Sovereignty and Land Rights of Indigenous Peoples in the United States [1st ed.] 9781137593993, 9781137594006

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Sovereignty and Land Rights of Indigenous Peoples in the United States [1st ed.]
 9781137593993, 9781137594006

Table of contents :
Front Matter ....Pages i-ix
Introduction (Wayne Edwards)....Pages 1-10
A Very Brief History of the Relationship Between Indigenous Peoples and the US Government (Wayne Edwards)....Pages 11-34
Sovereignty (Wayne Edwards)....Pages 35-70
Economic Outcomes of People (Wayne Edwards)....Pages 71-90
The Value and Use of Land (Wayne Edwards)....Pages 91-109
The Future of Indigenous Sovereignty and the Paths for Native Development in the United States (Wayne Edwards)....Pages 111-131
Conclusion (Wayne Edwards)....Pages 133-149
Back Matter ....Pages 151-204

Citation preview

Wayne Edwards

Sovereignty and Land Rights of Indigenous Peoples in the United States

Sovereignty and Land Rights of Indigenous Peoples in the United States

Wayne Edwards

Sovereignty and Land Rights of Indigenous Peoples in the United States

Wayne Edwards Economics Saint Michael’s College Colchester, VT, USA

ISBN 978-1-137-59399-3    ISBN 978-1-137-59400-6 (eBook) https://doi.org/10.1057/978-1-137-59400-6 © The Editor(s) (if applicable) and The Author(s) 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature America, Inc. The registered company address is: 1 New York Plaza, New York, NY 10004, U.S.A.

Preface: A Note on Terminology

When referring to native peoples with whom the US government has had land agreements (or disagreements), standard terms and definitions used in the literature and by federal authorities are employed. The term “American Indian” refers to native peoples in the contiguous United States, while the general term “native” will refer to any indigenous group or individual considered, including American Indians, Alaska Natives (Native Alaskans), and Native Hawaiians. The Census Bureau considers “a person having origins in any of the original peoples of North and South America (including Central America) … who maintains tribal affiliation or community attachment”1 to belong to the American Indian and Alaska Native (AIAN) category. While the AIAN category appears to be treated as a homogeneous group by the Census Bureau due to the aggregation, it must be noted that in fact the AIAN category encompasses hundreds of tribes, vast geographical space, and many language groups. In terms of land claims, there are stark differences between the settlements with people in Alaska and those in the Lower 48, so they are treated as separate groups here. For indigenous people with ancestral roots in the Hawaiian Islands, the major census category is Native Hawaiian and Other Pacific Islander (NHOPI). Because of the geographic isolation of the Hawaiian Islands from the rest of the United States, there is less confusion about membership in this group. Although separate bands and subgroups of

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people certainly do exist among Native Hawaiians, their treatment with respect to land rights and the US federal government has been, for the most part, homogeneous. Colchester, VT, USA

Wayne Edwards

Notes 1. Norris, Vines, and Hoeffel, “The American Indian and Alaska Native Population: 2012.”

Contents

1 Introduction  1 2 A Very Brief History of the Relationship Between Indigenous Peoples and the US Government 11 3 Sovereignty 35 4 Economic Outcomes of People 71 5 The Value and Use of Land 91 6 The Future of Indigenous Sovereignty and the Paths for Native Development in the United States111 7 Conclusion133

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Contents

 fterword: New Threats for Indigenous People in the A United States151 Appendix159 Bibliography189 Index201

List of Tables

Table 4.1 Table 4.2 Table A.1 Table A.2 Table A.3

2012 Disproportionality index of child welfare, AIAN 81 Poverty rates before and after the 2007–2009 recession, individuals82 Official Websites of American Indian Tribes 162 Alaska Regional Corporations Websites 180 Alaska Village Corporations Websites 180

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CHAPTER 1

Introduction

The history of the relationship between indigenous peoples and the United States government is one primarily of conflict. At independence, the United States was a coalition of thirteen separate places bound together by some common ideals and an agreement for limited collective governance. One important aggregate action the new country adopted was the requirement that the formation and continuation of any political or trade relationship with an external government could not be made separately by individual states. Instead, each state was required to be “in congress assembled” with other members of the new union.1 At the time, other governments included the leadership of Indian Nations, the political face of indigenous tribes. The nature of this relationship and the political respect it implied arose from habits inherited by the new politicians in the United States from their former Crown rulers who had interacted with many native peoples as political collectives. The federal government maintained this carried-over posture for less than a decade. While Indian Nations are referred to in the Articles of Confederation as foreign countries, by the time the Treaty of Paris was negotiated into finality (1783), indigenous people in the United States were not mentioned at all. It was as if they had disappeared. Native Americans re-entered the political mind of the United States very quickly, and when they did they had taken on a different form. While many of the relationships had not been very good between indigenous peoples and the Colonies (and, subsequently, the US government), the © The Author(s) 2020 W. Edwards, Sovereignty and Land Rights of Indigenous Peoples in the United States, https://doi.org/10.1057/978-1-137-59400-6_1

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rapid westward expansion of the new country accelerated the policies of “Indian Removal” and the creation of reservation space—ever-shrinking reservation space. The land was needed for white settlers heading west in search of wealth and a better life than the one they left behind in the congesting east. In the competition for land that ensued, white migrants had the full force of an increasingly powerful US government at their backs while Indian Nations saw their political and military power dwindle into nothingness as they were overwhelmed by the unstoppable tide of new American progress. Many Indians fought against the changes that beset them, but there was no real chance of turning back the rushing tide. Their choices were to stand aside or face oblivion. Indigenous people lost much in their early interactions with the Europeans who began arriving in force on the eastern shores of North America in the seventeenth century. At the most aggregated and collective level, the people lost the freedom to live where they wanted to live in the way they wanted to live. They lost their sovereign space. They lost their land. This book seeks to describe how different groups of indigenous peoples who have come in conflict with the US government since its inception have fared in their attempts to maintain (or regain) their sovereignty and their land. The groups considered are American Indians (indigenous peoples who traditionally and historically inhabited the contiguous 48 states), Alaska Natives, and Native Hawaiians. While all three of these groups have in common occupancy of geographic space prior to their interactions with outsiders, they have all experienced widely divergent outcomes resulting from their treatment by the US government. The focus of this writing is comparison, in an effort to understand the separate and unique contemporary realities these three groups of people experience today.

1   The Importance of Land No serious discussion of indigenous people can omit issues related to the collective ownership of land. This is because land is one of the most important, valuable, and versatile assets available to any group. The ability of an indigenous tribe to own and control land enhances its opportunity for economic growth and wealth acquisition in a variety of ways, including through resource extraction, agricultural production, and as use for collateral to finance economic projects. Land also provides a physical place for people to exist momentarily and over time, the latter affording the

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opportunity for the development of cultural identity and the accumulation of a people’s history. The value of land, therefore, can be evaluated in many ways and its market value represents only a portion of its meaning to the people who inhabit it. The full value of land, then, is a difficult figure to calculate in any nominal sense. Depending on the land and the people in question, the value of the land could easily be infinite. In the history of Native Americans, Native Alaskans, Native Hawaiians, and, indeed, all indigenous peoples worldwide, the issue of land is central. Colonial powers usurped land everywhere they went, consequently displacing the people who were already there. Why did the invaders want the land? For plunder, certainly—to confiscate and otherwise extract the valuable resources that the land could provide. In many cases, they also wanted the land for themselves as a place to inhabit, to further stretch their empires, and to provide an additional space for their own citizens to branch out, accumulating wealth for both those individuals and the Crown. The accounts and evidence of this practice appear throughout the world, perhaps most noticeably from the European colonial period, but also throughout all of known history on every continent. Land, then, on the basis of the observed ceaseless voyages of conquest humans from all over the globe have repeatedly engaged in, has a universally recognized value. Land is desirable and is therefore worth protecting, and, to many nations and people, worth fighting for. The legal conception of land ownership is one of property rights. The modern Western legal definition of “property rights” is a bundle of rights, which can include different rights in different situations. For example: From a legal viewpoint, property is a bundle of rights. These rights describe what people may and may not do with the resources they own: the extent to which they may possess, use, develop, improve, transform, consume, deplete, destroy, sell, donate, bequeath, transfer, mortgage, lease, loan, or exclude others from the property.2

The above example describes the private ownership of land, which is not the same as sovereign control over land. Unrestricted sovereign control over land would certainly embrace all the rights listed above in their absolute forms, but partial sovereignty and private ownership do not. For example, private ownership may or may not convey rights to exploit subsurface resources. If the right to remove oil and precious metals, say, were not rights included in the ownership of land then the market value of the

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land would be greatly diminished. More generally, sovereign control in its broadest form allows for the creation of laws, including taxation, that govern the use of the land, while private ownership requires the owner to comply with existing laws created by the sovereign. It is important to observe that ownership and sovereignty imply different bundles of rights, and that under either circumstance, an outside entity that is powerful enough can place restrictions on the land by changing the content of these bundles of rights. In this book, the concept of land and ownership is taken at an aggregated level, as a starting point, and the analysis focuses on land rights (rights of land use) and ownership of land by political entities rather than individuals. In particular, this research compares the legislative, judicial, and treaty outcomes of the US government’s acquisition and dispensation of land in North America and Hawai‘i with respect to the people who lived on the land prior to the arrival of Europeans. Because land is such a fundamental asset, differences in land rights settlements among these groups have contributed to differences in observed economic outcomes, both in the past and contemporaneously. At an aggregated level, group differences can be seen in poverty rates and other statistical measures, although there is considerable variation within each group. As hinted earlier, significant corollary issues are sovereignty and the opportunity for self-determination. These concepts relate to land rights in the sense that, if the US government is dealing with sovereign entities, the rights transferred through land ownership are different than those transferred to individuals (or non-sovereign institutions). In addition, in many cases the rights transferred through land ownership (or at least occupancy) have been inhibited by the “trust relationship” the US government has declared over recognized indigenous people. Cooter and Ulen’s (2008) description of rights to property (including land) quoted above is useful because these acts of acquiring and/or transferring land in the past often included restrictions on its use and title, and therefore on its market value.

2   The Value of Sovereignty The word sovereignty can be defined in many different ways. Taiaiake Alfred defines political sovereignty as, “supreme political authority, independent and unlimited by any other power.”3 Alfred goes on to say, “Discussions of the term sovereignty in relation to indigenous peoples, however, must be framed differently, within an intellectual framework of

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internal colonization. Internal colonization is the historical process and political reality defined in the structures and techniques of government that consolidate the domination of indigenous peoples by a foreign yet sovereign settler state.”4 Both conceptions of sovereignty are relevant here because it is the United States that carries the former version and indigenous peoples within the United States who carry the latter (if at all). A more practical way to think about political sovereignty is as a continuum. For the federal government in the United States, sovereignty exists in its most powerful form. States within the United States have a degree of sovereignty themselves, but they have fewer powers than the federal government. Likewise, the level of sovereignty that Indian tribes possess is a form that is less-than the federal level and similar, though different, to that of states. It is an absolute necessity for a political entity to have some level of sovereignty in order to engage in any real form of self-determination—if one is not making decisions for oneself, then someone else is making decisions for you. While “supreme political authority is not necessary for a degree of self-determination, certainly the ability to make at least some choices that are culturally relevant to the group must be present. The official position of the US federal government with respect to Indian tribes is that it is a special relationship that has most often been called the government-­to-government relationship. It is through this relationship that the Bureau of Indian Affairs has a duty to consult with tribal governments.”5 In fact, the United States has gone so far as to develop principles for consultation with Indian tribes, of which numbers 2 and 3 are particularly instructive: 2. The United States recognizes the ongoing right of Indian tribes to self-­ government and supports tribal sovereignty and self-determination and continues to work with Indian tribes on a government-to-government basis concerning Indian tribal self-government, trust resources, and Indian tribal treaty and other rights. 3. Federal actions shall be guided by respect for Indian tribal self-­ government and sovereignty, for tribal treaty rights, and for responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.6

These principles seem to imply a robust encouragement by the US government of tribal governments’ self-determination efforts, fostered by a

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level of sovereignty, even in light of the “trust responsibilities” federal authorities seek to honor. In the end, however, actions are more important than sentiments. What then is the value of sovereignty? In the context of indigenous peoples in the United States, it is the difference between being able to choose a tribe’s path into the future by holding sovereignty or being put on a path by an external force in sovereignty’s absence. Even if the different states of nature that exist with and without sovereignty are clear, what is the value of it? Placing a dollar value, or a market value, on sovereignty is an unreasonable standard. It is not a product than can be bought or sold. What other ways, then, are there to value sovereignty? Perhaps it is easier to think of it terms of the cost of acquiring and holding onto sovereignty rather than a hard dollar value as an asset. Economists often say that the true cost of anything is what one has to give up in order to possess it—the opportunity cost. What is the opportunity cost of sovereignty? This is a question that is considered in detail in Chap. 3. For now, let us think of the question in broad strokes. Assuming a tribe is already a recognized tribe with tribal land that constitutes a sovereign space (as opposed to a tribe seeking federal recognition), the costs accrue mainly through the political separation from the broader economy. For example, many authors have noted that it is sometimes difficult to enforce contracts between tribal members and non-tribal members in Indian Country because of jurisdictional questions. If there is a dispute, how is it to be remedied? The uncertainty surrounding business dealings leaves economic development constrained, sometimes to the point of inactivity. If development occurred on private land outside Indian Country, these obstacles would not exist in the same way. Sovereignty requires the maintenance of a political and legal distance (and sometimes a commercial and economic distance) between the sovereign entity and the outside world. The distance can be costly if it creates uncertainty and renders unworkable commercial arrangements that would otherwise have been taken up in other political environments. In addition to costs, there are also benefits to having an elevated political status. For example, a tribe in Indian Country can engage in types of commerce that are illegal in the state(s) that surrounds it, like Class III gambling or marijuana cultivation (both of these examples are discussed in greater detail later in the book). Revenues from these sorts of enterprises, especially if they are prohibited in the surrounding area and therefore are bolstered by an absence of outside competition, can be substantial. The

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calculation for the value of sovereignty can be approached relatively easily when only measurable factors are considered. If the (opportunity) costs overwhelm the benefits, then holding onto the status would not seem to make much sense and the value of sovereignty would be negative. An alternate way to think of the issue is that if a tribe holds on to its sovereign status in the face of higher measurable negative outcomes than measureable positive ones, then the unmeasured value of sovereignty must be at least as high as the difference between the measured costs and benefits. Unmeasurable factors include things like the value of the preservation of culture and language, the maintenance of ancestral space, and reverence for the people who have lived in the place throughout history, as well as those how inhabit it now.

