Attempt by Congress to Steal Native Sovereignty Unconstitutional

To the Editor of Indian Country Today Media Network:

On April 22, 2015, Chairman Rob Bishop (R-UT) declared at a hearing Subcommittee on Indian, Insular and Alaska Native Affairs of the House Natural Resources Committee that Congress was the only body with authority to Federally acknowledge Indian nations and tribes. On October 20, 2015, Natural Resources Committee Chairman Bishop declared that he will pursue HR 3764 to make that the law. With all due respect, HR 3764 is wrong on the law and history: the President of the United States, his Secretaries and Executive Branch officials have always had a leading role in treating with Indian nations and tribes.   

The Supreme Court acknowledges that Indian sovereignty “long pre-dates” the United States. From the first days of the American Republic, Indian nations and tribes were recognized diplomatically through treaty-making by the President, the Secretary of War, the Secretary of the Interior and U.S. treaty commissions.

Prior to the Constitution’s ratification, the United States entered into more Indian treaties than International treaties, the Constitution affirms the early treaties, and after the Constitution’s ratification, President George Washington established the protocol for future treaty-making with the ratification of the 1790 Creek Nation Treaty.

Through Indian treaties, the United States acknowledged Indian nations as sovereigns, with a right of self-government, and defined territory, reserved for our absolute and undisturbed use and occupation, which excluded non-Indians and the U.S. military. In the earliest legislation, the Northwest Ordinance of 1787 and 1791, the United States pledged that the “utmost good faith” would always be observed towards our native peoples, and that our liberty and property would never be invaded. In the 1803 Louisiana Purchase Treaty, the United States promised to abide by International treaties with Indian nations, until such time as the United States entered its own treaties with Indian nations based upon “mutual consent.” The Treaty with France clearly meant that the United States agreed that it would then adhere to the United States’s Indian treaties made through “mutal consent” with Indian nations.

In 1871, Congress ended treaty-making since the House of Representatives was left out of that law-making process. Our existing treaties were affirmed, and later Indian agreements were enacted by Congress as statutes. Yet, for many Indian nations that were swept aside by the rush of European immigration and colonial expansion, the United States often ignored their status as native communities and states dealt with Indian nations and tribes.

The Federally Recognized Tribe List Act of 1994, Public Law finds that Indian nations and tribes may presently be recognized by Act of Congress, Administrative procedures in Part 83 of the Code of Federal Regulations, or Federal court decision. Under this Act, the traditional means of Executive action in treating with Indian nations and tribes is available along with the possibility of congressional action.

For many years, Indian nations and tribes have complained that the Secretary of the Interior has relegated the Federal acknowledgement process to anthropologists who want to delve back into history at the dawn of the Republic, with no time limits for decision-making. Over the past two years, the Department of the Interior has sought to update the regulations, place a reasonable time frame on review, and provide for an Administrative Law Judge hearing before a final review by the Assistant Secretary for Indian Affairs. This is a reasonable process, which ends with a final agency decision subject to judicial review.

Kevin Washburn, Assistant Secretary for Indian Affairs, Department of the Interior explains that the final rule is intended to: “This new process remains rigorous, but it promotes timely decision-making through expedited processes and increases transparency by posting all publically available petition materials online so that stakeholders are well-informed at each stage of the process.”

Chairman Bishop rejects the Interior Regulations and introduced his bill HR 3764, entitled “the Federal Recognition Act of 2015.” HR 3764 posits that the Indian Commerce Clause is the only font of authority in the field of Indian affairs, and that the Secretary of the Interior must follow an exhaustive process to report on Federal Acknowledgment petitions and Congress must pass legislation to acknowledge each Indian tribe from this day forward.

Yet, Chairman Bishop’s bill is based upon a mistaken premise—there are many constitutional fonts of authority in the field of Indian affairs: in addition to the Commerce Clause, the Treaty-Making Power, the War Powers (including the power to make peace), the Property Clause, and the 14th Amendment are all recognized sources of Federal authority in the field of Indian affairs.

Moreover, since 1832, Congress has authorized the Executive Branch in the field of Indian affairs as follows under Title 25 United States Code Sec. 2:

The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations.

Similarly, the President has long been authorized as follows under 25 U.S.C. Sec. 9:

The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs.

In the Federally Recognized Indian Tribe List Act, Congress affirmed the Secretary’s authority over the Federal Acknowledgement Process, expressly recognizing 25 C.F.R. Part 83. HR 3764 misreads the Constitution, overturns longstanding historical precedent, increases the bureaucracy and legislative burden on Indian tribes and politicizes the Federal Acknowledgement Process. The bill is not well considered.

John Yellow Bird Steele is the president of the Oglala Sioux Tribe.

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Attempt by Congress to Steal Native Sovereignty Unconstitutional

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