With such a laudable goal, the sharing of traffic safety data between jurisdictions—a countermeasure designed not only to increase the protection of the public but also to inform the courts in such a way as to make their judgments even more equitable and just—why might American Indian tribes be reticent to participate by sharing their data? It cannot be that the scope of the problem is less than in state jurisdictions. The most dangerous roads in the country are in Indian Country. While it is true that “federally recognized tribes are not required to report their crash data into a state or federal reporting system, nor are they required to maintain their own systems[,]” nothing prevents such reporting or the creation of such internal, tribal-specific programs, and, indeed, Congress “[r]ecogniz[es] the need for all public Federal and tribal transportation facilities to be treated under uniform policies similar to the policies that apply to Federal-aid highways and other public transportation facilities. . . .” Yet, according to the Department of Justice (DOJ), “[m]any tribal courts do not collect data that could improve court operations, including data to track the life of a case, social service agency data, re-offender lists, and information on diversion prior to filing cases.”
It is axiomatic that if you do not collect data, you cannot share it. An obvious barrier to the collection and sharing of data is financial, but under the surface is another barrier tied to the shared cultural histories of America’s Indian tribes. Thus, to gain a full appreciation of the origins of such reluctance to share data, we must look to historical antecedents.
The Exhibition of Indigenous Bodies
Following contact, the accepted historical record contemplates a one-way flood of Europeans to the Americas, bent on colonization. This is incomplete. In fact, thousands of Indigenous people journeyed the other way to Europe, many enslaved, but also others as diplomats as well as visitors and workers. In so doing, some were received “as spectacles,” unusual objects in public displays. A well-known, if later, example is that of the great Cherokee Chief Ostenaco, who voyaged to London at his own behest in the summer of 1762 in the company of other Cherokee dignitaries and the American explorer and soldier Henry Timberlake. Upon arrival, he caused a sensation all over the town, as locals queued for hours just to get a moment with him, standing regally in his exotic clothes, with his tattoos and makeup. Ostenaco met King George III. Notably, he sat for the acclaimed painter Joshua Reynolds, sessions that mark not just the preeminence of his status but also the fact that he no longer controlled his own image.
This appropriation of Indian bodies has continued, in one fashion or another, for centuries, even to the present day, as Native people have fought to change the names of American sports teams. However, this process includes far more than carney spectacles, paintings, and logos; it extends into the physical realm to the bone. No less an authority than the Smithsonian Museum has reported, “[r]ecent estimates have placed the number of Native American remains in U.S. museums at about 500,000.” Put another way, Americans, white Americans, conducted a massive campaign to collect, exhibit, and study the remains of the Indigenous population of this continent. That all of this was in the service of the ignorant idea that skull size, or other supposedly identifying characteristics, could somehow prove the superiority of the white race and justify the extirpation of another makes the appropriation and the retention of these remains chilling.
This may be startling news to some readers, but Native people are achingly aware of it. Given this, it becomes easier to see why American Indians may be reluctant to hand over more data about their people.
The Extinguishment of “Indianness”
Exhibiting Indian bodies is one thing, but Native people in this country have suffered repeated attempts to erase their very identities. One of the great exhibitors of Indian bodies, the celebrated photographer Edward Curtis, titled his magnum opus The North American Indian. However, a later anthology from this work is titled The Vanishing Race. This diminishment theory dates at least to Thomas Jefferson, who considered it a “humanitarian impulse in comments to a gathering of Native Americans at the end of his presidency: ‘We wish you to live in peace, to increase in numbers. . . . In time, you will be as we are; you will become one people with us; your blood will mix with ours.’”
Regrettably, Indians did not increase in numbers. The Vanishing Race isn’t just a romantic slogan; it represents a real phenomenon. Indeed, it was not until 1917 that “the Commissioner of Indian Affairs was finally able to declare that more Indians were being born than were dying.”
The genocidal project included more than outright murder, although that occurred at shameful rates, at places like Fallen Timbers, Washita, and Wounded Knee, as the United States began to bring the full weight of a world power upon largely defenseless Indian communities, divesting them of their lands and driving them into unfamiliar enclaves we today call “reservations.”
This was not enough. To effectuate Jefferson’s policy of complete assimilation, children had to be removed and taken to what, in Mao’s China, would be called re-education camps. In this country, we call them Indian boarding schools. In these terrible places, Indian children were shorn of their hair, forcibly converted to Christianity—often Catholicism—and murdered. “Their primary message sought to invalidate the totality of Indian life and replace it with Christian values.” This was not an aberrant feature but rather a central one: “Kill the Indian in him and save the man” was the mantra of R.H. Pratt, the founder and superintendent of the Carlisle Indian School, in a speech to the National Conference of Charities and Corrections in Denver in 1892. Pratt meant what he said. This was, in effect, the mission statement of the school, which was founded in 1879. The number of dead children is unknown.
The boarding schools operated well into the late twentieth century. There are Native people alive today who will not speak their languages because they were beaten for doing so in boarding school.