3   The Question of Development When the question of economic development is considered in Indian Country or elsewhere, it is of paramount importance to know what the goal or goals are: the development of what? Further, it is not a question of the specific project to be implemented—a new road or a water treatment plant or a hospital or a restaurant. Rather, it is a question of the goal over all. What are the developers trying to achieve? Vague general statements that the intention is to make tribal members better off than they are now do not get us very far. We are left to wonder, better off in what way? A higher average income? A lower overall poverty rate? Better health outcomes? There are many ways to measure economic advancement or well-­ being improvements, each with its positive and negative sides, and none objective. The goal needs to be both specific and encompassing. Only after we have a clear goal in mind can we move on to strategies to achieve the goal. Equally as important as any well-thought-out goal is the question of binding constraints on development. Are there some things that must not be done? Are there some things that must be preserved even at the cost of additional economic development? Any economic development project might generate externalities, but are there additional considerations besides the usual ones such as pollution? On Indian reservations, one should be particularly mindful of the impact on culture an economic development project will have. For example, the International Union for the Conservation of Nature (IUCN) released a statement in September 2016 from its World Conservation Congress regarding sacred lands. It

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read, in part, “Sacred lands enable the next generations to connect, identify with and carry on our ancestral cultures, traditions, ceremonies and spirituality.”7 The sacred lands themselves, then, must always be present for the culture to survive. As a result, sacred places cannot be commercially developed, and this cultural requirement creates a binding constraint on economic development in some places. Even in the absence of cultural considerations or sovereign advantages and disadvantages, an economic development project undertaken by a tribe is a collective action, affecting all of its members who, being human, form a diverse group. For example, the decision to sell a timber lease might be a more divisive issue for one tribe than it is for another. For some tribes, casino operations are an acceptable commercial avenue for generating revenue and for other tribes they are not. Even infrastructure development—the laying down of roads and the provisioning of electricity in remote places, as examples—might raise objections from some members of a tribe because of the impact on traditional lifestyles these changes could bring. All of the concerns tribal members have that result in slowing down economic development are legitimate concerns that must be given serious attention, but so are the aspirations of tribal members who hope that a development project might provide economic opportunities for themselves and their children. How a balance is achieved between conflicting ideals of members of the same tribe must be determined by each group. In the ultimate resolution, it is critically important that the loudest voices are Native voices. External advisors can provide useful expertise and practical advice on options that are available to a tribe, but it is the members themselves who must decide which paths to take up if the end result is to be satisfactory to the group, within the binding constraints that have been established, and sustainable into the future. Taken together, the three issues of land, sovereignty, and economic development can constitute central aspects of concern of indigenous peoples, as long as it is also recognized that the culture of the people in question is inextricably woven in as well. While it is true that the way of life the ancestors of present-day indigenous people lead was taken away by colonizers long ago, the necessity of the return (and maintenance) of the land, the respect of sovereignty, and the obligation of assistance in economic development stem not only from a sense of reparation and an attempt to address the past wrongs, but, more importantly, cultural preservation. It is just this undeniable importance of culture that leaves economists, for the most part, out of a deep and full analysis of Native American,

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Native Alaskan, and Native Hawaiian issues. Standard economic models provide precise answers to only very narrow questions, and they rely on the ability to value in dollars everything being considered. As I have already made clear, and as I will reinforce in the coming pages, not only can a dollar value not be placed on parts of the analysis required here, it cannot be placed on some of the most important parts. As a result, standard economic models will not fit the issues addressed very well. A standard model of profit maximization, as a specific example, does not take non-market cultural value into account—it only counts nominal revenues and costs when evaluating business decisions. In this writing I will compare the states of the three aggregated groups of people by recounting some elements of the journey of each group with respect to the federal government. Because I think it is most important to affect individuals, I will employ examples of demographic information at the most local level possible to try and evaluate how persons’ lives are impacted by past political decisions and how they might be affected by future courses. The metric should be the concept of making certain each person’s plight the ultimate focus. Data, however, can only be discussed in an aggregated expression, making inference to individuals unfortunately quite limited. In the end, the most important ideal to preserve is self-determination. The people themselves should be able to decide their own fate. How this is best accomplished is the difficult question to answer. It might even be impos sible to formulate a public policy that addresses adequately individual concerns because policy is necessarily an aggregated instrument. And yet, something must be done—inaction is the worst position to take because it leaves decisions to external forces that are constantly acting on tribes and tribal members. In this book I will present information, discuss relevant issues, and suggest possible alternatives. In general, the more decision-making power that accrues to tribes and tribal members, the better.

Notes 1. Articles of Confederation (1777). 2. Cooter and Ulen (2008), p. 77. 3. Barker (2005), p. 33. 4. Ibid. 5. Bureau of Indian Affairs (2000). 6. Ibid. 7. International Union for the Conservation of Nature (2016).

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Bibliography Articles of Confederation. 1777. US Constitution Online.http://www.usconstitution.net/articles.html. Accessed 18 Jan 2017. Barker, Joanne, ed. 2005. Sovereignty Matters: Locations of Contestations and Possibility in Indigenous Struggles for Self-Determination. Lincoln: University of Nebraska Press. Bureau of Indian Affairs. 2000. http://www.bia.gov/cs/groups/public/documents/text/idc-002000.pdf Cooter, Robert, and Thomas Ulen. 2008. Law and Economics. 5th ed. Boston: Pearson/Addison-Wesley. International Union for the Conservation of Nature. 2016. World Conservation Congress, Motion 26. https://portals.iucn.org/congress/motion/026. Accessed 3 Jan 2017.

CHAPTER 2

A Very Brief History of the Relationship Between Indigenous Peoples and the US Government

Many excellent books have been written about the history of the relationship between indigenous peoples in the United States and the federal government. The definitive work on this subject with respect to American Indians is Francis Paul Prucha’s The Great Father,1 which is a nearly exhaustive survey of the treaties, laws, and relevant events from the colonial period through 1980. There are also many other fine books addressing specific and general aspects of this history, as well as similar surveys for Alaska Natives and Native Hawaiians (see the Suggested Reading section). As such, and despite its critical importance, there is not enough space to recount here in detail this complex history. Therefore, a brief outline of the major events follows to give readers unfamiliar with this history a general context. Discussing the history in an aggregated way necessarily diminishes the subtlety and complexity of the issues. The aggregated approach is taken to demonstrate the fundamental differences in levels of sovereignty and the extent of land rights across the three principal groups under consideration. To approach the topic at a lower level of aggregation would be an extremely interesting and valuable undertaking but could not be contained in the present volume. The three groups encountered the federal government

Parts of this chapter draw from Edwards 2015, some passages being taken directly from this earlier work. © The Author(s) 2020 W. Edwards, Sovereignty and Land Rights of Indigenous Peoples in the United States, https://doi.org/10.1057/978-1-137-59400-6_2

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initially at different times in the history of the United States and under different circumstances, which perhaps goes a long way toward explaining the disparate settlements reached. Existing agreements today sometimes manifest, in part, as paternal trust arrangements, sometimes appear to be reparations for previous and/or contemporaneous wrongs and takings, and sometimes result in the outright denial of cultural legitimacy. Although the three groups of people examined—American Indians, Native Alaskans, and Native Hawaiians—all have in common the fundamental loss of ancestral lands to the US government, the attention and compensation each has received are widely divergent. American Indians have received some reservation land carrying partial sovereignty which allows for limited self-­ determination. The distribution of land to tribes and bands is not homogeneous and the uses and economic returns to the land vary considerably, generating measurably different outcomes for American Indian groups. Land compensation to Alaska Natives was issued mainly through Native Regional and Village Corporations rather than through tribal governments. As with land reserved for American Indians, the amount and economic potential of the land distributions to Native Corporations in Alaska varied widely. Tribal control exists in relatively small ways at the village level and not through the corporations. The corporate structure of the land settlement itself is private and conveys no sovereignty. Importantly, land owned by Alaska Native Corporations is not “Indian Country,” as defined by the federal government.2 No land has been specifically set aside or awarded to any Native Hawaiian group. Some ceded land does exist in Hawai‘i as trust land but its specified uses are not necessarily exclusive to Native Hawaiians. The lack of federal land settlements in the case of Native Hawaiians is due in large part to the absence of tribal recognition by the Bureau of Indian Affairs (BIA). Recently, the Department of the Interior announced an increased willingness to develop a nation-to-nation relationship with Native Hawaiians. The process of forming an organization to represent Natives in hypothetical discussions with the US government is likely to be long lived because no such single organization currently exists. The issue of sovereignty—in the political sense of the word—is a question of the degree of sovereignty that a group possesses. After all, a tribe within the political boundary of the United States can never have sovereignty in the way that a completely separate nation does. Nevertheless, a higher level of sovereignty, even a subordinate one, would allow a group, at least theoretically, to construct rules for its society that better suit its specific needs than the rules that bind the broader social collective. At the

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same time, if sovereign status results in limited interaction with the rest of the national economy, then group members might be worse off in a number of ways, particularly in terms of commerce and economic development. With regard to political status—which is a necessary but not sufficient condition for sovereignty—no group of Native Hawaiians have ever been recognized by the BIA as having valid tribal status, while hundreds of American Indian and Alaska Native groups have been so recognized (separately). For the most part, the reservation system, which identifies specific tracts of land and sets them aside for certain groups of people, has been used in the contiguous 48 states to establish areas of “Indian Country” for American Indians. In Alaska, reservations are rare, essentially non-existent, and not used in legal agreements to resolve disputes and claims of natives against federal and state entities. Rather, in the Alaska Native case, a separation between economic interests and political interests was made, leading to a different sovereign political impact. Sovereign rights in land claims, then, apply to a greater extent to American Indians, secondarily to Alaska Natives, and to Native Hawaiians in a much smaller sense, although all three groups have similar origin histories of ancestral occupation. The existence of differential treatment of separate indigenous groups by the US government might at first seem perplexing—why would there be differences in political status and land rights claims?—but the variegated outcomes are quite common in other countries, too. For example, there are also three aggregated groups of indigenous peoples in Canada who have received substantially different political treatment by the Canadian government.3 The fundamental idea that this chapter seeks to emphasize is that the current state of the separate relationships between each of these three aggregated groups of natives and the US government have evolved differently because the path (history) of each of these groups has been very different. While there is a large number of subjects that could be addressed in this context, the main concern of this writing continues to be land and sovereignty, so these issues will be the primary aspects of the history discussed.

1   Colonialism The term “colonialism” is used and defined in many different ways by different authors. Most commonly, researchers emphasize the territorial invasion and the political domination of a place and its people by an external

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colonial power, typically for the purposes of resource plunder and the acquisition of new land. The term “imperialism” is sometimes used interchangeably with colonialism, but there are important distinctions between the two. Imperialism primarily refers to the concept of political control of a separate people, often through coercion without the necessity of invasion and occupation. Colonialism, on the other hand, requires that the sending country physically inhabit the colony, at least long enough to establish political and military control and to introduce new permanent settlers who will maintain national allegiance to the colonizer. Colonization requires the establishment of a functioning government in the colony whereas Imperialism can often accomplish its goals through a puppet government made up of people originally from the foreign place. Colonizing activity requires more of an investment in manpower, resources, and effort than does Imperialism. The practice of conquest and colonization extends into antiquity and is evidenced all over the world. As this book focuses on indigenous peoples in the United States, it is seventeenth-century European colonizing that is most relevant. The main European countries that made investments in colonizing North America were Great Britain, Spain, and France. Other countries, like the Netherlands, also had a presence on the continent, but to a much smaller extent and for a much shorter period of time. While Great Britain had the greatest influence in the places that became the United States and Canada, the legacy of French colonization continues to be strong in parts of Canada, as does the legacy of Spanish colonization in the Southwest and California. Nevertheless, at independence, the newly formed United States inherited the relationship that Great Britain had established with Indian Nations. The United States was in no position immediately after its Revolutionary War to confront a new national enemy, so maintaining the nation-to-nation relationship with Indian groups that Great Britain had created through colonial administrators was initially the most practical approach. As the United States grew stronger, and as population pressures and the desire for wealth and land accelerated, the government policy toward Indians began to change.

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2   American Indians 2.1  Nation-to-Nation Relationship in the Colonial Period and the Early United States Leading up to the Revolutionary War, the British law specifying the western boundary between the thirteen colonies and the recognized land belonging to indigenous people was the Line of Royal Proclamation of 1763. This north-south boundary was unevenly enforced by the colonies and the Indian Nations it abutted, and by 1776, the effective boundary was being pushed west by settlers looking for “unclaimed” land. Under the first federal ruling documents of the United States, the Articles of Confederation, tribes were treated as sovereign nations, even though the Western concept of sovereignty did not well describe the social and political institutions of American Indian tribes and bands. The Treaty of Paris (1783) did not mention indigenous people at all, concentrating instead on European stakeholders. Within ten years of the treaty, the federal government had taken away the authority of states to negotiate directly any land agreements with Indian nations, requiring instead that all land acquired outside of the republic go first through the national government. During this time American Indians were still thought of and generally treated as having entirely separate nationalities and sharp lines were drawn and often enforced. Indeed, early treaty agreements between the United States and the Creeks and the Cherokees required American citizens to have a passport to enter Indian lands.4 When land title was in dispute, courts typically, unsurprisingly, ruled in favor of the United States. For example, in the 1823 case of Johnson and Graham’s Lessee vs. William McIntosh, the plaintiff claimed ownership of a tract of land based upon a purchase from American Indians while the defendant’s claim to ownership of the same land rested on a grant from the US government. The court decided the grant held sway on the basis of the federal government having the right to grant land regardless of tenancy and specifically that absolute title of the “crown” extinguishes any title Indians might hold.5 Therefore, in 1823, even though tribes had been considered separate nations in treaties, the court system placed tribes in a subordinate position to the US government, implying that the sovereignty of Indian nations did not carry the same weight as the sovereignty of the United States. This early foreshadowing of the coming absorption of Indian nations into the borders of the United States might have been unplanned, but it was ominous.

