March 04, 2021 HUMAN RIGHTS

The Next Four Years for Indian Country Need Human Rights

by Patty A. Ferguson-Bohnee and Lauren van Schilfgaarde

The next four years offer an exciting opportunity to transition federal Indian policy to a human rights framework. The ongoing problems faced by Native peoples can be traced to systemic policies that undermine their basic human rights. Although efforts have been made to change policy, more must be done.

The Trump administration notably lacked any cognizable federal Indian policy. In many ways, the status quo of federal-tribal relations was maintained, at least until it conflicted with other political objectives. This was most prominently felt in the federal willingness to desecrate sacred and culturally significant places for natural resource extraction and the construction of a border wall. Yet, the need to incorporate human rights into federal Indian policy extends far beyond the Trump administration. As we transition administrations again, the federal government must commit to a new paradigm and not merely revert to the Indian policies under the Obama administration.

Indigenous peoples are distinct, culturally and politically. Tribal sovereignty and the right to self-determination have long been recognized under federal and international laws. Unfortunately, federal Indian policy remains shackled to settler colonialism. Through laws and court decisions, the United States has hampered tribal sovereignty, such as limiting tribal jurisdiction to prosecute non-Indians, tax, regulate the environment, and issue protection orders. These limitations impede tribal self-determination.

It is time for the U.S. government to embrace tribes as sovereign partners. This approach would bring the United States in line with international norms, such as those envisioned in the United Nations Declaration on the Rights of Indigenous Peoples. Embracing a human rights framework fully will be complex, but committing to a government-to-government relationship with tribes would be a great place to start. 

It is time for the U.S. government to embrace tribes as sovereign partners.

It is time for the U.S. government to embrace tribes as sovereign partners.

DYAA ELDIN ON UNSPLASH

Federal Government Should Engage in Meaningful Government-to-Government Relationships with Tribes

To uphold its federal trust obligations to tribes that have long been underfunded and neglected, the new administration should revive and update President Clinton’s 2000 Executive Order 13,175 on tribal consultation to include free, prior, and informed consent. See, for example, the U.S. Commission on Civil Rights’ report, Broken Promises: Continuing Federal Funding Shortfall for Native Americans (2018). The ABA has long advocated for recognizing and upholding tribal treaty rights. ABA Res. 110 (1980). In McGirt v. Oklahoma, the U.S. Supreme Court recently affirmed that the Muscogee (Creek) Nation’s reservation was not disestablished, upholding treaty promises negotiated between the Creek Nation and the U.S. government. The administration should strive to ensure that all tribal treaty rights are upheld and that Natives are afforded equal protection. As the COVID-19 health crisis and the missing and murdered indigenous persons crisis have exposed, equal protection and human rights remain elusive for most Natives within the United States.

Federal Government Should Improve Native Health Care and Infrastructure

The federal government has an obligation to provide health care to all Native people. Health care is primarily provided through the Indian Health Service (IHS). IHS, which operates similarly to the Veterans Health Administration (VA), provides services through hospitals, clinics, and health stations and helps fund tribally operated health facilities. Yet, per capita spending at IHS is a fraction of that of Medicare, Medicaid, and the VA. The lack of resources dedicated to Native health and well-being is simply unconscionable. COVID-19 exposed the gross underfunding. Native communities have experienced a devastatingly disproportionate number of deaths because of the disastrously small number of hospital beds, almost no intensive care unit beds, and an extremely limited number of medical personnel.

COVID-19 has also exposed other inequities, including severe shortages of housing, water, and broadband infrastructure. Inadequate housing means overcrowding; lack of water means sanitizing is limited; the lack of broadband means no virtual school, work, and telemedicine. COVID-19 has made it even more critical to improve access to health care for Natives. See Mary Smith, “COVID-19 in Native American Communities: A Quiet Crisis That Has Become an Ear-Deafening Emergency.” There is a well-documented need for significantly increased funding for health care and basic infrastructure in Indian Country.

The Biden administration must recognize the health crisis for what it is, and IHS needs to be fully funded. Basic humanitarian infrastructure, including housing, electricity, paved roads, water, and broadband, needs to be implemented. Critically, the federal government needs to engage with tribes as sovereign partners so that it can understand not only the severe challenges facing tribes but how to best support them.

Tribes Should Be Allowed to Prosecute Non-Natives

The crisis of violence in Indian Country is not new. The Sovereign Bodies Institute notes the crisis is rooted in colonial violence, dating back to the first moments of contact. Amnesty International’s 2011 Maze of Injustice report sheds a stark light on the devastating extent of violence in the twenty-first century, particularly gender-based violence. Native women are more than 2.5 times more likely to be raped and sexually assaulted than other women, and 86 percent of perpetrators are non-Native.

