Many federal laws governing American Indians are inherently racist, and that racism is perpetuated nearly every day by the judicial branch, according to tribal attorney Andy Huff.
Huff, speaking to participants at last week’s Montana Conference on Race at Helena’s Carroll College, said the foundations of modern-day Indian law were built on the belief that native peoples were inferior to Europeans, and that they couldn’t manage their own affairs. With some notable exceptions, he said, that belief largely continues to this day.
More than 200 activists, educators, tribal leaders, and state and federal employees attended the two-day conference. Unlike other similar gatherings, participants were not just told what racism is, but were asked to reveal their own prejudices and develop action plans to deal with them. Problems in each person’s broader community were identified and targeted as well.
Huff, a staff attorney with the Helena-based Indian Law Resource Center and a member of Montana’s Cree Tribe, traced the evolution of Indian policy from its colonial roots to today’s often-conflicting quagmire of tribal case law.
When Europeans first “discovered” America, they established the so-called Doctrine of Discovery, he said. The doctrine spelled out the rights of newcomers to take over huge tracts of land that for generations had been controlled by indigenous peoples. This racist practice was further legitimized through the federal policy of Manifest Destiny. Indian people still lost their land under the revised doctrine, but they retained certain legal rights, as well as reservations.
The federal paternalistic tradition is still being upheld in many modern-day legal decisions, Huff said, noting that in 29 Indian law rulings by the U.S. Supreme Court in the past decade, only six were decided in favor of tribes.
“It’s a scary, tenuous existence,” he said, adding that as more power is stripped away from tribes, it is harder to operate as even a quasi-sovereign government. To work effectively, he said, tribal governments must be able to enact and enforce regulations and control over the extraction of natural resources and who’s doing the work.
Making matters worse, Congress can still legally terminate a tribe or take away its lands at any time without compensation, and treaties can be unilaterally terminated by lawmakers without any recourse, he said. Battles are still raging over Indian religious rights, which conflict with industries removing natural resources from public lands. The conflicts often puts agencies like the U.S. Forest Service and the Bureau of Land Management at odds with tribes.
At the end of the 19th century, U.S. tribes still held about 140 million acres of land. Today that figure stands at about 20 million acres. But tribes still don’t have complete control over their land, in part because the federal government set up a trust system in the late 1800s to manage reservation mining, timber cutting, grazing and oil and gas extraction.
The shambles of the federal trust system for individual Indian account owners was exposed through a class action lawsuit filed in 1996 by the Native American Rights Fund and Blackfeet banker Elouise Cobell, who also spoke at the conference.
Cobell said that as a child she heard stories about other tribal members not being adequately compensated for development of their lands. When she became treasurer of the Blackfeet Tribe, she began asking questions when trust-fund accounting sheets didn’t add up. When her questions weren’t answered, she went to higher levels and asked again.
“I basically knocked on every single door in Washington, D.C.,” Cobell said. When she finally got a personal meeting set up with then-U.S. Attorney General Janet Reno, she thought she’d get to the bottom of things. But when she showed up for the meeting, Cobell said, the only people there were federal attorneys who pooh-poohed the idea of reforming the trust system.
“I told them they should be ashamed,” Cobell recalled. “I told them people are dying every single day in Indian Country because they’re not getting their resources.”
Soon after, Cobell and others raised millions of dollars from private funders to get the case started. She thought the matter would be settled three years or less. Instead, she said, the government dug in, lied, withheld and destroyed documents, and spent $614 million on a new computer tracking system that still doesn’t work.
Cobell said 60 percent to 75 percent of individual Indian leases aren’t even recorded in the government books, meaning that billions in revenues that were supposed to go to tribal members are not accounted for. The lawsuit is geared toward fixing the broken system and getting the money back.
“This is money that’s tied to human beings,” she said. “It’s not Indians in the trough. It’s the big oil and timber companies that are at the trough.”
The trust fund case, she added, has more government lawyers fighting against individual Indians than were employed in the entire federal anti-trust case against Microsoft.
“You’re one person,” she told participants. “I’m one person. But look what I’ve been able to do. We can challenge racism in this country.”
Michael McCormick, who works with the Connecticut-based Study Circles Resource Center, told participants that confronting prejudice and resolving racism requires “listening with a beginner’s mind.”
“Wisdom resides in every sector of our community,” McCormick said. “We don’t need experts to solve our problems. We need each other.” #