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Non-Europeans were pushed farther and farther west as the new country grew and became more powerful. 2.2   Relocation Policy and the Reservation System Title to Indian land came under increased scrutiny and common dispute early in the nineteenth century. In 1825, President Monroe offered a voluntary removal policy to address the calls of southern and eastern states to extinguish Indian land title: “The great object to be accomplished is the removal of these tribes to the territory designated on conditions which shall be satisfactory to themselves and honorable to the United States.”6 It was during the Jackson administration that the removal and relocation of American Indians accelerated precipitously and this administration, perhaps more than any other, is remembered for establishing the precedent of relocation.7 The Indian Removal Act of 1830 put forth as public policy the relocation of eastern and southern tribes to lands west of the Mississippi, specifically authorizing the exchange of land in the West for land occupied by Indian tribes in territory or state. It perhaps did not occur to the lawmakers at the time that this remedy was only sustainable if westward expansion of the United States stopped. One startling example of a mass relocation is the “Great Removal” of southeastern native peoples. In this single operation, approximately 100,000 individuals were moved. Plains peoples experienced similar pressure to relocate and, over time, the conflicts became increasingly violent. The reservation land that was set aside for Indians conveyed limited political autonomy, and the pretense of a nation-to-nation relationship began to pale. For example, the Supreme Court refused to hear a complaint from Cherokee Indians when the state of Georgia extended political authority over Cherokee lands in 1831 because the Cherokee Nation was not a foreign nation. The court described Indian tribes as “domestic dependent nations,”8 the clear implication being that self-determination of Indian peoples was not a priority in federal policy, law, or precedent. The removal of Indians westward followed the basic treaty concept of Indian Territory being west of a line established in the Intercourse Law of 1796 that was simply pushed farther and farther west over time. By the 1840s, even this idea of pushing Indians more and more toward the Rocky Mountains was no longer functional due the rapid expansion of white settlements, and encroachment by non-Indians now from both the west and the east. Before 1850, enormous spans of land came under direct

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federal control with the additions of the western territories of California and Oregon, and the southwestern additions of Texas and the rest of the land gained through the Mexican Cession (besides California). The solution was to create reservations that initially were meant as a stop-gap approach to conflicts between white settlers and Indian peoples. The point of view the federal government held was that Indians maintained title to the land they occupied and that the title could be extinguished only through treaty. The treaties themselves tended to be unilaterally proposed and enforced rather than negotiated, resulting in shrinking land holdings of Indians.9 The reservation space they were allowed to occupy was completely surrounded by the United States, a far more powerful and dominant political force than any Indian nation. 2.3   Assimilation and the General Allotment Act During the second half of the nineteenth century, the parallel intent of treaty and legislation was to “civilize” and assimilate Indians into US society. Issues of sovereignty and self-determination became increasingly problematic—after all, assimilation is the opposite of sovereignty and self-­ determination. The political organization of tribes was typically localized rather than regional, and so the federal government tried to establish a territorial organization for Indians that would allow territorial government, American citizenship, and land in severalty. This goal was impossibly challenging for a number of reasons, including the fact that hundreds of different treaties and arrangements already existed between the federal government and separate individual tribes. These treaties would, theoretically at least, have to be extinguished or at least renegotiated. Instead, the federal government adhered to a unilateral decision-making path. To further the assimilation policy, the US government adopted a policy of allotment. The General Allotment Act of 1887 (often referred to as the Dawes Act) splintered tribal control of existing reservations by attempting to remove some of the land in reservations from collective ownership (possessory title) and privatize it. Under that Act, certain tracts of land within reservations were given to individual American Indians and held in trust by the US government, while other tracts of land were sold to non-­ Indians. The Dawes Act resulted in substantial land loss for American Indians at the aggregated level. It also weakened the institutional position of tribes because some reservation land was owned by individuals, but other land was owned by individuals or the tribe and was now held in trust

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by the BIA. Political sovereignty requires the collective ownership of land, so privatizing slivers and chunks within a political boundary puts tribal jurisdiction into question. The policy lasted into the 1930s when it was finally reversed after many years of opposition to the Act culminated in the Meriam Report, a document detailing the deplorable conditions on reservations.10 In addition to the human suffering that occurred on reservations, trust land presents a number of challenges for development. Land held in trust is not as economically productive as land owned by private individuals or institutions because there are numerous legal and bureaucratic obstacles involved in utilizing this land. For example, investors may be hesitant to loan money for the development of land held in trust because in the event of a default it might be difficult to repossess. The Indian Reorganization Act was passed in 1934. The Act was an attempt “to rehabilitate the Indian’s economic life and give him a chance to develop the initiative destroyed by a century of oppression and paternalism.”11 This Act ended the allotment process and encouraged a new focus on self-determination and economic development. This new direction, however, did not last very long. 2.4  Termination Termination was the policy of the Eisenhower administration, a complete reversal of the intention of the Indian Reorganization Act. “Termination” refers literally to terminating the trust relationship between the US government and Indian tribes. As with any and every policy put forth by the federal government, it was heralded as a way to improve the lives of Native Americans by setting them free of the bounds of reliance on the government. A consequence of severing the ties with the US government would be the elimination of all support services and federal benefits, and doing so would bring most tribes to the brink of total destruction.12 Two significant policy actions during the termination era were House Concurrent Resolution Number 108 (HCR 108) and Public Law 83-280 (PL 280). The former, adopted in 1953, is the action that directed the end of benefits and services to Indian tribes. In ten years, the trust relationship was severed by Congress for 109 tribes, in each case the tribes being ordered to stop exerting any governmental powers and to distribute all land and property to individual members of the tribe. The reservations in question were eliminated and legal jurisdiction over the people and the land in these places returned to the states in which they were situated. The

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latter gave six states13 criminal and civil legal jurisdiction over Indian reservations. While this law had narrower consequences than HCR 108, PL 280 did erode political sovereignty of a large number of tribes.14 After this period of dizzying policy reversals and attempts to terminate tribal authority and governance in the 1950s and 1960s, self-determination again came into focus late in the Johnson administration and then in the Nixon administration as well. 2.5  Stewardship and Self-determination Presently, any land held collectively by American Indians is known as Indian Country and represents the remnants of an ever-shrinking ancestral space. The legacy of allotment leaves land title on many reservations fractured and, even in these places, Indians are often outnumbered by non-­ Indians.15 Reservations hold a measure of sovereignty and the leadership can conduct the affairs of the people as they see fit, to a limited degree and as long as activities remain within federal law. The laws of states that surround reservations do not necessarily apply, although the differences between laws on reservations and state laws are typically small, except in some cases involving issues of commerce and taxation. Large administrative problems do exist because of jurisdictional overlap between the tribal authority, the state(s) in question, and the federal government, frequently resulting in a lack of services on reservations and persistent social and human poverty. The land is not equally productive in every place, and the size of reservations varies enormously.16 Management of the land suffers from jurisdictional confusion, historical arrangements, and differences in management style and ability from one tribe and reservation to another, making the monetary returns to land use variable. Contracts for mineral extraction and other land uses are sometimes negotiated by federal agencies to a less than optimal conclusion for tribes. Some tribes choose business models such as casinos that others shun. The net results for revenue generated by the land are determined by a multitude of factors affecting each tribe unequally.17 The US government appears to take seriously its nation-to-nation relationship with American Indians. Many departments of the government go as far as publishing booklets of guidelines for federal agencies that interact with tribes. One example is the Bureau of Reclamation, which is the agency that oversees water resource management. In the introduction to “Protocol Guidelines: Consulting with Indian Tribal Governments,”

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issued in 2012 by the Bureau of Reclamation in the Native American and International Affairs Office, the special relationship between tribal governments and the US government is described.18 Indian tribes have a unique political relationship with the government of the United States, including the Bureau of Reclamation. In recognition of that special relationship, Reclamation is charged with engaging in regular and meaningful consultation with Indian tribes and is responsible for adhering to a government-to-government relationship. […] Each tribe in the 17 Reclamation states is a distinct legal-political entity, and the message presented here is that the tribes are not to be treated as though they are alike or only another member of the general public. Indian tribes are sovereign governments. Each tribe has its own unique set of needs, concerns, and interests that are often shaped or influenced by historical events and cultural values. Developing protocol, conducting consultation, maintaining a government-to-government relationship requires openness and understanding, patience and flexibility, and an appreciation and acceptance of the fact that there are no linear solutions or cookbook answers.

The nation-to-nation policy is designed to create an environment that fosters self-determination for tribes. As far as it goes, the policy is a generally good one in the sense that it achieves its limited goals within its limited scope. The broader question continues to be whether this policy makes any real difference in the lives of Indians. In other words, does the current government policy make tribes better off than another policy, worse off, or does it have no real effect?

3   Native Alaskans19 3.1  Native Society in Alaska at Seward’s Purchase Prior to the arrival of Russians in Alaska, the people there lived a subsistence lifestyle. Communities along the coasts exploited available fishing (and other marine) resources and augmented their harvests with hunting. In the interior of Alaska, it was the reverse: hunting was more important and fishing in the rivers was secondary. Into the distant past, people lived in small groups. There is evidence that in the interior at least as many as 10,000 years into the past, people lived in small family groups during the summer and banded together in somewhat larger groups in the winter to

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face the harsh frozen landscape.20 The people lived off the land, as did other indigenous people in North America at contact with Europeans. Russia started exploring Alaska around 1741, eventually establishing colonies in what it called Russian Alaska. Russia’s approach to Alaska was the typical colonial enterprise of plunder. By 1799, a government-­ sponsored company was created to extract as much value as possible from Alaska, expanding east and south, and by the middle of the century it had expanded north along the Yukon River and the seas of the west Alaska coast. Other countries made a few expeditions to Alaska (Spain, for example), but it turned out to be too remote to be considered worth the effort to occupy and defend. Even Russia never really committed a large amount of resources to Alaska and did not establish large colonial populations as European countries had along the east Atlantic coast. By 1850, the question of whether Russia wanted to remain in Alaska at all was given serious consideration by the rulers.21 In 1867, Russia sold Alaska to the United States in a deal brokered by Sectary of State William Seward. Many questioned the wisdom of buying a frozen, distant land, so much so that the deal became popularly known as “Seward’s Folly.” The people who had been living in Alaska for thousands of years were not consulted about whether they wanted the land transferred to another colonial authority and might have been completely unaware that the sale had taken place, except perhaps for the eventual disappearance of Russian officials. The new landlords in Alaska were initially not as traditionally colonial as the Russians had been. Indeed, the United States appeared not to have much interest in governing in Alaska seriously for the first thirty years. Everything changed when mineral wealth was discovered, most notably in 1897 when gold was found in the Yukon. The easiest access to the gold turned out to be through southeastern Alaska, which neighbors British Columbia. Alaska Natives had relatively little involvement in the gold rush or the further development that came in the early part of the twentieth century and, similar to American Indians in the Lower 48, the legislative history concerning land rights of indigenous peoples in Alaska is long and convoluted. Laws and agreements overlap and conflict with each other, sometimes disappearing only to later reappear. The two laws that had the biggest impact on Native Alaskans, the Alaska Native Claims Settlement Act and the Alaska National Interest Land Conservation Act, are discussed below. Before those two, however, there was one major attempt to settle land claims in the early twentieth century, The Native Allotment Act.

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The Native Allotment Act (1906) was one of the earliest laws addressing land rights of Alaska Natives. Under this act, Alaska Natives were authorized to acquire individual allotments of up to 160-acre parcels of unreserved and unappropriated land in what was essentially a type of homestead legislation. The approach in the 1906 Act was very similar to the one taken by the General Allotment Act that was aimed at American Indians, but in Alaska it was even less successful in terms of achieving its goals. Approximately 10,000 applications were filed by Alaska Natives for 16,000 parcels of land under the law—a miniscule amount considering the available land in the territory. Homesteading in Alaska was a monumental undertaking and few chose that path. The Alaska Statehood Act (1958) had a much larger impact on the land and on Native Alaskans in that it added a newly created economic unit, the State of Alaska, into the land rights issue by giving it legal standing and claim to land formerly in federal hands. This Act allowed the new state to select for ownership approximately 104 million acres of unclaimed and unreserved federal land, in some ways squeezing out the interest of Native Alaskans. More legislation was to come, however, with even more profound and lasting impacts on Natives. 3.2  Alaska Native Claims Settlement Act In terms of legislation, the act that had by far the largest impact on Native Alaskans was the Alaska Native Claims Settlement Act (ANCSA) of 1971. Designed as a means of settling all existing land claims of the aboriginal peoples of Alaska, the law transferred approximately 44 million acres of public land and nearly $1 billion to them. The distribution of the land and money was accomplished through the creation of twelve regional corporations and more than 200 village corporations, a process that was completely different than any tried before in previous law. As a means of remedying past wrongs against Native peoples, the approach established a private form of compensation rather than creating a political entity such as a tribal government or a reservation. All Alaska Natives born on or before December 18, 1971, were allowed to enroll in one of the corporations, receiving ownership through corporate shares, assuming they could pass the one-quarter blood quantum requirement. The race requirement alone makes Native regional corporations very different from other private corporations in the United States. Pointedly, it would be illegal for any other private corporation to have a racial requirement in order to be a

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shareholder. ANCSA put additional restrictions on shareholders as well. The act prohibited the sale of any shares in a corporation for a period of at least 20 years, for example. This paternal aspect of ANCSA reflects the US government’s continuing sense of a trust relationship it holds with indigenous peoples within its borders. The idea of the transfers themselves was as reparations for past wrongs. Conceptually, the distribution of land returns to natives ancestral heritage and subsistence ability. Because it was thought that not enough land was made available through the Act to achieve these goals, the cash transfers were included. The establishment of the corporation structure was intended to create a lasting vehicle for economic development. The distribution of land to the regional corporations, however, was not uniform. The corporation receiving the smallest allotment was Sealaska at 0.3 million acres; the largest distribution was 12.5 million acres to the Doyon Corporation. The potential market value of the land varied widely as well. Some corporations received land with valuable surface or subsurface products, like the Arctic Slope Corporation receiving land with real and potential oil and gas deposits, Chugach Natives Corporation receiving land rich in timber, and NANA Corporation receiving land with zinc-lead deposits. Other regional corporations, like Aleut, Bering Straits, and Koniag, took title to land with no known marketable products other than the land itself. This disparity is important because the regional corporations received “fee simple” title to the land, meaning they controlled rights to both the surface and subsurface of the land. Remote land in Alaska with no harvestable trees and no subsurface assets has a market value that is, for all intents and purposes, zero. The disparity is addressed and somewhat overcome by the requirement that 70% of all net earnings from subsurface and timber resources made by each Native corporation must be distributed equally among all other corporations. The cash settlement was divided among the corporations and individual natives: the regional corporations received 45% of the distribution, as did the village corporations, and the remaining 10% went to individuals as an immediate transfer. Land has value beyond its market price, but in the absence of any associated sovereignty, the non-­ market value resides entirely in the murky sphere of personal utility arising from preference satisfaction. Was ANCSA a success? If the primary goal was to settle all aboriginal claims to land in Alaska, then it did do that, to the extent that any law can. Like any major legislation, ANCSA faced continual legal challenges and has been revised periodically over the years since its enactment to address

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unforeseen problems that emerged. For example, ANCSA was substantially revised through legislation during the Reagan administration. In what came to be known as “The 1991 Amendments,” important changes such as including shareholder control to issue stock to natives who missed out on the original enrollment (those individuals who were born after the initial deadline established by the law), a continuation of restrictions on the sale of stock after the expiration of the initial 20-year prohibition period, the protection for undeveloped land became automatic and did not require other specific legislation, and authority of shareholders to change benefits to elders, along with several other minor corporate structure changes. Because of the extraordinary scale of money involved in the settlement, it is not surprising that litigation continues on many aspects of both the initial ANCSA legislation and the many subsequent amendments to it. Even with this apparent turmoil and uncertainty, ANCSA provided legal property rights to Natives that did not exist prior to the law. 3.3  Alaska National Interest Lands Conservation Act The intention of ANCSA was primarily the distribution of assets, including land, to Native Alaskans as a remedy for incursions into their ancestral spaces. As a percentage of the total land area of Alaska, the 44 million acres ANCSA distributed constituted a relatively small proportion of the land that existed, and, more to the point, land that Natives actually used. Land use activities were addressed more directly in the separate legislation of the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. The law gave people living in rural places in Alaska, the overwhelming majority of whom were Alaska Natives, priority in hunting and fishing on public lands.22 As the title implies, ANILCA was written mainly to address land conservation issues. As a separate intention, the Act also sought to preserve Native culture by protecting the opportunity to engage in a traditional subsistence lifestyle of land use. In rural Alaska, subsistence activities account for a large share of final food consumption goods. According to the Alaska Department of Fish and Game, 86% of rural households used game from subsistence hunting and 95% of rural households used fish from subsistence fishing in 1999.23 These traditional activities are not just a matter of culture, they are eminently practical, given the rugged nature of the rural environment in Alaska and the scarcity of market sources for food. Without hunting, fishing, and gathering, many people in rural Alaska would go hungry. Urban residents in the state also participate in

