In the midst of the Dakota Access Pipeline controversy, Trump’s transition team has suggested that it may pursue efforts to “privatize” Indian reservation lands as a way of circumventing regulatory hurdles that stand in the way of Tribal oversight of operations such as drilling and other types of resource extraction.
Now, “privatization” is one of those words that can mean any number of things, and in this case, the true meaning is especially murky given the complexity of the relationship between Tribal governments and the United States federal government.
There is little doubt that for many leftwing and rightwing activists, the term “privatization” will elicit very different reactions. For many rightwing activists, the term will spell an opportunity to start selling off tribal lands piecemeal in the pursuit of allegedly more “efficient” ownership outside the influence of Tribal governments. Perhaps it might even be a chance to get rid of the Tribes completely. For leftwing activists, it will mean largely the same thing, except for them, this will be an overwhelmingly negative development and even lead to what is known as “Indian termination“ which was a federal policy to undermine tribal sovereignty.
Hopefully, when the Trump team speaks of privatization, it intends to pursue neither of these options, and really means it only intends to put Tribal lands out of the reach of federal regulators.
According to several sources within the Trump transition team the stated intent of the privatization policy would be to allow Tribal governments to circumvent US federal regulations in favor of more localized decision-making. According to Reuters:
Now, a group of advisors to President-elect Donald Trump on Native American issues wants to free those resources from what they call a suffocating federal bureaucracy that holds title to 56 million acres of tribal lands, two chairmen of the coalition told Reuters in exclusive interviews...
The tribes have rights to use the land, but they do not own it. They can drill it and reap the profits, but only under regulations that are far more burdensome than those applied to private property.
“We should take tribal land away from public treatment,” said Markwayne Mullin, a Republican U.S. Representative from Oklahoma and a Cherokee tribe member who is co-chairing Trump’s Native American Affairs Coalition. “As long as we can do it without unintended consequences, I think we will have broad support around Indian country.”
If privatization means taking more land out of the hands of the US federal government, then that’s all to the best. Privatization does not need to mean ending the status of that land as Tribal land.
Tribal Lands Should Be Beyond the Reach of the Federal Government
The relationship between Tribal governments and the US federal government has long been complex.
To simplify greatly: this relationship is governed by treaties, and the Indian Tribes are sovereign governments. In practice, of course, the Tribes are only semi-sovereign and even less sovereign, arguably, than the member states that make up the United States.
Unfortunately, the existence of Indian lands and the Tribes do not enjoy the same explicit protections that the member states of the United States enjoy. Thus, the treaties that govern US-Tribal relations can be much more easily abrogated unilaterally by the federal government. Nevertheless, the Tribes are technically political entities outside the states in which they are located and thus have a direct relationship with the Federal government. They are, in this way, similar to the states themselves and are, at least historically, intended to enjoy sovereignty independent of both the federal government and the state governments.
In spite of this, the federal government exercises immense amounts of direct regulatory power over Tribal lands, and can regulate internal Indian affairs right down to whether or not the Tribes can legalize marijuana.
RELATED: Feds to Indian Tribes: We (Probably) Won’t Prosecute You If You Grow Cannabis
Nevertheless, the treaty-granted status of the Tribes does constitute a check on the power of the federal government.
This idea has been explored by Kevin Bourgault of the Center for Indigenous Self-Determination Research. Bourgault writes in an article titled “Tribal power an important check on ruling elite“:
Tribes are the sole entities in our society with established treaty rights... As sovereign nations, tribes are equivalent political entities to the states in which they are located. This relationship means that tribes can act as stewards to protect the air, water, flora and fauna in ways that short-term decision-makers governed by campaign contributions and elections cycles can’t or won’t.
Tribes also are among the few entities that have an immediate claim to legal redress and mitigation. This means that tribes are uniquely positioned to act quickly within a legal system that is becoming more and more byzantine and unresponsive to immediate needs, including the pending environmental crisis. Unlike other environmental protection groups, tribes have a legal fast-track to federal courts and can act nimbly and effectively to seek immediate review and decisions. As such, tribes can prevent environmental damages in ways others cannot.
