- · vol. 2 · no. 1 · October 2001

Eric Cheyfitz teaches English and federal Indian law at the University of Pennsylvania and is the author of The Poetics of Imperialism (New York, 1991).



"The 'trust' relationship between the tribes and the federal government is at best a double-edged sword."

Doctrines of Discovery
Eric Cheyfitz

Part I | II | III | IV

I. Introduction

In a speech given on September 8, 2000, at a ceremony on the 175th anniversary of the Bureau of Indian Affairs (BIA), Kevin Gover, a Commanche tribal member and outgoing head of the Bureau, issued "a formal apology to Indian people for the historical conduct of this agency," an agency whose first mission was the forced removal of the southeastern tribes from their homelands, along the notorious Trail of Tears. "Today I stand before you," Gover continued, "as the leader of an institution that in the past has committed acts so terrible that they infect, diminish, and destroy the lives of Indian peoples decades later, generations later."

The Bureau of Indian Affairs was established by President James Madison in 1824, as part of the Department of War. In 1832, Congress authorized the president to appoint a Commissioner of Indian Affairs, and, in 1834, enacted a bill to organize a Department of Indian Affairs. In 1849, the BIA was transferred to the newly created Interior Department. By the 1850s, overseeing Indian reservations had become its principal arena of activity.

In this context, the term colonialism has a precise meaning: the control by the federal government over what federal law terms "Indian country" (Title 18, U.S. Code, section 1151), which, in broadest terms, includes all federal reservation land; all "Indian allotments"; and all "dependent Indian communities," whether they are residing within a reservation or not. In Indian country, reservation land is land used by federally recognized tribes, but titled to the federal government, which thus has legal ownership of it, keeping the lands "in trust" for the tribes, of which there are 330 today in the lower forty-eight states.

The "trust" relationship between the tribes and the federal government is at best a double-edged sword. Ostensibly guaranteeing federal protection of Indian assets, it also casts Indians in the role of perpetual minors, a barely veiled version of the classic European stereotype of the childlike "savage." Indians, by definition legally incompetent to manage their own resources, find these resources placed in the hands of a federal bureaucracy, overseen by Congress, which has historically grossly mismanaged them. The BIA currently finds itself embroiled in an almost five-year-old class-action lawsuit filed by the Native American Rights Fund against the Bureau and the Department of the Interior for the mismanagement of an estimated ten billion dollars in Indian trust funds since the end of the nineteenth century. In February 1999, as reported in the Washington Post of August 17, 2000, Gover himself was held in contempt of court for not turning over records in this case, records he claimed "no longer existed."

As it functions, the trust relationship contradicts what for the last thirty years has been the stated federal policy of increased "self-determination" for Indian tribes. Yet the tribes, rightfully, resist any congressional attempts to dissolve this relationship (and only Congress has the constitutional power to do so) because all such attempts have only offered the dismemberment of the tribes as an alternative.

As distinct from reservation lands, allotted lands are lands, on or off reservation, which the federal government has granted to individual Indians. In this case, the government may retain title to the individual lands, which is most often the case, or the individual may hold title. Approximately eighty percent of the Indians lands to which the federal government holds title (approximately fifty-five million acres) are reservation lands.

It is clear enough under the law that any tribe occupying reservation land is considered a "dependent Indian community" in relation to the federal government. There are also tribes, like the Oklahoma Cherokees, numerically the largest tribe in the United States, that, while not occupying a reservation per se, still come under federal superintendence with title to their tribal lands held by the federal government, and are thus considered a "dependent Indian community." Ambiguities arise, however, in the case of Alaskan Native communities, which except in one case, do not occupy reservations or other kinds of "trust" lands but hold title to their lands as corporate entities under the Alaska Native Claims Settlement Act of 1971 (43 U.S.C.A, sec 1601-28), while still receiving federal benefits of various kinds because of their standing as Native Americans.

In 1998 in Alaska v. Native Village of Venetie Tribal Government, 118 S.Ct. 948, the Supreme Court tied the notion of "dependence" to the fact of lands held "in trust" by the federal government for Native Americans and thus ruled that the Alaskan village in question and by extension all such corporate entities were not in "Indian Country," while at the same time recognizing Congress's constitutional authority to modify the legal definition of "Indian country." At present, Indian country does not extend to include Native Hawaiians either, though they are a people historically colonized by the United States and are engaged in an ongoing struggle for their land rights.

In carrying out U.S. Indian policy today, the BIA has long counted on the collaboration of elected tribal councils, Western-styled governments first put into place under the auspices of the Indian Reorganization Act (IRA) of 1934. The decision whether or not to adopt IRA-sponsored constitutions was left up to the tribes. At the time, 181 tribes voted to adopt them and seventy-seven tribes voted to reject. Nevertheless, all the tribes needed a governmental mechanism (tribal council) in order to deal with the BIA for the resources it controlled under congressional mandate, which included, principally, tribal lands. Thus, whether or not a tribe drafted a constitution as the BIA requested, it had to comply in one way or another to BIA pressure to form representative governments. As they do today, these councils faced various forms of resistance from the grassroots of their communities. Thus, one often finds in Indian country a democratically elected tribal government that is at the same time opposed by or alienated from the grassroots population precisely because it is perceived as an arm of U.S. colonial power. But, it is important to emphasize, a tribal council may also oppose U.S. power in certain instances and so claim the support of its constituency on certain issues, particularly those dealing with land and sovereignty. These kinds of divisions within the tribes have a long history, which is a direct result of European colonial policies in the Americas.

Because of reforms instituted by the IRA, the BIA is now administered from top to bottom largely by Indians. But, in spite of Kevin Gover's optimism, the BIA continues to contribute to the general impoverishment of Indian people. Today the 1,698,483 tribally enrolled U.S. Indians (out of an approximate Native population of two million) are the poorest of the poor. The 1990 census reports a per capita income in Indian country of $4,478, compared to a national average of $14,420. According to BIA statistics, in 1999 unemployment among the labor force of the 556 federally recognized tribes (226 in Alaska) was forty-three percent, a one percent increase from 1997. Only nine percent of Native Americans twenty-five years and older have college degrees in comparison to thirteen percent of Latinos, fourteen percent of African Americans, and twenty-four percent of the total population.

In his September 2000 apology, Gover distinguished between the BIA "in the past" and the BIA now, "in this era of self-determination, when the Bureau of Indian Affairs is at long last serving as an advocate for Indian people in an atmosphere of mutual respect." But this all too clean separation overlooks, for example, the mismanagement of trust funds previously mentioned. Meanwhile, his neat distinction between the old and the new BIA also ignores the ongoing Navajo-Hopi Land Dispute in which, beginning in 1977, the Bureau has overseen the displacement of twelve to fourteen thousand Navajos from their homelands. Despite Grover's claims for "an atmosphere of mutual respect," the colonial structure of federal Indian law, which the BIA administers, dooms the Bureau to be a certain kind of classic colonial bureaucracy.

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