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hunting and fishing activities, but on a much smaller scale and often for recreational purposes—not as a primary food source. In addition, the impact of subsistence activity rests disproportionately on the Native population because natives make up the majority of the rural population and a much smaller proportion of the urban population. Therefore, any change in legal access to subsistence goods affects proportionately more natives than any other racial group in Alaska, making land use rule changes significant public policy directed at natives. Despite its focus, part of the intent in the original conception of ANCSA was to preserve the lifestyle of natives. It has nevertheless been seen by some as a failure, especially with respect to subsistence guarantees.24 Land use changes in ANILCA, then, can be viewed as a response to the perceived need to protect rural residents’ rights to subsistence access left unaddressed by ANCSA. Because the highest priority goes to Alaska Natives more than any other group, an entitlement is created specifically for natives as it eliminates competition for game and fish from commercial and sport activities and excludes non-natives (people without customary and direct dependence) from the highest priority subsistence rank. These definitions provided by ANILCA of exactly which group has what specific rights in the use of the land in question refine the land rights attributes Alaska Natives own—their bundle of rights. Expanding the bundle of rights with respect to land use is particularly important in Alaska as compared to the rights tribal members share in the Lower 48 because Alaska Natives received no sovereign space through ANCSA or ANILCA.25 Land owned by Alaska Native Corporations, regional or village, does not constitute Indian Country.26 In Alaska, then, the ownership of the land operates much more like private ownership than the political public ownership nature of reservations in the Lower 48. This private ownership does convey additional rights exclusive to Natives, but it does in no way constitute collective sovereign control of any land. Ancestral practices and cultural activities can theoretically be preserved through private ownership of land that is subsequently used for such activities. Self-determination, however, might be severely limited in the case of private ownership as compared to sovereign control because the laws of the surrounding state government supersede local laws. It is perhaps too much to ask of ANILCA that it change land use rights enough to convey exclusive cultural use to spaces in addition to the very specifically defined traditional practices of subsistence hunting and fishing. Exceptions have been made in other cases, however, through the legal system and so could have theoretically

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been implemented in a similar way here. As a comparison in terms of political sovereignty, ANILCA falls short. While ANCSA is notable in the context of this chapter for providing specific property rights and cash transfers to a vulnerable population in Alaska, ANILCA is remembered for defining fundamental land use rights. In each case, the laws can be interpreted as providing a particular bundle of rights to a specific group of people. The political arrangements are very different in Alaska than they are in the Lower 48 states, and tribal governance, as such, occurs at the village level while the bulk of economic distributions to members come from the regional corporations, each of which spans many villages. Some village corporations do generate relatively large revenues, but these are in a small minority. In this way, economic development, land use, and tribal governance are separate in Alaska in a way that they are not among Indians in the Lower 48.

4   Native Hawaiians27 4.1  Hawai‘i: The Kingdom, the Republic, and the State In 1898, the United States annexed the Hawaiian Islands, known at the time as the Republic of Hawai‘i, through a Joint Resolution after the failure to pass a proposed treaty.28 The year was tumultuous for Hawai‘i and the United States. In Hawai‘i, a new republic had been formed a few years earlier after the overthrow of the ruling monarch, Queen Lili‘uokalani, who presided over the Kingdom of Hawai‘i, a consolidated government of the eight principal islands. The rebellion had been orchestrated by US business interests who sought to protect the land they had acquired for sugar production. The creation of the Republic of Hawai‘i is usually seen as an instrument to facilitate annexation by the United States so that the foreign land holdings could be solidified by US law and not be subject to the uncertainty of the Hawaiian monarchy.29 This process of acquisition makes the history of Native Hawaiians unique from that of other indigenous peoples in the United States. Before its overthrow in 1893, Hawai‘i was a nation with an independent functioning government, although the government and the society had been experiencing considerable turmoil in the years leading up to the coup d’etat. Foreign landholders had been putting pressure on the government for many years to formalize and make permanent their land rights. The initial foreigners who arrived occupied themselves with harvesting

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sandalwood and engaging in the fur trade and whaling. Overexploitation of these industries eventually lead to their collapse as commercial enterprises, necessitating the development of new avenues for revenue. The answer was agriculture, specifically sugar cane. Agriculture requires land and any uncertainty about land title makes plantation operation uncertain as a business enterprise. Annexation by the United States would place property rights under US law, and annexation was more easily accomplished under the new republic than it would have been under the existing Kingdom. The overthrow of the monarchy was therefore based primarily on commercial principles.30 Even with the conflict and the political upheaval that lead to the annexation, the existence of a national government of the indigenous people on Hawai‘i stands in stark contrast to the historical situation of indigenous peoples in both Alaska and the continental United States, where Native peoples were primarily organized in separate autonomous communities rather than into broader macro-political institutions. Hawai‘i became a state in 1959 after a referendum vote that favored statehood. Most areas in the islands approved statehood by an uncontestable margin. However, the one precinct that voted to reject statehood status was Ni‘ihau, the only island populated entirely by Native Hawaiians.31 The vote on Ni‘ihau is symbolic, and perhaps a portent, of the struggle of Native Hawaiians to achieve sovereign recognition that has gone on ever since statehood. 4.2  Assumption of Assimilation Native Hawaiians became citizens of the United States at the moment of annexation in 1898. This political status stands in contrast to the experience of other indigenous peoples, not all of whom were granted citizenship until the Indian Citizenship Act of 1924. Perhaps this early “success” at citizenship turned out to be a setback in terms of sovereignty because the Bureau of Indian Affairs does not recognize any Native Hawaiian group as a tribe or band for federal purposes. Political sovereignty requires a separateness from other ruling sovereigns, however tenuous. With a political annexation rather than an initial territorial status, the presumption appears to have been that Native Hawaiians would immediately assimilate into the population of the United States. While many changes have been made in the relationship between Native Hawaiians and the federal government since annexation and, later, statehood (e.g., people of

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Native Hawaiian ancestry are eligible for some federal programs based upon their race), federal recognition has not yet occurred. Native Hawaiians have had more success in recognition at the state level. Trust lands in Hawai‘i amount to 200,000 acres that were ceded as part of the annexation of 1898. Initially, the lands were administered by the federal government, but authority over ceded land was transferred to the state as part of the statehood process in 1959. The land is now managed by the Department of Hawaiian Home Lands, a state department. The Hawai‘i state constitution was amended in 1978 to provide that previously ceded lands would be held in a public trust for Native Hawaiians and the general public. The inclusion of the final clause in the wording hints at the ongoing conflict between native groups and the state, the latter of which seems to favor the idea that all people living in Hawai‘i are the same, suggesting a hesitance to embrace sovereign separateness. A similar tension often cropped up between Native Alaskans and the State of Alaska over issues such as rural priority for subsistence harvesting which Native Alaskans favored and the state opposed. The 1978 amendments also established the Office of Hawaiian Affairs (OHA) that was charged with managing and administering the pro rata portion of the public trust set aside to benefit Native Hawaiians. In 1979, the definition of “public land trust” was made clear. Laws enacted that year in Hawai‘i defined the land trust as all proceeds and income from the sale, lease, or other disposition of ceded lands. At the same time, the OHA was authorized to collect, administer, and expend 20% of all funds derived from the “public land trust” for the betterment of the conditions of Native Hawaiians. The State of Hawai‘i officially recognized Native Hawaiians as indigenous people in 2011.32 State recognition does not carry the same weight as federal recognition in terms of political sovereignty or access to federal assistance and services. In the case of Hawai‘i, the state has been more willing to work with indigenous people on issues such as cultural preservation and self-determination than other states that have recognized tribes in the absence of federal recognition. The early federal assumption of assimilation is therefore undermined to some extent by the activities of the state.

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4.3   Cultural Preservation After Statehood The State of Hawai‘i has made many efforts to encourage and assist in the preservation of Native Hawaiian culture. In addition to officially recognizing Native Hawaiians as indigenous people, the state has established two agencies dedicated to furthering the goals of Native Hawaiian people: the Department of Hawaiian Home Lands and the Office of Hawaiian Affairs. The Department of Hawaiian Home Lands (DHHL) was created in 1920 by the Hawaiian Homes Commission Act, initially as a federal agency and then, at statehood in 1959, a state agency. The Commission describes its mission in its 2014 annual report this way: “As stewards of the Hawaiian Home Lands Trust, the Department of Hawaiian Home Lands remains focused on our core mission of returning Native Hawaiians to the land, as envisioned by our founder Prince Jonah Kūhiō Kalaniana‘ole.”33 The aims of the commission are achieved through reviewing and granting leases in the existing 200,000 acres of remaining trust land and by political activism aimed at maintaining land use priorities. The DHHL applies for and administers federal funding through programs such as the Native American Housing Assistance and Self-Determination Act which provides block grants for use in projects outlined in an Annual Housing Plan. Another large funding source is the U.S.  Department of Housing and Urban Development (HUD). DHHL submits a Native Hawaiian Housing Plan (NHHP) to HUD each year for approval and funding. According the 2014 annual DHHL report, “As of June 30, 2014, DHHL received $131,980,193 in funding for 12 NHHPs, and an additional $10.2 million in American Recovery and Reinvestment Act (ARRA) funds.”34 Therefore, while DHHL is a state agency, it is primarily dispersing federal dollars. The Department of Hawaiian Home Lands is a large agency with many functions, all of which are ultimately dedicated toward its primary mission of reinforcing and maintaining the connection between Native Hawaiian people and the land. While the DHHL is tasked specifically with issues related to the land, the Office of Hawaiian Affairs (OHA) has a more general charge of improving the well-being of Native Hawaiians, and it is much more involved in broad-based activism. OHA has outlined a strategy to achieve its goals based upon six pillars35: ‘Ā ina Our focus on protecting the ‘āina is part of a larger effort to honor the past while preparing for the future. As the state’s 13th largest landowner, we

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manage more than 27,000 acres of lands set aside largely for cultural and agricultural endeavors. To maintain the connection to the past and a viable land base, we’re taking steps to ensure responsible stewardship of Ka Pae ‘Ā ina O Hawai‘i. Culture Our focus on preserving Hawaiian culture remains among our top priorities. For that reason, we have been devoting time and energy to identifying opportunities that can bring significant value to its efforts to increase the number of Native Hawaiians who appreciate their history and culture. The initiative also calls for increasing Native Hawaiian participation in cultural activities. Economic Self-Sufficiency Our focus on improving economic self-sufficiency centers on two critical goals: increasing homeownership and housing stability among renters within the Native Hawaiian community; and increasing Native-Hawaiian family income. Called the Hoʻokahua Waiwai initiative, this effort is ultimately about helping Native Hawaiian families become more financially viable. Education Our focus on improving education in the Hawaiian community ranks near the top of our priorities. The two primary goals for Hawaiian education involve increasing the percentage of Native Hawaiian students who meet or exceed reading and math standards in middle school as well as high-school, and boosting the graduation rate at the post-secondary level. Governance A key goal of our governance initiative is to facilitate a process that would give Hawaiians the opportunity to create a governing entity that would define Native Hawaiians as a political rather than racial group. The benefit of such a Governing Entity would be its ability to provide Native Hawaiians with greater control over their destiny as they move toward self-­determination and self-sufficiency. Health Our focus on the health of Native Hawaiians reflects a top priority to reduce their obesity rate, which is due to health concerns associated with a lack of physical activity and proper nutrition. Our research shows that 75 percent of Native Hawaiians are at risk of being obese or overweight. We are working towards significantly reducing the obesity rate among Native Hawaiians by 2018.

According to OHA’s 2015 financial report, funding sources include the State of Hawai‘i, ceded land revenue payments, federal grants, and “miscellaneous other income.” The primary source of revenue is received from withdrawals made from the Native Hawaiian Trust Fund (NHTF),

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accounting for nearly half of all revenue.36 The specific missions and the funding sources of these two agencies vary but the overarching intent is to benefit Native Hawaiians and to preserve and renew the Hawaiian culture. Significantly, these organizations exist only because of the dedication of the State of Hawai‘i to issues important to Native Hawaiians. 4.4   Proposed Nation-to-Nation Relationship None of the many attempts to gain both federal recognition of Native Hawaiians as a political entity and reclaim ancestral land in Hawai‘i has been successful. The most well-known attempt was the Akaka Bill, named for Daniel Akaka, the senator from Hawai‘i who introduced it. The bill passed the House but failed in the Senate in 2010 and no other legislation has come as close to passing since then. In 2015, the Department of the Interior released a statement of intent to develop a nation-to-nation relationship with Native Hawaiian people. The statement reads, in part, as follows37: The Secretary of the Interior (Secretary) is proposing an administrative rule to facilitate the reestablishment of a formal government-to-government relationship with the Native Hawaiian community to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The proposed rule does not attempt to reorganize a Native Hawaiian government or draft its constitution, nor does it dictate the form or structure of that government. Rather, the proposed rule would establish an administrative procedure and criteria that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-­ government relationship with the United States. Consistent with the Federal policy of indigenous self-determination and Native self-governance, the Native Hawaiian community itself would determine whether and how to reorganize its government.

This statement came as a revelation to many observers, and while it is very encouraging for those who hope to establish a government-to-­government relationship, it passively proposes many obstacles in addition to opening many opportunities. For example, who speaks for Native Hawaiians? Which group? What any particular Native Hawaiian, or interest group, might want could easily be very different from what another particular Native Hawaiian wants. Which group has the greatest standing and the

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resultant right to represent Native Hawaiians as a collective? The issue has become quite divisive and remains unresolved. The statement (and the final version of the rule released in 2016) essentially instructs the Native Hawaiian community to somehow organize itself if it wants to, and to somehow form an institution of government by its own means. Of all the approaches the US government could have taken to the issue of self-­ determination for Native Hawaiians, this one, although difficult, is perhaps the one with the greatest chance for success so far. Every step of the building process will surely be scrutinized by the courts when the inevitable law suits are filed, thereby making the resultant institutions and documents stronger than they might otherwise be. Whether federal acknowledgment occurs or not, the path toward it has been fundamentally different for Native Hawaiians than for American Indians or Alaska Natives.

Notes 1. Prucha (1984). 2. The subject of “Indian Country” is discussed extensively throughout the book. Here, it is sufficient to think of it as sovereign geographic space. 3. Morse (1985) and Dickason and McNab (2009). 4. Prucha (1994), p. 4. 5. Johnson & Graham’s Lessee v. McIntosh, 21 U.S. 8 Wheat. 543 (1823). 6. Prucha (2000), p. 39. 7. Inskeep (2015), p. 9. 8. Prucha (2000), p. 57. 9. Prucha (1984), pp. 315–318. 10. Otis (1973). 11. Pevar (2004), p. 10. 12. Wilkinson (2005), pp. 57–58. 13. The six states were Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. 14. Wilkinson (2005), pp. 84–85. 15. Norris et al. (2012). 16. Edwards and Natarajan (2008). 17. Edwards (2013). 18. Bureau of Reclamation (2012). 19. Much of  the  material from  this section comes directly from  Edwards and Natarajan (2007, 2008) and Edwards (2015). 20. Mason (2004), p. 45.