Bourgault has framed the argument in terms of environmental issues, but the larger issue here is one of decentralization.
Because of their treaty status, Tribal governments can act more effectively than individuals can as a veto on federal policy, and thus against the interest groups that enjoy federal favoritism.
In other words, Tribal lands add an additional element to American decentralization and federalism that should be nurtured by those seeking to place greater limitations on federal power.
Unfortunately, many pundits who claim to be for federalization and decentralization have a hard time overcoming knee-jerk anti-Indian views and are prone to belittling efforts by Tribes to increase their own autonomy and break free of federal controls.
But, if we are to advocate for a decentralized United States with greater — or even total — autonomy for states, the same should be advocated for tribal lands.
Indeed, abolishing the tribes or their treaties would only further centralize power in Washington over vast areas of land. The federal government already owns 640 million acres, and abolishing what limited Tribal sovereignty that exists would only grant further power to the feds.
RELATED: Oregon and the Problem of Federal Lands
And lest we think that the feds can be trusted to privatize those lands we’d do well to remember that the reason the feds own so much land in the first place is because they’re terrible at privatizing it and are happy to keep it for themselves.
But, Tribal Governments Are Corrupt!
In spite of all of this, many advocates for undermining Indian sovereignty claim it must be done because Tribal governments are corrupt. Thus, the corruption of a local government institution, we are told, in sufficient grounds for the federal government to dissolve those governments and reform them as the feds see fit.
This is a truly bizarre position for any advocate for so-called “states’ rights” or decentralization to take and would certainly further pave the way for far more federal intervention in tribal, local, and state affairs.
Indeed, the logic behind the call for dissolving corrupt Tribal governments is identical to that of the claim that it is the prerogative of the US government to travel the globe overthrowing foreign regimes that do not meet the approval of Washington politicians.
The proper position, of course, is to recognize that any efforts to make Tribal governments less corrupt is a matter for Tribal members and residents of the Tribal lands. Just as the residents of Texas should decide for themselves how the government of Texas works, so should the members of the Navajo Nation decide how the Navajo tribal government works. Federal involvement is simply not necessary. Non-Indians who do not wish to be subject to Tribal government need not live on Tribal lands or travel through them.
RELATED: How The Feds Got All That Western Land (and Why It’s a Problem)
Indeed, the idea that the federal government will solve the problem of corruption in Tribal government is downright risible given that corruption of Tribal governments has long been largely a product of federal involvement in Tribal affairs, including all those welfare programs and federal grants that used as a carrot to be yanked away from any Tribal politician who doesn’t want to take orders from Washington. Historically, the feds are notorious for running their own puppet candidates in Tribal elections who can serve as a direct conduit between Tribal governments and the federal government’s favored interest groups.
But, of course, the matter of welfare programs such as the Indian Health Services are a separate issue from the Treaty rights of Tribal governments. Those who think that welfare spending is a justification for unilaterally abrogating treaties with sovereign tribes are deeply confused. Were this same logic applied to the states, then states that rely heavily on federal spending (e.g., Virginia, Kentucky, New Mexico) should be abolished, made into federal property, or merged into other states.
If anything, the federal government has already benefited far too much as the expense of Indian tribes. Since 1880, much of the land that has been removed from sovereign Tribal hands has simply been added to the hundreds of millions of acres of federally owned lands.
Most of Western Colorado, for example, was Ute Tribal land until 1880, and much of that land today remains in federal hands where the federal government benefits from mining and drilling leases. The transfer of millions of acres from Indian lands to the US federal government since the late 19th century has only served to further enrich the federal government and its favored special interests.
If we are to take decentralization seriously, the sovereignty of locally-controlled Tribal lands should be a priority, and be seen as a key factor in developing meaningful checks on federal power through local sovereignty, nullification, and secession.