This removal of children had other dimensions, as well. Indian children are more likely to be removed from their homes in dependency proceedings than other children. This feature of Jefferson’s policy, so insidious, is still in effect today and is so deleterious, so serious, that Congress was compelled in response to it to enact the Indian Child Welfare Act. Nonetheless, twenty-first-century interviews with Cherokee officials document well-meaning but racist social workers who removed children from loving homes simply because a parent foraged for wild greens in the forest or dressed a deer on the front porch. This is not limited to Cherokees. “Generalizations by experts universalized ‘Indianness’ to the detriment of unique Indian values.”
This begs the question: If giving information about your people will result in the forcible removal of your children, would you be willing to go along with that?
The Attempted Elimination of Tribal Sovereignty
In Cherokee Nation v. Georgia and Worcester v. Georgia, the U.S. Supreme Court recognized Indian tribes as “dependent sovereign nations.” For two centuries, this status has frustrated those who wished to implement the Jeffersonian vison because it recognizes a retained Indigenous sovereignty. Nonetheless, actors, including individual states such as Georgia and, more recently, Oklahoma and even the federal government, have tried to extinguish tribal sovereignty. This business has generally taken two forms.
One theoretical approach to the affairs of the Native population in this country is for the government, whether state or federal, to advance the idea that the nation should simply get out of the Indian business. The justification goes like this: By continuing to recognize the sovereignty of these extra-constitutional entities, Congress is complicit in perpetuating Indian dependency, a state that requires taxpayer funds. To see how this works in practice, consider this: In its plenary authority over Indian affairs, Congress can simply say that an Indian tribe, for example, the Menominee, is simply no longer a tribe. Conversely, it can be said, for example, that the Narragansett are now a tribe. Thus, the various tribes are not in control of their residual sovereignty. Congress is.
So, too, is the Supreme Court. Often making rulings without any statutory or constitutional basis, but rather out of whole cloth, the Court has for two centuries cribbed and constrained Indian sovereignty. Native victories before the Court are not the norm. A simple explanation is found in the seminal case of Johnson v. M’Intosh, where the Court, in a moment of frankness not usually seen when the work before it is defenestration and certain niceties are typically applied to gussy up the harshness, referred to itself and the courts of the United States vis-à-vis the Indian tribes as “the courts of the conqueror.” Again, while most Americans are totally unaware of this, Native folk are acutely familiar with it.
To understand the current environment, we must look at today’s headlines. When the Supreme Court honored a treaty between the United States and the Creek Nation, thereby recognizing the boundaries of the Creek reservation in Oklahoma and divesting the state of jurisdiction, Governor Kevin Stitt, in what can only be described as a maladaptive response to his role in the dominant culture, considering his enrollment as a member of the Cherokee Nation, embarked on a multifaceted campaign to overturn and evade the Court’s holding. In South Dakota, the threatening rhetoric of Governor Kristi Noem and her attempts to expand state authority over tribal lands resulted in her banishment from the lands of every federally recognized tribe in the state.
It seems obvious—if the apparatus of the government or the state within which you exist as a sovereign is openly aligned against you, what incentive do you have to cooperate with it? Fortunately, times are changing.
New Opportunities for Collaboration as Equal Sovereigns
In the first instance, perpetrators of injustice must concede the truth and seek reconciliation. This is occurring. On October 24, 2024, the White House issued a Fact Sheet underlining the fact that “[t]he President also believes that to usher in the next era of the Federal-Tribal relationships, we need to fully acknowledge the harms of the past. That is why he is issuing a historic presidential apology for the Federal Indian Boarding School era.” The next day, the president traveled to the Gila River Indian Community in Arizona and delivered this “long overdue” apology in Indian Country. True to his word, he has reinstated the annual White House Tribal Nations Summit and the White House Council on Native American Affairs. These gestures matter.
Governor Stitt is a lame duck. Hope abounds that the new administration in Oklahoma City will be more results-oriented than conflict-oriented.
Meanwhile, on the ground, the tribal courts in Oklahoma have been busy, standing up their court systems to the point that Oklahoma has a prosecutor shortage, with many lawyers jumping ship to Indian Country, where the pay is higher. Early reports suggest collaboration will not be anathema to these attorneys.
And why not? In states as varied as Minnesota and California, state and tribal courts have come up with unique ways in which to partner together, none more intriguing than the joint jurisdictions courts, which seek to leverage the assets of both sovereigns to better serve the public. In places like New Mexico, Oregon, and North Carolina, states and tribes are actively working together to advance the cause of justice by including tribal court judges in state judicial training and conference opportunities and in giving full faith and credit to tribal judgments.
Finally, there is growing recognition that Native judges do not belong solely on tribal courts. “With only a handful of Native judges on state and federal benches, a strong pipeline to the judiciary is imperative,” argues Mary Smith, immediate past president of the American Bar Association (ABA) and a member of the Cherokee Nation. Growing the diversity of these benches will only help in data sharing. The ABA is leading on this issue.
Conclusion
According to the DOJ, “[t]ribal courts would like to collaborate with other jurisdictions but do not have the capacity to do so electronically or through integrated networks and case management databases.” The motivation to reach that capacity, to even bother to try, may not be solely financial but also subject to factors that are not obvious at first glance.
Sharing any data about your people is fraught with issues. These issues are not insurmountable. Trust among sovereigns is essential in any endeavor to improve traffic safety. Trust has to be earned. And it can be, but it requires an openness to other conceivable points of view and a willingness to engage those views nonjudgmentally.