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21. Alaska Humanities Forum (2017). 22. Pevar (2004), p. 302. 23. Atkinson (1987). 24. Ibid. 25. Ibid. 26. Getches et al. (2005), p. 899. 27. Some of the material in the section comes directly from Edwards (2015). 28. National Archives (2016). 29. Daws (1974), pp. 266–268. 30. MacKenzie (2015). 31. Daws (1974), p. 391. 32. Baehr (2011). 33. Department of Hawaiian Home Lands (2015), p. 4. 34. Ibid., p. 15. 35. Office of Hawaiian Affairs (2016). 36. Office of Hawaiian Affairs (2015). 37. Department of the Interior, statement, accessed 1-10-2017, https:// www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/ NPRM%20Part%2050%209.29.15.pdf

Bibliography Alaska Humanities Forum. 2017. Alaska History and Cultural Studies. http:// www.akhistorycourse.org/russias-colony/the-russians-use-alaska. Accessed 9 Jan 2017. Atkinson, Karen J. 1987. The Alaska National Interest Lands Conservation Act: Striking the Balance in Favor of ‘Customary and Traditional’ Subsistence Uses by Alaska Natives. Natural Resources Journal 27: 421–440. Baehr, Brooks. 2011. State Officially Recognizes Hawaii’s Indigenous People. http://www.hawaiinewsnow.com/story/15037594/abercrombie-signs-billrecognizing-native-hawaiians. Accessed 9 Jan 2017. Bureau of Reclamation. 2012. Protocol Guidelines: Consulting with Indian Tribal Governments. https://www.usbr.gov/native/policy/protocol_guidelines.pdf. Accessed 9 Jan 2017. Daws, Gavan. 1974. Shoal of Time: A History of the Hawaiian Islands. Honolulu: University of Hawaii Press. Department of Hawaiian Home Lands. 2015. 2014 Annual Report. Honolulu: Department of Hawaiian Home Lands. Dickason, Olive P. with David T. McNab. 2009. Canada’s First Nations: A History of Founding Peoples from Earliest Times. Don Mills: Oxford University Press. Edwards, Wayne. 2013. Tribal Government Responses to Poverty. In The New Faces of American Poverty: A Reference Guide to the Great Recession, ed. Lindsey Hanson and Timothy Essenberg, 560–569. Santa Barbara: ABC-CLIO.

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Edwards, Wayne. 2015. “Divergent Economic Outcomes of Land Rights Claims of Indigenous Peoples in the United States,” Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, edited by Mark D. White (Palgrave Macmillan, 2015), pp. 161–181. Edwards, Wayne, and Tara Natarajan. 2007. Rigidities, Living Conditions, and Institutions in the Far North. Forum for Social Economics 36 (2): 63–72. Edwards, Wayne, and Tara Natarajan. 2008. “ANCSA and ANILCA: Capabilities Failure?” Native Studies Review 17: 69–97. Getches, David H., Charles F. Wilkinson, and Robert A. Williams Jr. 2005. Cases and Materials on Federal Indian Law. 5th ed. St. Paul: Thomson West. Inskeep, Steve. 2015. Jacksonland: President Andrew Jackson, Cherokee Chief John Ross, and the Great American Land Grab. New York: Penguin Press. MacKenzie, Melody Kapilialoha, Susan Serrano, and D. Kapua‘ala Sproat (editors). 2015. Native Hawaiian Law: A Treatise (Honolulu: Kamehameha Publishing). Mason, Rachel. 2004. Protecting Ethnographic Landscapes in Alaska: U. S. Policies and Practices. In Northern Ethnographic Landscapes: Perspectives from Circumpolar Nations, ed. Igor Krupnik, Rachel Mason, and Tonia Horton. Washington, DC: Arctic Studies Center. Morse, Bradford W. 1985. Aboriginal Peoples and the Law: Indian, Metis, and Inuit Rights in Canada. Ottawa: Carleton University Press. National Archives. 2016. The 1897 Petition Against the Annexation of Hawaii. https://www.archives.gov/education/lessons/hawaii-petition/. Accessed 9 Jan 2017. Norris, Tina, Paula L.  Vines, and Elizabeth M.  Hoeffel. 2012. The American Indian and Alaska Native Population: 2010. 2010 Census Briefs, Document C2010BR-10. Washington, DC: United States Census Bureau. Office of Hawaiian Affairs. 2015. Annual Report 2015. Honolulu: Office of Hawaiian Affairs. ———. 2016. Strategic Plan and Focus. http://www.oha.org/strategicplan. Accessed 10 Jan 2017. Otis, D.S. 1973. The Dawes Act and the Allotment of Indian Lands. Norman: University of Oklahoma Press. Pevar, Stephen L. 2004. The Rights of Indians and Tribes. 3rd ed. New  York: New York University Press. Prucha, Francis Paul. 1984. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press. ———. 1994. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press. ———. 2000. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press. Wilkinson, Charles F. 2005. Blood Struggle: The Rise of Modern Indian Nations. New York: W. W. Norton.

CHAPTER 3

Sovereignty

The important and difficult question here is: Why do most indigenous groups continue to seek or maintain political sovereignty when, by most measures, economic and health outcomes in indigenous sovereign places in the United States are worse than they are in the general population? There are many important issues to consider. For one, the non-market value of sovereignty might very well outweigh any negative market-value outcomes. It could be the case that sovereignty itself has little to do with the observed negative economic experiences and so, sovereign or not, these places would have exhibited below-average outcomes. Perhaps people who could choose to abandon an existing sovereign arrangement are unaware of how to make the change or are unmotivated to change. Maybe many people living on reservations do not think they have any alternative at all and do not believe that they can in fact choose to leave (or perhaps they think that leaving would be even worse because of many factors, including leaving their families and communities). There is also the possibility that people who care the most about sovereign space do in fact remain on it and those who value it less leave, given that resident populations on many reservations have been in decline. There is a growing body of writing that is taking notice of the sharp group differences between so-called urban Indians and Native people living on reservations. The answer is likely different for different people as we all are individuals motivated by myriad different forces. Answers derived from aggregated facts

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might well be misleading with respect to any particular individual, and therefore must be considered with caution. The question of sovereignty itself—what it is and how it relates to indigenous peoples in the United States—must first be answered and understood before the broader question of whether it is worth seeking and maintaining can be seriously considered. There is a large literature on the subject of the value of sovereignty, and there are many points of view and opinions on the subject. This chapter will begin by defining the legal and political meaning of sovereignty then go on to review valuing concepts in the literature in the context of the economic information of three defined aggregated groups with an emphasis on comparisons between these three groups. Quantifying the dollar value of sovereignty or the dollar value cost of seeking sovereignty is not a realistic endeavor—there are too many non-market elements involved that are critically important but have no definable nominal monetary value. Observing the continued efforts and listening to what indigenous groups themselves say about the desire and need for sovereignty is much more revealing. While the histories and sovereign arrangements are very different across the three aggregated groups considered, the desire for self-determination is a consistent, unifying theme.

1   Legal and Theoretical Sovereignty What does “sovereignty” mean? Definitions of sovereignty are plentiful, but they can be narrowed down by beginning with the specific concept of political sovereignty rather than, say, personal sovereignty. Political, or national, sovereignty of a government implies that it has absolute authority over the land that is held within its borders. Jackson puts it this way1: Sovereignty is the idea of authority embodied in those bordered territorial organizations we refer to as “states” or “nations” and expressed in their various relations and activities, both domestic and foreign. In the early twenty-­ first century there are almost two hundred of those organizations around the world, each one responsible for the territory under its jurisdiction and the people who live there. Sovereignty is at the centre of the political arrangements and legal practices of the modern world. The idea originated in the controversies and wars, religious and political, of sixteenth- and seventeenth-­century Europe. It has existed without interruption and spread around the world since that time, and it continues to evolve.

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At the national level, then, it is sovereignty that makes all the difference. When one country’s government officially “recognizes” another country’s government, what they are doing is stating that the other government is the sovereign authority for a defined territorial space and that it is the only institution that will be dealt with regarding any matters related to the land and people therein contained. At the national level, sovereignty is absolute authority that, once achieved and in the absence of civil war, is uncontested. Members of the government will change as time passes, but the institution itself remains in power as the sovereign force. In terms of international relations, sovereignty is a binding constraint. A group unrecognized as the official political representative of a people and place does not have collective approval of the international community to speak or act on behalf of the people and the place, and its actions do not have the force of law. Consider Tibet as an example. While there does exist a government in exile—Central Tibetan Administration—headed by the well-known international figure the Dalai Lama, as far as the international community is concerned, Tibet is part of China and the Central Tibetan Administration has no authority over the people or affairs of Tibet. Sovereignty, and external sovereign recognition, makes all the difference. Political sovereignty can also exist at a less absolute level. For example, consider the political organization of state governments in the United States. State governments have the power to pass laws that regulate the land and the people within the boundaries of their state, laws that might be different to the laws of another, even adjacent, state. In the United States, the authority of states comes from constitutional guarantees and subsequent legislation and precedent. The federal (national) government remains the absolute authority, but as long as the state does not violate federal law, it is free to make its own rules. As such, the sovereignty of a state is subordinate to national sovereignty. Still, state sovereign authority is valuable insofar as it allows state governments to tailor some rules to fit the particular circumstances of the people and land within the state. One example is income taxes. Most states collect a state income tax, but some do not. Alaska, due to the large inflows it receives from taxing oil production, does not need to raise revenue through an income tax and therefore does not assess one. Vermont, on the other hand, decided that it needed to raise revenue through a state income tax and, in 2016, had a maximum marginal income tax rate of 8.95%.2 The two states are very different, and because of the partial sovereignty that each enjoys, their respective regional governments can decide on the optimal tax policy for their residents.

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States are different in many other ways besides taxes. Another example is the regulation of commerce. Gambling is allowed in some states, but not in others, as is prostitution and alcohol consumption (although the latter two are allowed or prohibited at the county and/or local level rather than at the state level). To go from the micro to the macro, states also have a surprising amount of control over the conduct of elections, even national ones. Rules about polling hours, about voter registration, and about identification required to cast a vote differ from state to state, even for the presidential election. The variation in voting rules from one region to the next in the same nation is not something commonly tolerated in other countries—the United States is a notable exception. The strong tradition of states’ rights extends back to pre-revolutionary times when the then-­ colonies had even greater autonomy from one another than states maintain today. The constitution was written shortly after independence, and the primary motivation for the Revolutionary War and the independence movement was the disdain for centralized political power and the exertion of control from abroad. When forming the rules for the new national government of the constitutional republic, it is not surprising that the rights of states were paramount and federal authority was limited. More than 200 years later, the limited sovereignty of states in the union informs the nature of the limited sovereign government-to-government relationship between the United States and indigenous groups. 1.1  The Meaning of Sovereignty in the Context of Indigenous Peoples in the United States As a starting point in considering the importance of sovereignty to indigenous peoples in the United States, let us first consider the international perspective. On September 13, 2007, the United Nations General Assembly adopted the “Declaration on the Rights of Indigenous Peoples.” The vote was 143 states in favor, four against, and eleven abstentions. The four countries voting against the declaration were the United States, Canada, Australia, and New Zealand.3 These four dissenting countries have large and vocal indigenous populations so it is perhaps predictable that they would resist any article from the United Nations (UN) that would affect domestic policy toward people in their own countries. At the same time, because the indigenous populations are so large in these countries, it is especially damaging and, some would say, shocking, that such

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high-profile democracies chose not to acknowledge the rights of a large segment of their minority populations. Why did the US government vote against the UN declaration? The declaration does have language that is particularly troublesome for national governments, including references to returning land to natives and enforcing old treaties signed decades or centuries earlier. An additional problem is that the declaration requires that governments consult with and receive approval of indigenous peoples before engaging in development projects that will directly affect them. Still, the UN declaration does not have the weight of law in domestic courts, and therefore would not actually convey any real rights to indigenous peoples were it adopted. It is perhaps for this reason that Canada, Australia, and New Zealand all reversed their votes, and even the United States changed its vote on the declaration in 2010.4 President Obama’s statement regarding the reversal of the official US position reinforced other statements and official positions of the government with respect to indigenous peoples. It also made clear that, even though the United States was voting for the declaration, it would not necessarily actually implement it domestically.5 The statement reads, in part6: The United States supports the Declaration, which—while not legally binding or a statement of current international law—has both moral and political force. It expresses both the aspirations of indigenous peoples around the world and those of States in seeking to improve their relations with indigenous peoples. Most importantly, it expresses aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.

Therefore, while the United States did reverse its vote to one in the affirmative, it qualified its intent to such an extent as to nullify any practical usefulness indigenous peoples might have received from the adoption of the declaration. Nevertheless, even this limited acknowledgment of the rights of indigenous peoples was more than existed before. The UN Declaration on the Rights of Indigenous Peoples includes a long list of rights that no indigenous group in the United States will ever receive. Partial sovereignty does exist for some tribes in the United States, however, and it is valuable, at least in its potential. Recognized tribes with reservation land can engage in activities on their land that are not allowed

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in the states surrounding them, as long as federal laws are not violated. In this way, the sovereign power of a tribe is similar to that of a state. However, tribal sovereignty does have more limits than state sovereignty. To follow up on an earlier example, while states can set some rules regarding voting during elections for state and national offices, tribes cannot—polling stations for state and national elections are overseen by state elections offices.7 Education is another important example. Primary and secondary education curricula are overseen by state agencies and variations from the guidance has to be approved by the state.8 The depth or extent of sovereignty is an important issue. Biolsi9 delineates four types of tribal sovereignty existing in “indigenous space” that Native Americans have experienced. The first is tribal sovereignty within a Native homeland (a modern tribal government with its tribal citizenry on its reservation)[.] The second is territorially based rights to off-reservation resources that imply co-­management of (or perhaps even shared sovereignty over) overlapping territory by tribes, on the one hand, and the federal and state governments, on the other hand. Off-reservation fishing rights in the Pacific Northwest are a good example. The third is generic (supratribal) indigenous rights within an inclusive space that ultimately spans all of the territory of the contiguous United States, what I will call “national indigenous space” (I leave Alaska and Hawai‘i out of the picture in the interest of making the argument as directly as possible). The final one is hybrid indigenous space in which Indian people claim and exercise citizenship simultaneously in Native nations and in the United States.

As specifically applied to Native Americans, Biolsi contends here that while sovereignty can have territorial boundaries, it might also have additional, less locally geographic implications. Because the focus of my research in the book at hand is on land and sovereignty, territoriality is a prime concern. Jackson10 ponders territorial sovereignty this way: Do a people or a nation determine the territorial extent of their sovereign jurisdiction, or do bordered territorial jurisdictions define and delimit the sovereignty of peoples and nations? The doctrine of national self-­ determination prescribes the former, but the latter situation is closer to historical reality. Viewed historically, peoples or nations that shape territory in accordance with the doctrine of popular sovereignty are an exception rather than a commonplace. The received practice is to vest sovereignty in a bordered territory rather than a distinctive people or nation. Sovereignty is a

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territorial definition of political authority. Territoriality became the foundation principle of sovereign statehood in the early-modern period, and it has remained so ever since.

