111–12

Smithsonian Institution, 34, 78, 92, 93–97, 99–100, 141 Solomon, Mark, 117–18

Q Quinault Indian Nation, 19

Stallings, Steve, 76 Standing Rock Sioux Tribe Water Protectors, 125–26

R

Steiger, Sam, 14, 23, 53

Reagan, Ronald, 9, 17, 79, 81–82

Stevens, Ernie, 19, 22–23, 33, 36

Reid, Harry, 131

Stevens Treaties, 20, 72

reservations: purpose and number of, 10, 105,

Swimmer, Ross, 82

107; trust status of, 67–68, 105–6, 111 Rhode Island Indian Claims Settlement Act. See Narragansett Indian Land Claim and

Task Force on Economic Development, 16, 30

Settlement Act

Task Force on Indian Afffairs, 2

Richtman, Max, 19, 22–23, 33–34 Rigney, Daryle, 56A, 116 Copyright © 2018. Michigan State University Press. All rights reserved.

T

Task Force on Tribal Government, 15, 18, 23, 28–29, 35

Rockefeller, David, 92–93

Task Force on Unrecognized Tribes, 25–26

Rocky Boy Indian Reservation, 61, 86, 87–88,

Tax, Sol, 1

107

Taylor, Peter, 23, 36, 39, 41–44, 134

Rosebud Indian Reservation, 87

termination policies, 1, 2, 7, 9, 16, 74–75, 103

Royal Proclamation of 1763, 55

Tester, John, 80–81, 83 timber industry opposition, 16, 33, 47–49,

S

106, 125–26, 136

sacred sites protection, 45–49, 125–26

Tlingit Tribe, 87

Santa Clara Pueblo v. Martinez, 6

Trail of Broken Treaties march, 13

Schierbeck, Helen, 133

tribal development bank, need for, 30

Sealaska Regional Corporation, 15, 87

Tribal Government Tax Status Act, 68

Seminole Tribe, 73, 128

Tribally Controlled Community College

Seminole Tribe of Florida v. Florida, 141

Assistance Act, 137

Shakopee Mdewakanton Sioux Nation, 73–74

tribal restoration acts, 15, 111

Shoshone Arapahoe Tribe, 88

Tribal Self-Governance Act, 62, 75, 78, 107,

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Index

112, 127, 140, 152n10

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161

“Urban Indians,” 9, 15

Tribal Self-Governance Coalition, 24, 61–64, 109, 126–27, 139 Tribal Self-Governance Demonstration Act, 139

W Warm Springs Tribe, 16 Warren, David, 94

tribal sovereignty issue, 40, 42, 111, 114

Weakee, Bill, 76

Tribal Trade Corporation proposal, 119–20

West, W. Richard, Jr., 97

Trudell, Richard, 56K–L

West, W. Richard, Sr., 97

Trump, Donald, 121

White Crow, Jake, 15

trusteeship. See under reservations

Wilson, Meredith, 104

Tulalip Tribes, 73

Wind River Indian Reservation, 88 Winters Doctrine (Winters v. United States),

U

52, 126, 137

Udall, Mo, 9, 10, 43, 48, 53, 95–96, 134, 138

Working Group of Indigenous Peoples, 115

Udall, Stewart, 2–3, 11, 103–4

World Bank, 76–78, 83

Udall, Tom, 78, 83

World Indigenous Peoples Conference on

Umatilla Tribes, 81 UN Declaration on the Rights of Indigenous

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