This post is by no means a complete and comprehensive summary of what happened in Indian Country this year. However, I chose to blog about this because it appears that 2010 was a somewhat chaotic year. There were apparent gains (at least on paper), but there were certainly some losses.
For example, as Indian Country Today (“ICT”) reported, the 2nd Circuit Court of Appeals held in Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114 (2nd Cir. 2010), that “justified social expectations” over “settled land ownership” allowed local and state governments to keep over 250,000 acres of Oneida land illegally seized in violation of federal treaties. As ICT put it, Indian land is ok to be stolen “because it would be too inconvenient to those who are currently occupying and benefiting from the lands.”
Outside of the judicial branch, Indians might have some cause to celebrate, but, of course, I always remain skeptical about any beneficial intentions the United States has towards Native Americans. Native American history is fertile ground for developing a healthy sense of skepticism.
That being said, President Obama (albeit in 2009) noted Native American skepticism and pledged to strengthen support for Native America. In 2010, President Obama took steps to follow through on his pledge. In July 2010, the Tribal Law and Order Act (P.L. 111-211) was signed into law (for summaries and background on this Act, please see the Native American Rights Fund’s page). The Act seeks to reduce violent crime rates that occur in Indian Country, such as domestic violence and rape.
The President also signed legislation that solidified the Cobell settlement, ending one of the largest class action lawsuits in United States history. For those that don’t know, the Cobell litigation stemmed from Bureau of Indian Affairs mismanagement of Indian trust assets. Normally, I don’t like citing to Wikipedia; however, it gives a good summary of the case.
Lastly, President Obama stated that he was lending his support to the United Nations Declaration on the Rights of Indigenous Peoples. One scholar noted that the Declaration grants more power to indigenous peoples than those allowed by the United States Constitution and that, in addition to the non-binding nature of the Declaration, means that adopting the Declaration’s provisions are more for guidance, than mandatory law making. Another scholar opined that adopting the Declaration “is going to solidify, justify and legitimize its invasion and theft of [Native American] homeland[s].” Existing U.S. policy is not geared towards the best interests of Indian Country and the Declaration’s moral undertones will give the United States yet another justification to maintain an anti-Indian status quo, and perhaps deprive Indians of their rights even further.
One blogger picked up on this, noting that American policy has allowed gross violations of Indian civil rights committed by Indians against Indians to occur without means of redress because of tribal sovereign immunity.
(As a hilarious [and perhaps ironic] side note, the conservative Right declared and bemoaned with great fury and sadness that Obama was giving America back to Native American “overlords.” As Chris Rock once said, and I’m paraphrasing: “If [white people] are losing, then who’s winning? It ain’t us. I took a little drive around this [expletive] and it ain’t us.”)
In the end, 2010 seemed like a typical year for Native Americans. Injustices were either underreported or marginalized, and federal courts either denied to hear review of Indian claims or made less than satisfactory law when they did grant review. However, with Obama in the mix I’d have to say that things could certainly be worse. Adopting the UN Declaration may or may not pan out well for Indians, but it’s something. I’ll be honest, I don’t know exactly what adopting the Declaration will mean for Native Americans, but it’s something that previous presidential administrations probably wouldn’t have done. Settling Cobell was the right thing to do – that slow moving train wreck needed to come to a halt. Even if there are problems with it, it’s still a god starting point. Thus far, I wish Obama the best of luck in fulfilling his pledge to support Indian sovereignty however there are some serious problems that still need addressing.
For example, the federal tribal recognition process needs a SERIOUS overhaul. I mean, I would tear apart the Office of Federal Acknowledgment and rebuild it from the ground up. Or maybe just jettison the wretched thing into the administrative oblivion and come up with an entirely new plan.
Second, something needs to be done about tribal disenrollment. Right now. Like, yesterday, in fact. One of the things I’ve harped on is an Indian Civil Rights Act amendment to allow some form of dispute resolution for the disenrolled. Does anyone else have any better ideas?
Let’s hope 2011 is a better year for Native Americans!
Gale Courey Toensing, Federal courts devastate Indian land rights, treaties, Ind. Country Today (Dec. 31, 2010), available at http://www.indiancountrytoday.com/archive/Federal-courts-devastate-Indian-land-rights-treaties-112388154.html.
Barack Obama, President of the United States, Remarks by the President During the Opening of the Tribal Nations Conference (Nov. 5, 2009).
Lynn Rosenthal, The Tribal Law and Order Act of 2010: A Step Forward for Native Women, Council on Women and Girls (July 29, 2010, 5:13 PM), http://www.whitehouse.gov/blog/2010/07/29/tribal-law-and-order-act-2010-a-step-forward-native-women.
National Indian Law Library, Native American Rights Fund, Tribal Law and Order Act of 2010 (2010), http://www.narf.org/nill/resources/tloa.html.
Greg Guedel, Cobell Settlement Finally Becomes Law, Native American Legal Update (Dec. 10, 2010), http://www.nativelegalupdate.com/2010/12/articles/cobell-settlement-finally-becomes-law/.
Cobell v. Salazar, Wikipedia, http://en.wikipedia.org/wiki/Cobell_v._Salazar (last visited Jan. 2, 2011).
Barack Obama, President of the United States, Remarks by the President at the White House Tribal Nations Conference (Dec. 16, 2010), available at http://www.whitehouse.gov/the-press-office/2010/12/16/remarks-president-white-house-tribal-nations-conference.
United Nations Declaration on the Rights of Indigenous Peoples, United Nations (Sept. 13, 2007), http://www.un.org/esa/socdev/unpfii/en/drip.html.
U.S. to Support UN Declaration on the Rights of Indigenous Peoples, Constitutional Law Prof Blog (Dec. 17, 2010), http://lawprofessors.typepad.com/conlaw/2010/12/us-to-support-un-declaration-on-the-rights-of-indigenous-peoples.html.
Carol Berry, Rights Declaration may mislead, Ind. Country Today (Dec. 31, 2010), available at http://www.indiancountrytoday.com/archive/Rights-Declaration-may-mislead-112665409.html.
President Obama Announces Endorsement of UN Declaration; Will POTUS address issues of Human Rights Abuses in INDIAN COUNTRY?, Original Pechanga (Dec. 18, 2010, 10:51 AM), http://www.originalpechanga.com/2010/12/president-obama-announces-endorsement.html.
Rob Schmidt, Liberals mock UN declaration scare, Newspaper Rock (Dec. 30, 2010, 2:22 PM), http://newspaperrock.bluecorncomics.com/2010/12/liberals-mock-un-declaration-scare.html.