Jackson’s description fits the history of American Indians succinctly. Consider the pattern of ever-shrinking territories and reservation space. The land area was described by rigid borders and the people were forced inside these very specific places. From time to time, the size of the space was changed, forever made to be smaller, and the people were made to adjust to the redefined territory. The sovereignty that American Indians have is realized to its fullest allowable extent in a geographic space and, since the dimensions of the land were determined by the US government and not negotiated in any real way between two parties, the “bordered territorial jurisdictions” certainly appear to “delimit the sovereignty” of American Indians. 1.2   The Cultural Value of Self-determination Political sovereignty means little without land. If a group did have political sovereignty but no collective land, it is unclear exactly what the group would have sovereignty over. Cultural activities need a physical space in which to occur. The extent that the place is special, perhaps because of its historic and/or traditional significance to the group, enhances the cultural activity. Self-determination at a political group level requires sovereignty. Land, culture, self-determination, and sovereignty are intricately intertwined. Each is diminished without the others. Field11 puts it well: [S]overeignty means that federally recognized Indian peoples hold onto a sharply circumscribed but nevertheless always potentially valuable set of properties which include land and resources, as well as collective and individualized claims upon various parts of the US federal bureaucracy. Even Indians who do not currently live or were not born on reservations but are members of federally recognized tribes can return to those reservations and make claims to resources. By the same token, Indian individuals belonging to recognized tribes who do not live on reservations and do not intend to live there are still able to make claims on certain resources from the federal government, such as those having to do with education and health. These resources are certainly in the main quite substandard, but they are nevertheless significant. While the US state has since 1934 occasionally tried to renege on the sovereignty arrangements initiated by the Indian

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Reorganization Act, these arrangements have been maintained into the 21st century and Indian peoples are currently engaged in an often contradictory struggle to achieve both economic viability and revitalize their cultural identities on the remnant resources left to them on reservations. For these reasons, being an Indian in the United States has become an identity which is closely policed.

Federal recognition is not merely a means to gain transfers and benefits from a higher political authority, it is a way to have official acknowledgment of a tribe’s identity and therefore at least some measure of external agreement on the value of the tribe’s culture. Federal acknowledgment is at once a barrier to a cultural identity and a third party perspective confirmation of it.12 Tribes that have not received recognition at the federal level can still maintain their unique cultures, but their path is much more difficult because of the lack of resources they have as compared to recognized tribes and because of the possible public perception that they are not “legitimate” political entities, that they are not really Indians. Sovereignty itself, if connected to specific land, allows for the preservation of culture through many factors, including the maintenance of territorial integrity allowing for the succession of authorities across generations in the same space. Sovereignty then has significant value on any land, and in some places, on sacred land, its value is elevated. One example (of dozens or even hundreds) is the Black Hills. For centuries, some even say millennia, different groups of indigenous peoples have lived in the Black Hills, an area which comprises what is now parts of South Dakota and Wyoming. Early treaties preserved most of the Black Hills for tribes, but the discovery of gold and the general demand by white settlers for land shrank the reserved space considerably—a story all too common in the history of American Indians—until there was no reservation land left in the Black Hills at all. The Black Hills is sacred ground for many American Indians, a promised land, and as such it has a significance that surpasses any market or political value.13

2   Tribal Recognition Tribal recognition means the official acknowledgment by the US government that a tribal entity has political status as an indigenous group for legal purposes in the United States. The kind of political status a

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recognized tribe receives is similar to but less than that of a state within the United States. Tribes can also receive official recognition from individual states, but such recognition conveys no sovereignty at the federal level or guaranteed access to federal programs available to Indians. As such, federal recognition is more valuable to a tribe than state recognition. State recognition might convey some benefits, but it also might have costs, such as opposition to the political validity of a state-recognized (but federally unrecognized) tribe by tribes that have been federally acknowledged. One way for a tribe not already recognized by the government to seek federal acknowledgment is through congressional (or executive) action. This approach requires sponsorship either of a congressperson or of the executive. The other avenue is through the so-called Part 83 procedure for federal acknowledgment. A Department of the Interior press release from 2015 describes the situation as follows14: Federal acknowledgment establishes the U.S. Government as the trustee for Tribal lands and resources and makes Tribal members and governments eligible for federal budget assistance and program services. Since 1978, of the 566 federally recognized tribes, 17 have been recognized through the Part 83 process under Title 25 of the Code of Federal Regulations, Procedures for Establishing that an American Indian Group Exists as an Indian Tribe. The Department has denied acknowledgment to 34 other petitioning groups. Though far more tribes have been recognized through Executive or Congressional action, the Part 83 process is an important mechanism because it allows deliberative consideration of petitions by a staff of federal experts in anthropology, genealogy and history and ultimately allows for a decision by the Assistant Secretary-Indian Affairs. When petitioning groups that meet the criteria are officially “acknowledged” as Indian tribes, the U.S. Government accepts trusteeship of Tribal lands and natural resources. Tribal governments and members then become eligible to receive federal health, education, housing and other program and technical assistance.

The official position of the government is to funnel tribes seeking acknowledgment through Part 83. The federal commitment to the process is profound, culminating in revisions in 2015 that had taken several years to finalize. The following section discusses the process of federal recognition, followed by examples of state recognition. While the federal process tends to

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be more arduous than state processes, each carries the weight of their respective governments—federal recognition is more difficult to acquire but it is also more valuable. 2.1  Federal Recognition Any tribe with aspirations for self-determination and sovereignty seeks federal acknowledgment above all others. Not only does the official status of sovereign recognition open the door to a government-to-government relationship for the tribe, it also allows tribal members to gain access to federal programs reserved for Indians. Indeed, a person is defined as an “Indian” if they are a member of an Indian tribe, according to the American Indian Religious Freedom Act of 1978. It is important to note that the vast majority of Indian tribes never went through the process outlined as follows because, prior to 1978, there was no formal process. Tribes were simply acknowledged as an obvious political organ of their people because of their previous history with the US government.15 Those tribes that somehow missed out on this experience with federal authorities are subject to the acknowledgment process scrutiny. The following is taken from 25 CFR §83.11 “criteria for acknowledgment as a federally recognized Indian tribe.”16 It is included here in its entirety despite its length because of the significance of federal tribal recognition for all aspects of sovereignty and collective land ownership. The criteria for acknowledgment as a federally recognized Indian tribe are delineated in paragraphs (a) through (g) of this section. (a) Indian entity identification. The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900. Evidence that the group’s character as an Indian entity has from time to time been denied will not be considered to be conclusive evidence that this criterion has not been met. Evidence to be relied upon in determining a group’s Indian identity may include one or a combination of the following, as well as other evidence of identification. (1) Identification as an Indian entity by Federal authorities. (2) Relationships with State governments based on identification of the group as Indian. (3) Dealings with a county, parish, or other local government in a relationship based on the group’s Indian identity.

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(4) Identification as an Indian entity by anthropologists, historians, and/ or other scholars. (5) Identification as an Indian entity in newspapers and books. (6) Identification as an Indian entity in relationships with Indian tribes or with national, regional, or state Indian organizations. (7) Identification as an Indian entity by the petitioner itself. (b) Community. The petitioner comprises a distinct community and demonstrates that it existed as a community from 1900 until the present. Distinct community means an entity with consistent interactions and significant social relationships within its membership and whose members are differentiated from and distinct from non-members. Distinct community must be understood flexibly in the context of the history, geography, culture, and social organization of the entity. The petitioner may demonstrate that it meets this criterion by providing evidence for known adult members or by providing evidence of relationships of a reliable, statistically significant sample of known adult members. (1) The petitioner may demonstrate that it meets this criterion at a given point in time by some combination of two or more of the following forms of evidence or by other evidence to show that a significant and meaningful portion of the petitioner’s members constituted a distinct community at a given point in time: (i) Rates or patterns of known marriages within the entity, or, as may be culturally required, known patterned out-marriages; (ii) Social relationships connecting individual members; (iii) Rates or patterns of informal social interaction that exist broadly among the members of the entity; (iv) Shared or cooperative labor or other economic activity among members; (v) Strong patterns of discrimination or other social distinctions by non-members; (vi) Shared sacred or secular ritual activity; (vii) Cultural patterns shared among a portion of the entity that are different from those of the non-Indian populations with whom it interacts. These patterns must function as more than a symbolic identification of the group as Indian. They may include, but are not limited to, language, kinship organization or system, religious beliefs or practices, and ceremonies; (viii) The persistence of a collective identity continuously over a period of more than 50 years, notwithstanding any absence of or changes in name;

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(ix) Land set aside by a State for the petitioner, or collective ancestors of the petitioner, that was actively used by the community for that time period; (x) Children of members from a geographic area were placed in Indian boarding schools or other Indian educational institutions, to the extent that supporting evidence documents the community claimed; or (xi) A demonstration of political influence under the criterion in §83.11(c)(1) will be evidence for demonstrating distinct community for that same time period. (2) The petitioner will be considered to have provided more than sufficient evidence to demonstrate distinct community and political authority under §83.11(c) at a given point in time if the evidence demonstrates any one of the following: (i) More than 50 percent of the members reside in a geographical area exclusively or almost exclusively composed of members of the entity, and the balance of the entity maintains consistent interaction with some members residing in that area; (ii) At least 50 percent of the members of the entity were married to other members of the entity; (iii) At least 50 percent of the entity members maintain distinct cultural patterns such as, but not limited to, language, kinship system, religious beliefs and practices, or ceremonies; (iv) There are distinct community social institutions encompassing at least 50 percent of the members, such as kinship organizations, formal or informal economic cooperation, or religious organizations; or (v) The petitioner has met the criterion in §83.11(c) using evidence described in §83.11(c)(2). (c) Political influence or authority. The petitioner has maintained political influence or authority over its members as an autonomous entity from 1900 until the present. Political influence or authority means the entity uses a council, leadership, internal process, or other mechanism as a means of influencing or controlling the behavior of its members in significant respects, making decisions for the entity which substantially affect its members, and/or representing the entity in dealing with outsiders in matters of consequence. This process is to be understood flexibly in the context of the history, culture, and social organization of the entity.

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(1) The petitioner may demonstrate that it meets this criterion by some combination of two or more of the following forms of evidence or by other evidence that the petitioner had political influence or authority over its members as an autonomous entity: (i) The entity is able to mobilize significant numbers of members and significant resources from its members for entity purposes. (ii) Many of the membership consider issues acted upon or actions taken by entity leaders or governing bodies to be of importance. (iii) There is widespread knowledge, communication, or involvement in political processes by many of the entity’s members. (iv) The entity meets the criterion in §83.11(b) at greater than or equal to the percentages set forth under §83.11(b)(2). (v) There are internal conflicts that show controversy over valued entity goals, properties, policies, processes, or decisions. (vi) The government of a federally recognized Indian tribe has a significant relationship with the leaders or the governing body of the petitioner. (vii) Land set aside by a State for petitioner, or collective ancestors of the petitioner, that is actively used for that time period. (viii) There is a continuous line of entity leaders and a means of selection or acquiescence by a significant number of the entity’s members. (2) The petitioner will be considered to have provided sufficient evidence of political influence or authority at a given point in time if the evidence demonstrates any one of the following: (i) Entity leaders or other internal mechanisms exist or existed that: (A) Allocate entity resources such as land, residence rights, and the like on a consistent basis; (B) Settle disputes between members or subgroups by mediation or other means on a regular basis; (C) Exert strong influence on the behavior of individual members, such as the establishment or maintenance of norms or the enforcement of sanctions to direct or control behavior; or (D) Organize or influence economic subsistence activities among the members, including shared or cooperative labor. (ii) The petitioner has met the requirements in §83.11(b)(2) at a given time. (d) Governing document. The petitioner must provide:

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(1) A copy of the entity’s present governing document, including its membership criteria; or (2) In the absence of a governing document, a written statement describing in full its membership criteria and current governing procedures. (e) Descent. The petitioner’s membership consists of individuals who descend from a historical Indian tribe (or from historical Indian tribes that combined and functioned as a single autonomous political entity). (1) The petitioner satisfies this criterion by demonstrating that the petitioner’s members descend from a tribal roll directed by Congress or prepared by the Secretary on a descendancy basis for purposes of distributing claims money, providing allotments, providing a tribal census, or other purposes, unless significant countervailing evidence establishes that the tribal roll is substantively inaccurate; or (2) If no tribal roll was directed by Congress or prepared by the Secretary, the petitioner satisfies this criterion by demonstrating descent from a historical Indian tribe (or from historical Indian tribes that combined and functioned as a single autonomous political entity) with sufficient evidence including, but not limited to, one or a combination of the following identifying present members or ancestors of present members as being descendants of a historical Indian tribe (or of historical Indian tribes that combined and functioned as a single autonomous political entity): (i) Federal, State, or other official records or evidence; (ii) Church, school, or other similar enrollment records; (iii) Records created by historians and anthropologists in historical times; (iv) Affidavits of recognition by tribal elders, leaders, or the tribal governing body with personal knowledge; and (v) Other records or evidence. (f) Unique membership. The petitioner’s membership is composed principally of persons who are not members of any federally recognized Indian tribe. However, a petitioner may be acknowledged even if its membership is composed principally of persons whose names have appeared on rolls of, or who have been otherwise associated with, a federally recognized Indian tribe, if the petitioner demonstrates that: (1) It has functioned as a separate politically autonomous community by satisfying criteria in paragraphs (b) and (c) of this section; and (2) Its members have provided written confirmation of their membership in the petitioner.

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(g) Congressional termination. Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship. The Department must determine whether the petitioner meets this criterion, and the petitioner is not required to submit evidence to meet it.

Each of the sections in the process presents an obstacle to recognition. The government has an interest in legitimacy, naturally, and so do tribes that are already officially acknowledged. As discussed in greater detail in the next section, some tribes have been vocal opponents to recognition processes adopted by individual states because, even though state recognition is subordinate to federal recognition, it nevertheless provides some measure of legitimacy to tribes that, presumably, have not been able to achieve federal acknowledgment. The latter process, then, is meant to be, if not difficult, comprehensive. The Office of Federal Acknowledgment does publish a guidelines book and has many useful resources on its website to assist in preparing documents.17 The most important and challenging criteria are discussed next. Indian Entity Identification  The criteria of Indian entity identification certainly seem reasonable on the surface. It is the very characteristic that acknowledgment seeks to identify. Given the seven different evidences that can be used to support identification, the hurdle is quite low. The binding constraint is the petitioner has to have been identified in this way on a “substantially continuous basis since 1900.” While this requirement might seem strict, the previous requirement prior to the recent revision was even longer (e.g., continuously from 1789, or first contact). The difference between the starting point in the past being 1900 or some earlier point might not have any practical impact in the sense that tribes seeking acknowledgment have generally been in existence since well before 1900.18 Community  The community criteria highlight a fundamental difficulty tribes face when seeking federal recognition. To pass the community test, they must have existed separately from the rest of US society to some degree for more than 100 years, without official tribal status. Given the vacillating federal policy over this time including the occasional decades-­ long assimilation campaigns, it is remarkable that a tribe could have maintained its community in the absence of external confirmation of their existence—it would have required extreme verisimilitude.

