It’s fun to pretend sometimes. Which is why this post should not be taken seriously as you would my other posts. I didn’t really do any research, I just pulled stuff off the top of my head without any real fact-checking because, you know, this was supposed to be a “fun” mental exercise.
Okay, so there’s this thing called the United Nations Declarations on the Rights of Indigenous Peoples that, depending upon whom you ask, is either a really great, symbolic step in the right direction; or just a useless piece of paper that won’t change anything in Indian Country. In reality, it’s probably a little bit of both. A cursory glance at the document essentially reveals a wish-list of how governments should view their indigenous inhabitants and how they should be treated. I like the Obama Administration for putting it in play, but it’s up to the federal and state government agencies, our tribes, and our judiciary to really make anything out of it. Recently, a UN expert (official title: Special Rapporteur on the rights of indigenous peoples) named James Anaya made an announcement about the nature of Native American relations in America, which was later construed to have said that the United States should give the Indians their land back. (See here, here, here and here.) Specifically, the Black Hills wherein sits Mt. Rushmore. Only this gesture will begin true healing between the United States and Indian tribes. Maybe, maybe not. But this is where my imagination takes flight, what if Anaya actually did say that? And what if it was just more than the Black Hills?
[EDIT: Of course, Anaya didn't actually say any of that. But like I said, this is a "pretend" exercise.]
Now, that’s interesting. The ENTIRE breadth of the United States, or just trust lands currently held by federally recognized tribes? For simplicity’s sake, I’ll go with the later. Given the convoluted state of Indian law in this country, turning the lands over to the Indians will make things a helluva lot complicated real fast. Check this out:
- As stated in other posts, the United States holds title to all Indian land as stated in the Marshall Trilogy cases. These cases, which declared Indian tribes to be “dependent domestic nations” whose survival was the United States’ responsibility, were construed from a shaky reading of the Indian Commerce Clause. If the United States ceded all federally held trust land to the Indians in fee simple, those Indians communities would then have private ownership of that land and would be free to do what they want with it, without any federal or state oversight. This is because the United States would have essentially overruled the Marshall Trilogy, turning these “dependent domestic nations” into “independent domestic nations.”
- This would suck for the hundreds of federally unrecognized tribes who are, and have been, trying to gain federal recognition status. The Office of Federal Acknowledgment, as an arm of the Bureau of Indian Affairs, is tasked with overseeing unrecognized tribes’ recognition efforts, and would see their mission of guiding tribes through the process turned upside down. Now, instead of determining which Indian tribes are eligible to receive federal recognition, the OFA will be considering which pieces of American soil will eventually be conceded to those tribes and converted into foreign soil. I don’t believe Congress’s delegation of its legislative powers included these duties in the OFA’s job description. In the meantime, the OFA would essentially have no purpose and would halt all further recognition efforts.
- It would also confuse things as to the Indian reservations that straddle State borders, such as the Navajo Nation. Can you imagine how mad New Mexico would be if it found out that the federal government gave away large portions of its own land (without its permission) and turned it into a pocket of international jurisdiction? You can almost see the “State’s Rights” people turning red. And what about tribes whose lands share borders between the United States and Mexico? Complications.
- Indian tribes will no longer be considered US soil. Anyone wishing to enter, exit, visit, traverse, work, live, conduct business, enter into contracts, get married, have children, or do any activity that requires crossing US/Tribal boundaries will require visas, passports, or some other system. Non-Indian employees working at casinos on tribal lands are now officially exempt from ALL federal wage and safety requirements, so good bye FMLA, OSHA, FLSA, etc. How will criminal jurisdiction pan out? If I rob a bank in Fresno and kill a bunch of people, then all I need to do is run for the nearest Indian rez. International soil! Of course, if there’s extradition agreements between the tribe and the United States, then I lose. There’s other complications too, like the application of the Major Crimes Act and Indian Country Crimes Act for when crime is committed on Indian Country. If you thought scam emails coming from Russia and Nigeria were annoying, then expect more from tribal lands. Can’t enforce American copyright laws on Indian Country when the movie studios and record companies discover file sharing websites being run from reservation servers. For Non-Indians committing crimes in Indian Country: expect arrest and trial according to tribal law; no 8th Amendment protection from cruel and unusual punishment, no 7th Amendment right to trial by jury, let alone a speedy trial or right to competent counsel under the 6th Amendment. So, be careful next time you get rowdy at an Indian Casino on tribal land. You no longer have Miranda rights. (But that blade cuts both ways: any hope of the disenrolled getting some due process under the US Constitution would be gone.)
- All federal and state Indian laws would effectively be repealed and inapplicable to Indian Country because the United States can’t legislate on non-US soil. However, Indians may still be considered American citizens under the Indian Citizenship Act…unless they revoke their citizenship. How the Indian Civil Rights Act, Indian Child Welfare Act, NAGPRA, Major Crimes Act, and portions of the National Environmental Protection Act and National Historic Preservation Act are going to be construed is now open for debate.
- All state and federal case law construing those statutes are probably going to be either abrogated or vastly changed in their application.
- Assuming Indians possess only tribal citizenship and not American, claims involving Indians will then fall under the Alien Tort Claims Act, allowing a federal district court to have subject matter jurisdiction over claims involving foreign citizens.