Friday, November 23, 2012 commemorated the fifth celebrated (but fourth annual) national Native American Heritage Day during the twenty-second celebrated National Native American Heritage Month (formerly National American Indian Heritage Month). The Bureau of Indian Affairs is touting the promising results of the “historic meeting” between the Hopi Nation, Navajo Nation, and Secretary of the Interior Ken Salazar regarding the Little Colorado River water dispute. The Obama Administration’s fourth annual White House Tribal Nations Conference is set for December 5, 2012. This meeting was scheduled as part of the ongoing “government-to-government” policy that began in 1994, was adopted by the Obama administration, and centered on prior consultation with tribes over matters that affect them.
At the same time, a recent New York Times editorial describes increasing occurrences of violent crimes across Indian Country as well as a decreasing capacity on the part of tribal law enforcement to effectively carry out their duties. The disparities in victim and offender statistics disaggregated by race are not mentioned. Though these types of reports are not new, this editorial neglects to mention that Native Americans are much more likely to be victims of such crimes committed predominantly by members of other groups. The impression given is that Indian Nations are all experiencing a similar problem that merely requires federal resources to successfully combat it.
The current U.N. Special Rapporteur on Tribal and Indigenous Rights, S. James Anaya, carried out the mandate’s first country visit to the United States. Not one member of Congress, the federal body with “plenary” power over Indians, met with the Special Rapporteur. The report describes the 2009 decision of the Supreme Court of the United States in Carcieri v. Salazar as “restrictively interpret[ing] the Indian Reorganization Act to prevent many tribes from extending their sovereignty over recovered or newly acquired lands.” One of the final conclusions of the report is that the United States must explore new ways “to advance toward reconciliation with Indigenous Peoples and address persistent deep-seeded problems related to historical wrongs, failed policies of the past and continuing systemic barriers to the full realization of Indigenous Peoples’ rights.” The issues of land rights, self-governance, and federal recognition were also highlighted in the report,
Carcieri dealt a significant blow to the ability of tribes whose federal recognition was formalized after 1934 to protect, maintain, and develop their land base. This past June, the Supreme Court decided Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, which effectively gave nonIndians the ability to challenge the internal affairs of federally recognized Indian nations. The National Congress of American Indians (NCAI) has noted this creates great “uncertainty surrounding development and strategic planning in Indian Country.”
The NCAI has therefore made the importance of Congress passing a “Carcieri Fix” statute to restore the benefits provided by the Indian Reorganization Act and to remove one of the main topics of the prepatory meetings to the sponsored by the NCAI and preceding the Tribal Nations Conference.
It is clear that the United States is committed to advancing the concerns of Tribal and Indigenous Rights under international human rights law. The corpus of federal Indian law demonstrates one of the longest and most developed historical commitments to addressing the serious moral, legal, and political issues that permeate the field, however plodding or oscillating its course may be. Though the United States continues to support the spirit of these initiatives, accountability remains elusive due in part to the lasting effects of the mythical heritage crafted to define Indian nations and individuals. The reasoning employed to reach the holding in the Patchak decision evidences this.
Eminent Indian law scholar Matthew L.M. Fletcher contends that Patchak demonstrates the lasting vitality of the imbalance created in law by the fictitious conception of Indians and nonIndians. Indians remain under a state of pupilage in preparation for their participation in nonIndian culture and society. This essentially permits the abuse of judicial process by nonIndians to maintain the legal fiction of guardianship over Indians and Indian Nations. Put another way, it would be unimaginable for a tribal lawsuit to be able to proceed, let alone prevail, against off-reservation private development.
The practice of national recognition and celebration of “Native American Heritage” should remember that heritage does not exist statically in the past but is something that will continue to grow and be shaped. Unfortunately, it is hard to imagine that the stranglehold Black Friday sales have on the American media and public at large on every Friday following Thanksgiving will relent enough to devote national attention to this very meaningful awareness day. Only one justice in Patchak appreciated the impact on Indian Country and the serious dangers presented by the majority’s holding. Justice Sonia Sotomayor wrote that the decision “not only creates perverse incentives for private litigants, but also exposes the Government’s ownership of land to costly and prolonged challenges.” This land of course includes land held in trust for tribes based on historical agreements and treaties, but it also includes other federally owned land such as national parks. Tribal economic development, among other things, will suffer as a result of this decision, fueling the factors that promote poverty, crime, and these erroneous conceptions of modern Indians in contemporary American law and society. The Supreme Court of the United States quietly decides a handful of cases every term that have far-reaching effects in Indian Country and upon factors influencing that are and will become a part of “Native American Heritage.” Awareness of and support for the issues to be discussed at the annual Tribal Nations Conferences deserve acknowledgment during this nationally designated day and month.