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Political Influence or Authority As with the community standard, a separateness, or isolation, is presumed in the requirement of political influence or authority. In fact, some of the specific criteria for both requirements overlap (§83.11(b)(2) and §83.11(c)(2)(ii)). Still, political organization that has influence is a higher standard than the passive existence of a community. Governing Document A governing document can be created in a straight-forward way by any tribal entity. The real barrier here is resources and the technical ability to produce a satisfactory document. Guidance is available from the Office of Federal Acknowledgement, and a tribe, if it has sufficient financial resources, could hire a lawyer to assist in the creation of suitable documents. Fulfilling this requirement is not dependent on the history of the tribe. Descent  It is with the section on descent that the criteria turn specifically racial. While no specific blood logic is explicitly mentioned, the requirement that the “petitioner’s membership consists of individuals who descend from a historical Indian tribe” clearly has in mind a blood quantum notion. Blood quantum requirements for tribal membership is a contentious issue (discussed in (b)(iii) below) and, while it might not be an unreasonable requirement, seen in a certain light, it does place Indians in a minority category like no other in the United States. More generally, any federal definition of what in “Indian” is smacks of both colonialism and paternalism. There might not be a large a variety of alternative approaches available. After all, the entire intention of federal acknowledgment of tribe is to identify them as having certain characteristics related to historical habitation in the borders of the United States. If there is no component of descent, there is no history to acknowledge. Unique Membership and Congressional Termination  These final two criteria are largely technical, although they might certainly create binding constraints on some particular entities.

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Should then a tribe seeking acknowledgment follow the Part 83 process or seek congressional action instead? It could very well be the case that the tribe itself does not get to decide. The path of congressional action, while appearing to be much more streamlined and requiring far less documentation, is only available to tribes who can somehow locate a sponsor in congress who is willing to write a bill and shepherd it through congressional approval. Any tribe who could take this approach would surely choose it, despite the desire of the Secretary of the Interior to have tribes follow the Part 83 procedure. Each tribe will choose the avenue it thinks is most likely to end in success. According to the Department of the Interior press release from 2015, only one in three applicants through the Part 83 process has been successful—a discouraging statistic for hopeful tribes. 2.2  State Recognition Many tribes have not received federal acknowledgment. In some cases, the tribes have demonstrably been in the area that is now the United States for centuries. For example, tribes in Virginia have not been recognized because they do not have the necessary records of their presence to support an application. The historical records no longer exist because they were destroyed in the early twentieth century in response to the Racial Integrity Act of 1924, which read, in part, that only “white” and “colored” people existed in Virginia. Additionally, records such as birth certificates of living Indians at the time were altered to indicate that their race was “colored” instead of American Indian.19 Although these facts are well known and documented, the consequence of the destruction of the records continues to be a lack of federal recognition due to an absence of documentation. The Pamunkey Nation of Virginia became the 567th federal acknowledged tribe in 2015, but the recognition was quickly put on hold when a California activist group, Stand Up for California, filed a request for reconsideration to the Interior Board of Indian Appeal in October of 2015. The stated concern of the group was that the Pamunkey application failed to meet the standards of recognition, and Stand Up for California was worried that, if the tribe were to be recognized, a precedent of lower standards would be established, allowing many other tribes to quickly receive acknowledgment.20 While this challenge was set aside in 2016 and the tribe did receive recognition,21 this incident highlights the resistance to federal recognition tribes sometimes face. As a result, tribes

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often seek the recognition of the state government they reside in if federal recognition appears to be elusive. And, state recognition satisfies §83.11(a) (2), suggesting state recognition is a useful stepping stone to eventual federal recognition. The US government has recognized 567 tribes (as of 2016) while states have recognized fewer than 100. Koenig and Stein22 report that 62 tribes have been recognized by states, and that sixteen states have recognized tribes and a further five states have recognition processes in place. What state recognition means to a tribe, in a practical sense, varies considerably from one state to the next. For example, state recognition generally does not exempt tribes from state law in the way that federal recognition does, and it often does not convey land to a tribe. As a result, state recognition does not engender the same level or sense of sovereignty that comes with federal recognition. It does, however, establish a government-to-­ government relationship between the state and the tribe, and it satisfies the common prerequisite for state aid and services to Indian peoples. State recognition of tribes reaches back into colonial times when some colonies (Virginia, New York, and Connecticut, for example) had political relationships with the leaders of tribes. At independence, federal authority superseded colonial relationships with individual tribes, and federal authority has held sway since then. Recently, individual states have exercised legal action within their specified parameters more frequently and forcefully by taking up state-level tribal recognition. The authority of states to recognize Indian tribes comes essentially from states not superseding federal authority. As the Founding Fathers proclaimed, the genius of the federalist system is its flexibility. Since Congress is generally accepted as having plenary power over Indians, tribal law treatises, cases and articles explain that state authority to interact with and recognize tribes necessarily has its basis in a delegation of federal powers to the state. This is related to the general theory that federal laws involving tribes preempt state laws, which is in-turn grounded in the historic paradigm of federal supremacy being necessary to protect tribes from state involvement in tribal affairs. However, where tribes do not need to be “protected” from the states (as when tribes have asked or applied for state recognition), state authority is arguably not preempted by the federal government. In such situations, this is because state action does not conflict with the federal government’s predominant goal of furthering tribal self-governance.23

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The Koenig and Stein go on to say that the 10th Amendment is a potential explicit source of state authority in this matter, insofar as it grants powers to the states that are not explicitly reserved by the federal government. State recognition would seem to fit this category as there would be no reason for the federal government to grant state recognition to a tribe, and state recognition would not infringe on federal recognition. Further still, there is ample evidence that federal law is not in conflict with state recognition because state recognition is sometimes mentioned in federal law as a way of verifying eligibility of people to participate in federal programs reserved for Indians. There are four types of federal recognition to stand in contrast to the various types of state recognition. The four federal types are24: Administrative recognition. This is the Bureau of Indian Affairs (BIA) process outlined above, the Title 25, part 83 process. Legislative recognition. An act of congress, legitimized by the Constitution’s Commerce Clause. Judicial recognition. A finding by a judge in a federal court proceeding. This pathway is not often used, and is invoked typically in the case where the BIA is unable to make a decision on tribal acknowledgment in a timely fashion and the court needs to proceed in a matter where it is critical to know whether or not a tribal entity is an Indian tribe for federal purposes. Federal Common Law recognition. “Federal common law recognition means only that the tribe is recognized by the courts as a tribal entity for limited purposes, such as federal court jurisdiction.”25 This fourth type, then, is a lesser accord, not conveying the same level of sovereignty as the others. However, common law recognition might satisfy the §83.11(a)(2) requirement and as such can be a valuable step in the federal recognition process. At the state level, there are also four types of recognition. Again, from Koenig and Stein (2008), the four types are as follows: State Law recognition. Like federal legislative recognition, state law recognition requires that a law be passed through the state’s legislative body or bodies and signed into law by the governor.

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Administrative recognition. In this case, the state designates an agency to be in charge of establishing criteria and a process for certifying tribal entities and carrying that process out. Legislative recognition. This process of recognition is similar to state law recognition but often does not carry the weight of law and is instead legislative action without new legislation not a governor’s signature. Rather, it is a resolution of the legislature which is less formal than the first two processes. Executive recognition. This type of recognition comes from the governor’s office (or other state agency) declaring an entity to be recognized. In addition to the stepping stone advantage toward federal recognition, state recognition of a tribal entity can provide other genuine, tangible benefits. For example, seven states have reservations for state-recognized tribes. Hawai‘i maintains land in trust for the benefit of Native Hawaiians. The existence of state-recognized tribes, while it does not pose a conflict with federal processes, is controversial for other reasons. For example, tribes that have been federally acknowledged sometimes object to the state-level recognition of other tribes. The Cherokee Nation published a pamphlet on this subject stating that, among other things, state recognition violates the US Constitution.26 While this claim is not substantiated by case law and is refuted by many legal scholars, the publication argues generally that the existence of state recognition gives legitimacy to “fake groups” and thereby harms “valid tribes,” meaning federally recognized ones. Part of their reasoning goes like this: Unfortunately, the general public is often misled into thinking that these groups are real tribes and their members get hired to teach “Indian culture” in schools and at festivals. Many of these fake tribes allow membership if a person simply “believes in their heart” that they are Indian. Fake tribes and individuals with unverifiable ties to Native American citizenship often claim to be passing on cultural knowledge and traditional arts. But the reality is these groups and individuals misrepresent true Indian culture and identity. False tribes distort genuine Indian history to explain their very existence, and typically members know little or nothing about the true culture they claim to represent.27

Tribal acknowledgment, and the political sovereignty it conveys, can therefore be a signal to non-natives that a tribe (or tribal member) is a

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legitimate representative of a very particular cultural history and ancestry. Sheffield28 tells us that tribes benefit in three ways from federal recognition: self-government, eligibility for federal assistance, and, citing Blackwell and Mehaffey,29 from the “prestige and honor in establishing the government-­to-government relationship with the United States and other government entities, … an expression of their Indian pride.” I would add to that statement that Indian tribes and individuals also receive dignity and respect through the third party acknowledgment of both their existence and their importance in the United States and the world.

3   Tribal Membership Tribes maintain rolls of members. The rolls have many important uses, one of which being to affirm that an individual on the roll is an Indian for many federal definitional purposes, although not in every case. Federal definitions of who qualifies as an individual Indian are surprisingly varied in different government departments and legislations. Federal tribal acknowledgment and tribal membership requirements are separate issues. The US government does not have any uniform rule for tribes to apply to their own tribal membership requirements,30 leaving enrollment decisions mainly up to the tribes themselves. There are many similarities in tribal membership requirements which often include demonstrated descendancy from a person already on the tribal roll, as well as additional racial requirements such as limits on the minimum fractional blood quantum. Because these two issues are the most common in tribal enrollment requirements, each is surveyed below. 3.1  Blood Quantum One of the earliest official documents detailing a blood quantum requirement that had a major impact on Indians was “Declaration of Policy in the Administration of Indian Affairs” in 1917.31 Additionally, the Indian Reorganization Act (1934) included a blood quantum requirement to establish membership. Although the concept of blood quantum was not historically in use by tribes, it was adopted as a measure by example of these declarations and legislative actions of the federal government as tribes wrote new constitutions consistent with the intent of the Indian Reorganization Act. Prior to that, a community standard was generally observed—a person was an Indian if they were acknowledged by the

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community to be an Indian.32 The imposition of blood quantum has proven to be a resilient metric. Still widely in use by tribes today, the requirement ranges from ½ (one parent is full-blooded) to 1/32 (one great-great grandparent is full-blooded), with the common measurement resting between 1/4 and 1/16.33 In order to prove any measure of blood quantum, the person in question must produce legal documents (birth certificates, for example) to establish their lineage and connection to the tribe. Blood quantum, or blood logics, is especially controversial because it is seen by many as a colonial imposition on a conquered people. Tribes have their own customs of lineage and association which did not necessarily flow clearly along a bloodline descendancy. Kauanui,34 in discussing the ½ blood quantum requirement to qualify as a Native Hawaiian, states that blood “racialization” is a way of making cultural identity measurable and dilute. Kauanui goes on to write: Many Hawaiians and non-Hawaiians have become invested in blood quantum as proof of indigeneity and rely on the fractionalizing measurements of one’s “blood amount” as a marker for cultural orientation and identity, even though the racial categories this logic depends on are the product of relatively recent colonial taxonomies. These concerns with “measuring up” reflect a growing anxiety among Hawaiians that is all too common. In both day-to-day and legal contexts, blood is often evoked to stand in for race, indigeneity, and nationhood—and it can be used to mean any or all of these depending on the specific political agenda of any given moment.35 As a colonial imposition, the blood quantum model of identity is a demeaning alternative to Hawaiian kinship and genealogy as inclusive and expansive models of belonging. Moreover, governmental uses of the blood quantum mode aim to alter and displace the indigenous form of identification.36

Sheffield suggests that the use of blood quantum measures became the focus of identifying who was or was not an Indian because of the General Allotment Act (1887) and its requirement of identity to be eligible for an allotment. She writes, In the early nineteenth century, an “Indian” was an individual with some Indian blood or one accepted as an Indian by his or her tribe. The use of terms concerning “blood,” such as “full-blood,” “mixed-blood,” “blood

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quantum,” and related terms such as “half-breed,” are in common legal usage because they are well understood even if without scientific basis.37

Shepherd, discussing the Hualapai people, finds that the use of blood quantum requirements for tribal membership had the effect of excluding from tribal rolls descendants that would have otherwise been included had traditional methods of defining community been used. The federal government capitalized on the pervasiveness of [the use of the terms half-blood and full-blood] and used blood quantum to determine membership within a Native community. It implemented tribal census rolls and guestimated [sic] whether or not the people it counted were full- or half-blood. It then stipulated that tribal members had to have a particular percentage of “blood” in them to remain within the community and to receive rations and other resources. By the early twentieth century many Indian nations had adopted blood quantum to define their membership rather than use citizenship, cultural identity, kinship, or other traits.38

Blood quantum requirements also show up in the Alaska Native Claims Settlement Act (1971) as a way to define who a Native Alaskan is. “Native” means a citizen of the United States who is a person of one-fourth degree or more Alaska Indian (including Tsimshian Indians not enrolled in the Metlaktla Indian Community) Eskimo, or Aleut blood, or combination thereof. The term includes any Native as so defined either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or Native group of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any village or group. Any decision of the Secretary regarding eligibility for enrollment shall be final39[.]

Some form of blood quantum logic, then, has been applied to all three aggregated groups of people studied in this book—American Indians, Alaska Natives, and Native Hawaiians. In no case was a blood logic measure the primary form of tribal identification generally in use for any of these groups until the US government got involved. Because of the federal use of blood factors as identification in treaty, law, and statute, blood quantum, over time, came into common use by Natives and non-­ Natives alike.

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3.2  Descendancy and Residency Some tribes do not specify a blood quantum and instead refer to lineal descent, meaning a person can show that they descended directly from someone on the historic tribal rolls. This is the same basic concept as a blood quantum measure—one still must show they are the ultimate progeny of a member of the tribe. The difference is the level of acceptable dilution. In the blood quantum case, it is exact; in lineal descendancy, it is not. In fact, it is quite possible that a person on a tribal roll from some time ago might not have any “Indian blood” at all, making the effective dilution zero. One example of this is the Cherokee practice of diplomacy. In the eighteenth century, women often conducted diplomacy through marriage to outsiders, such as traders. Cherokee society is matriarchal, so the marriage to a Cherokee woman gave the outsider standing in the woman’s clan. Adoption into the clan was another avenue.40 Another example from the nineteenth century is escaped slaves and freedmen who sometimes joined Indian communities. These entrants into tribes would not meet any blood quantum requirement upon their arrival but they were nevertheless members of the community. The definition of tribal membership is included in each tribe’s constitution, and there is a slow movement toward amending requirements to low blood quantum levels or to descendancy alone. This evolution is perhaps similar to the way that reservation residency has mostly been eliminated as a requirement for tribal membership whereas in the past it was common. The idea of a residency requirement is that a tribal member would remain on reservation land and help to work and maintain it. Because of legislation (like the Indian Relocation Act of 1956) and relocation of tribes over time, the residency requirement has been dropped as a membership requirement by nearly every tribe.41 As tribal societies change, some members move away and other members intermarry with other groups. Maintaining a standard that was written many decades ago when society was quite different is not practical for many Indian communities. Indeed, strict requirements of residency or blood logic have been used recently as a way of removing, or disenrolling, members from tribal rolls.

