Facing an unfriendly congress
The current U.S. Congress, through recent bills and amendments, is attempting to erode tribal sovereignty and the relationship that exists between the United States government and Indian tribes. Proposed legislation has targeted gaming, funding for housing and health care, and the Indian Child Welfare Act (ICWA).
Part of the hostility of the U.S. Congress is due to representatives' lack of education on Indian issues. The legal and historical realities of American Indian issues are missing from most public schools, and without a clear understanding of sovereignty and federal trust responsibility.
The session was presented by Tadd Johnson (Boise Forte), an attorney with offices in St. Paul and Washington D.C. He is a former tribal attorney and prosecuting judge. Johnson served on the Interior & Insular Affairs Council, which later became known as the Council on Indian Affairs in conjunction with the 103rd Congress.
Johnson stressed that in order to combat the changes that are taking place, it is imperative that people become involved in the decision making process including voting, meeting with constituents, writing letters and educating others, especially those in decisions making positions. It seems that there is a great misunderstanding of what sovereignty means. It is a government to government relationship and it is the backbone for what Indian people are all about, Johnson said.
There is a need for Indian people to act together because the policy and legislation established by Congress affects every tribe in relatively the same manner.
Budget cuts to federal programs have resulted in severe cuts to American Indian programs in housing, health care, education and the Bureau of Indian Affairs. While at the same time, Congress has considered proposals to allow taxation of casinos, whose profits would normally go back into community and reservation infrastructure programs.
Gaming issues may resurface in the next legislative session in light of the recent Seminole Supreme Court decision. Under the Indian Gaming Regulatory Act (IGRA), tribes must negotiate with state governments in order to set up casino gambling. However, if states do not negotiate in good faith, tribes can sue them. In this decision, the Supreme Court ruled that tribes cannot force the states to negotiate because the states have sovereign immunity through the Eleventh Amendment to the Constitution.
The difficult part about this decision is that many believe that the entire IGRA is itself unconstitutional because under the U.S. Constitution. The Indian Commerce Clause, found in Article 1, section 8, clause 3, states that "Congress has the power to regulate between the states, foreign nations and Indian Tribes." Congress may try to sort these to issues out in the next legislative session, but the impact could potentially affect tribes that do not have casinos because the issue at stake is the government-to-government relationship tribes have with the United States. Some tribes, such as the Navaho, have voted not to participate in gaming.
There have been several proposals to amend the Indian Child Welfare Act (ICWA). ICWA was passed in 1978 to prevent the unwarranted removal of Indian children from their homes. From the 1950s through the 1970s, thousands of Indian children were taken, often illegally, from their families and placed for adoption with white families.
In passing the act, Congress declared that it fell under federal trust responsibility ".to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and placement of such children in foster homes. which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs."
One proposal would have affected a key provision of ICWA. Under ICWA, when an Indian child is removed from his or her home, foster home and adoption placement preference must be given to that child's extended family or to an Indian home or institution. House Resolution (HR) 3286, the Adoption Promotion and Stability Act of 1996, in easing multi-ethnic adoptions would have prevented matching children to adoptive families by racial or ethnic background. This would take the teeth out of ICWA.
A second proposal to ICWA would have allowed states to determine who qualifies as an Indian. Currently tribes have jurisdiction over child placement and enrollment. This particular amendment worries many because some state court rulings have indicated that even though a person may be an enrolled citizen of a tribe, the court might find that they are "not Indian enough" to qualify for ICWA.
HR3286 passed the House 393-15, but failed in the Senate.
A reorganization of the Bureau of Indian Affairs is also progressing through the Senate as S814. The final provisions of this bill will have a significant impact across Indian Country.
One other major congressional move has the potential for changing Indian policy: block granting. The idea of block grants is to take all the money that would be distributed within a state through federal programs and give it to the state government to divide up as it chooses. If federal dollars earmarked for Indian tribes were included in block grants to states, it would weaken tribal sovereignty and the government-to-government relationship that tribes have with the federal government. States would then have the power to deal with Indian tribes that the U.S. Constitution originally gave only to Congress in the Commerce Clause. However, block granting might be advantageous to tribes if they were given their own grants. A similar situation exists for tribes participating in self-determination programs.
With Congress in an unfriendly mood and the U.S. Supreme Court moving away from the fundamental principals set forth during the Marshall Trilogy era, Indians need to look for allies in new places.
In the discussion session, one interesting approach to finding funding was suggested. The Appropriations Committee sets the limit of what to spend, but doesn't define where the money comes from. Indians could specify different funding sources such as, "We want the $100,000 from the air base you shut down."
Small group discussion revolved around how Indians could become more informed and more effective in the political process. Information on current House and Senate activities can be obtained from:
National Congress of American Indians
National Indian Policy Center
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