Awareness of the violence faced by Native women has grown rapidly in the last five years, garnering significant media attention, legislative efforts, awareness campaigns, and grassroots community work. The Trump administration established Operation Lady Justice, a presidential task force on missing and murdered Natives. Congress passed Savannah’s Act and the Not Invisible Act, mandating the Departments of Justice and Interior to establish protocols and commissions on missing and murdered Natives.

Yet, a large impediment to addressing violence remains unresolved: Oliphant v. Suquamish Indian Tribe. The Supreme Court held in 1978 that tribes no longer possessed jurisdiction to prosecute non-Natives. The 2012 Indian Law and Order Commission recommended a full restoration of inherent tribal criminal jurisdiction over all persons. Congress attempted to start this process in the 2013 Violence Against Women Reauthorization Act (VAWA) by providing tribal criminal jurisdiction over non-Natives for domestic violence, dating violence, and the violation of protection orders. But this limited authorization has proved cumbersome, failing to include lesser crimes and attendant crimes like crimes against children or law enforcement. Notably, VAWA expired in 2018, and Congress has failed to reauthorize it.

President Biden, when a senator, championed the initial VAWA of 1994. The Biden administration must continue this work by responding to the missing and murdered Native persons crisis through the lens of tribal self-determination and human rights. Tribes must be enabled to protect themselves. This must include a full Oliphant fix.

Tribes Should Have the Right to Self-Determine Environmental and Cultural Protections

Many Natives have a deep cultural connection to the environment and feel a duty to steward the environment’s well-being for future generations. Yet, contemporary tribal territories are a fraction of tribes’ ancestral homelands. Resource extraction, landfills, military weapons testing, and nuclear storage facilities have been disproportionately concentrated on tribal lands. Meanwhile, due to the history of Indian removal and reservations, many significant tribal cultural resources are located on federal lands. Tribes have a right to self-determine environmental regulations, to protect their cultural heritage and to maintain and strengthen their connections to their cultural resources.

The federal government unilaterally reduced protections for sacred spaces, including the Bears Ears National Monument, and fast-tracked oil pipelines and fossil fuel extraction in places like Chaco Canyon. As a consequence, tribes were denied the right to provide free, prior, and informed consent in light of impacts on their cultural resources. Further, Native Americans contribute the least to climate change but bear the effects disproportionately.

The nomination of Rep. Deb Haaland (D-NM), a citizen of Pueblo of Laguna, as secretary of the Department of Interior, the appointment of Native lawyers to leadership posts in the Interior, the establishment of a climate change cabinet, and the revocation of the Keystone XL permit are incredibly promising signals that the Biden administration is serious about empowering and engaging with tribes and the environment. But the next step will be critical. Tribes must be included. Tribes must be empowered to be meaningful partners to address climate change and to determine their own environmental regulations. Tribes must be consulted as a necessary component of the sovereign-to-sovereign relationship between the federal government and tribes.

The Path Forward

The Biden administration has a unique opportunity to craft meaningful federal Indian policy and to move federal Indian policy beyond the settler-colonial framework into a human and Indigenous rights framework. This framework demands that more Natives be selected for high-level federal positions; that all federal agencies have a meaningful, cohesive free, prior, and informed consent policy; that the implicit divestiture chains be lifted from tribal jurisdiction, including a full Oliphant fix and a full Montana fix; and that infrastructure within Indian Country be developed.

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Patty A. Ferguson-Bohnee

Faculty Director, Indian Legal Program, ASU Sandra Day O'Connor College of Law; Director, Indian Legal Clinic, ASU Sandra Day O'Connor College of Law; Co-Chair, Native American Concerns Committee, ABA Section of Civil Rights and Social Justice

Patty A. Ferguson-Bohnee is the faculty director of the Indian Legal Program and director of the Indian Legal Clinic at the Sandra Day O’Connor College of Law. She is a citizen of the Pointe-au-Chien Indian Tribe and serves as a co-chair of the ABA Civil Rights and Social Justice Section Native American Concerns Committee. 

Lauren van Schilfgaarde

Director, San Manuel Band of Mission Indians Tribal Legal Development Clinic, UCLA School of Law; Co-Chair, Native American Concerns Committee, ABA Section of Civil Rights and Social Justice

Lauren van Schilfgaarde (Cochiti Pueblo) is the San Manuel Band of Mission Indians Tribal Legal Development Clinical Director at UCLA School of Law and serves as co-chair of the ABA Civil Rights and Social Justice Section Native American Concerns Committee. Previously, she was the tribal law specialist at the Tribal Law and Policy Institute.