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3.3  Termination and Disenrollment Being federally recognized is not always the end in a tribe’s journey to political status. The US government reserves the right to revoke the status of a tribe at any time, if it sees fit, and has often done so in the past. Historically, House Concurrent Resolution No. 108 (1953) and Public Law 280 (1953) were significant blows to sovereignty and the recognition of tribes. These laws were passed during the “termination” era, an Eisenhower administration response to the poor conditions that persisted on reservations, first brought to public consciousness by the Meriam Report (1928) and initially addressed by the Indian Reorganization Act (1934). The “termination era,” according to Prucha,42 was operationalized by the federal government through a four-pronged approach: 1. Repealing laws that set the Indians apart from other citizens and thereby ending certain restrictions that were deemed discriminatory; 2. Ending services provided by the Bureau of Indian Affairs for Indians by transferring responsibility for those services to other agencies of the federal government, to state and local governments, to private agencies, or to tribes; 3. Freeing individual Indians from federal supervision and guardianship and removing them from restrictions and disabilities applicable only to Indians; 4. Terminating federal responsibility for the affairs of specified tribes.43

While these policies of “termination” lasted only a short while and, after receiving resistance in congress by 1956, were completely exhausted fifteen years later during the Johnson administration, they caused significant damage. Following Public Law 280, congress terminated the trust relationship the federal government had with 109 tribes.44 Beyond the termination of the trust relationship itself, the affected tribes had to divest of their assets and land, giving up their reservations. In other words, the total loss of autonomy and sovereignty. Although the number of Indians terminated was only about 3% of the total federally recognized individuals at the time, and about 3% of tribal land was withdrawn, the psychological effects on Indians were profound and the fear of further termination remained.45 Many of the tribes terminated during the era regained their status, primarily through court battles. Some tribes were able to delay the official termination of their status until the policy itself was ended, while others successfully defended their tribal entities against termination.

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Unfortunately, several tribes did not regain their status. Only an act of congress can reinstate them now.46 On an individual level, tribal members sometimes face disenrollment by their tribes. The cause for disenrollment is typically lack of evidence that ancestors appear on tribal rolls or were included by mistake or incorrectly in the first place. For example, in 2015 a tribal court of the Confederated Tribes of the Grand Ronde disenrolled dozens of its members after an audit in 2013 showed that their common ancestor had originally been enrolled by mistake. That ancestor, Chief Tumulth, was one of the original signatories of the 1855 treaty that created the tribe’s reservation. However, Chief Tumulth never lived on the reservation itself, which was a condition of tribal enrollment at the time. Therefore, all of Tumulth’s ancestors were disenrolled on the basis that they had been included by mistake.47 The loss of tribal membership not only removes tangible financial benefits from the tribe and federal programs, but it extinguishes a large part of the identities of the individuals who are cast out. Ultimately, the decision was reversed on a technicality by a tribal appeals court, but the specter of disenrollment still hangs over the heads of those reinstated and has caused animosity between some members of the tribe.48 Another example of disenrollment is the removal of freedmen descendants from Cherokee rolls. Many Indian nations owned slaves, and the Cherokee Nation owned nearly as many as the other Five Tribes49 combined, according to the 1860 Census. Cherokee, Choctaw, Creek, and Chickasaw nations all owned slaves, while the Seminole people never did. The 1866 Treaty with the Cherokee50 ended the hostilities of the Civil War and provided that all slaves freed by the end of the war and all “free colored persons” living in the Cherokee Nation (or returning within six months) would have all the rights of Native Cherokees. It is this language from the treaty that is the basis for disenrolling freedmen in present times—that “all the rights of Native Cherokees” did not include citizenship in the Cherokee Nation. After the Cherokee citizenship of freedmen was reaffirmed by a Cherokee tribal court decision in 2006, a group of Cherokee began writing a referendum to amend the Dawes Rolls ancestral inclusion, which would result in the removal of more than 2500 black Cherokees from the Cherokee Nation.51 The referendum vote passed. Of the process, Russell writes: This engineered election is used to argue that the Cherokee Nation has voted to abrogate a treaty with the U.S., something an Indian nation can do

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just like any other nation if it does not mind abandoning the moral high ground of being the aggrieved party in every other abrogation of an Indian treaty. One of the whitest Indian nations by blood is now litigating to expel its black citizens, many of whom have more Cherokee blood than the white citizens so eager to see them expelled. This assertion of sovereignty has managed to alienate one of the Indians’ natural allies, the Congressional Black Caucus. The attempt to disenroll the Cherokee freedmen is now pending in U.S. courts, where any assertion of power to decide the case comes in derogation of Cherokee sovereignty. But what were the Cherokee freedmen to do after the Cherokee courts failed to protect them?52

Disenrollment accelerated after the 1978 ruling in Santa Clara Pueblo v. Martinez, which stated that the Indian Civil Rights Act (1968) could not be invoked to challenge tribal disenrollment decisions in federal court.53 Any argument in court, then, has to find another basis. Russell argues that, “After Santa Clara, disenrollment became a robust and unreviewable tool to settle political scores or to give expression to racism or to simply acquire a greater share of limited tribal resources.”54 While the practice of removing some members from tribal rolls can be seen as an exercise in a tribe’s sovereignty, it can also be seen in some instances as a harrowing tool of power and wealth accumulation.

4   Sovereign Land I have argued that political sovereignty in isolation is of very limited value. For sovereignty to have meaning in any sense—politically, culturally, economically, and philosophically—it has to be connected to land held by a collective entity. Land provides a physical place for a people to reside, in the present and over time, where their history and culture can be remembered, experienced, nurtured, and celebrated. I will discuss the economic development of land in later chapters. For now, I survey briefly the governing agency of sovereign bodies over their land.

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5   Organizations Governing Land Use There are four primary groups with standing in relations to land use in the United States that are of interest for the topics considered in this book: Tribal governments, the federal government, state governments, and private land owners. In some cases, there is overlapping jurisdiction, such as is the case in Alaska with respect to hunting and fishing. There are many localities in Alaska where all four groups (or departments or divisions of the groups) have legitimate interests in influencing land use regulations for hunting and fishing. In most cases, law or adjudication has clarified jurisdictional conflict, but they are forever in flux by the very nature of the evolution of the law and the activities of people. 5.1  Tribal Governments At this writing, there are 567 federally acknowledged tribes that have a government-to-government relationship with the United States, implying they all, individually, have governments. Tribal governments vary considerably in structure, function, and activity. Of the 567 tribes, 229 of them are villages in Alaska that do not hold land that constitutes Indian Country, meaning they do not have sovereign land. Sovereign Indian land, where it exists, is managed by the local tribal government. It is important to remember, however, that, while tribal governments do have extensive powers (to police their lands, tax their citizens, etc.), their power is ultimately limited by the trust relationship Indians have with the federal government and the fact that they occupy the land itself in a possessory fashion that, due to the exclusive and plenary power of the United States, can be extinguished at any time by congressional action. As long as federal law is not violated, tribal government decisions generally stand. 5.2   Alaska Native Regional Corporations Alaska Native Regional Corporations, created by the Alaska Native Claims Settlement Act (1971), have no governance or political land management authority. Rather, these corporations manage fee simple title to the land they own, which includes village corporation land. That is, the regional corporations have surface and subsurface rights to the land they own and they also have subsurface rights to the land owned by village corporations in their region. The important distinction here is that none of this land, at

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the regional or village level, is sovereign land held collectively by a tribal entity. All of the land owned by these corporations is privately, not collectively, held. 5.3  Hawaiian Home Lands Hawaiian Home Lands are 200,000 acres of land held in trust for the use and welfare Native Hawaiians (and others). The trust land was codified by the Hawaii Statehood Act (1959), but it was originally established by the Hawaiian Homes Commission Act (1921). This land is now managed by the Department of Hawaiian Home Lands, which is a state agency. With no Native Hawaiian group yet acknowledged by the US government, there is no tribal government for Native Hawaiians to have a government-­ to-­government relationship with the United States and, consequently, there is no sovereign land in Hawai‘i for Natives. Recent developments indicate a new willingness on the part of the federal government to establish a relationship with a Native Hawaiian entity similar to what it has with Indian tribes, but that has not yet occurred at this writing.

6   Cultural Sovereignty In this chapter the discussions have been about political sovereignty as a theoretical, legal, and practical matter, along with specific issues related to sovereignty, such as tribal recognition and membership. The importance and value of sovereignty have been firmly established. One issue that has yet to be raised is whether there is an alternative to political sovereignty, other than its absence. If sovereignty in the political sense is difficult or impossible for some indigenous groups to achieve through the existing acknowledgment process, do they have an alternative? In fact, it is not beyond the realm of possibilities that tribes with existing sovereign arrangements might find that alternate arrangements are better. Coffey and Tsosie55 observe that the territorial boundaries of Indian Country have become somewhat ambiguous as a result of the General Allotment Act and the resultant existence of non-Indian-owned land inside of the geographic boundaries of some reservations. In federal law, the concept of “diminishment” (the diminishment doctrine) means that the external boundaries of a reservation have actually been diminished by the allotment sale of land, implying that Indian institutions do not have jurisdiction where this has occurred because the diminished land is no

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longer Indian Country. Besides diminishment, tribal sovereignty (authority) is lessened by its subordinate nature—federal law has greater standing than tribal law. “Chief Justice John Marshall’s vision of tribal sovereignty recognized the tribal governments as essentially autonomous, although subject to an overriding federal authority.”56 As a technical matter, later court rulings state that Indian nations are not bound by federal law or even the Constitution except that congress has made them subject to it. In other words, tribes are not inherently bound by US laws, but the fact that they are dominated by the United States, that they are dependent upon the United States, subjects them to the US Constitution and federal law. Indian nations are “domestic dependent nations,” a concept that has its roots in the so-called Marshall Trilogy—three seminal cases in Indian-­ federal relations, including Johnson v. M’Intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). Being a nation within a nation is a limiting premise. Given that it is unlikely that tribes will be able to expand their political sovereignty in any meaningful way within the United States, Coffey and Tsosie suggest that an alternate approach be pursued—constructing a doctrine of cultural sovereignty. Political sovereignty (and its defense) amounts to legal battles about geographic territory that a tribe can have authority over. In addition, however, tribes are also concerned with the preservation of their culture, their language, history, art, ceremonies, and way of life. The focus in cultural preservation so far has been on political sovereignty as the means to maintain culture by preserving a physical space of exclusive control. But this physical space of political control, even if achieved, is limited and bounded by the supreme authority of the United States. Another way to preserve culture, Coffey and Tsosie argue, perhaps even a better way, is to construct a doctrine of cultural sovereignty. The primary advantage to this approach is that it comes from within the Native people themselves, whereas political sovereignty is defined by others outside of the tribe. Constructing a doctrine of cultural sovereignty from within requires Native peoples to undertake at least three separate inquiries. The first involves the question of where Native peoples should “locate” cultural sovereignty within their existing social structures and order. The second involves the question of how we should conceptualize the relationship between Native peoples’ political and cultural sovereignty. The third inquiry is perhaps the most abstract: that is, to probe the philosophical core of our belief systems as Native peoples and create our own appraisal of what “sovereignty” means,

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what “autonomy” means, and what rights, duties and responsibilities are entailed in our relationships. These relationships extend from ourselves to each other, to our Ancestors, and to our future generations.57

Many aspects of culture probably can be maintained through a cultural sovereignty approach. Its many advantages are delineated by the authors. The one issue that remains difficult to address is the importance of the land itself to Indians. The authors realize this and discuss it: The central and overriding aspect of traditional epistemologies concerns the relationship between Indian people and the land. That relationship is a prominent feature of much of the scholarship and literature generated by Native scholars. […] This relationship between land and Native people transcends the idea of land as a means of physical survival or subsistence. Land also ensures the cultural survival of Indian people as distinct groups and nations.58

Without land, cultural sovereignty might be incomplete. Is it enough to acquire land without political sovereignty? Can the private ownership of land satisfy the needs and requirements of cultural sovereignty? The private ownership of land does not mean that the owner can do anything at all with the land. A property right is a bundle of rights or, essentially, a list of things that can be done on—or can be excluded from— the property. In the absence of political sovereignty that defines a specific geographic space and conveys authority over it to a tribe, the tribe is subject to the rules and laws of the authority that is in charge—the city, county, state, and/or federal governments. If, for example, a tribal ceremony were to violate a state law, then its practice would be forbidden on private land that carried no political sovereignty. Certainly specific exceptions can be sought, and the authors discuss the legal attempt to enforce treaties relating to issues such as hunting and fishing priorities. Still, it would be a mistake to yield political sovereignty in favor of cultural sovereignty without guarantees in place for essential cultural activities, and the authors do not suggest doing so. The embrace and pursuit of cultural sovereignty can enhance the existing partial political sovereignty that tribes already possess. It may or may not be a substitutable alternative.

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The concept of cultural sovereignty encompasses the spiritual, emotional, mental, and physical aspects of our lives. Because of this, only Native people can decide what the ultimate contours of Native sovereignty will be.59

Notes 1. Jackson (2007), p. ix. 2. Vermont Department of Taxes (2016). 3. United Nations (2008). 4. Richardson (2010). 5. Cultural Survival (2010). 6. https://www.state.gov/documents/organization/184099.pdf 7. Additions to polling stations for increased access on reservations have to be requested from the state and may or may not be granted. 8. State guidelines vary considerably, some being more specific than others. The existence of guidelines does not mean that it is necessarily difficult to get variances. The existence of the necessity for approval is the issue here— sovereignty is limited in this way. 9. Biolsi (2005). 10. Jackson (2007), p. 104. 11. Field (2008), pp. 8–9. 12. Klopotek (2011), p. 3. 13. Ostler (2010). 14. US Department of the Interior (2015). 15. Klopotek (2011), p. 3. 16. Electronic Code of Federal Regulations (2017). 17. Office of Federal Acknowledgement (2016). 18. Federal Register (2015). 19. Koenig and Stein (2008). 20. Heim (2015). 21. US Department of the Interior (2016a). 22. Koenig and Stein (2008). 23. Ibid. 24. Ibid. 25. Ibid., p. 100. 26. Cherokee Nation (2009). 27. Ibid. 28. Sheffield (1997), p. 60. 29. Blackwell and Mehaffey (1983), p. 56. 30. US Department of the Interior (2016b).

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31. Prucha (1986), pp. 300–1. 32. Hair (2016). 33. Ibid. 34. Kauanui (2008). 35. Ibid., pp. 5–6. 36. Ibid., p. 38. 37. Sheffield (1997), pp. 82–83. 38. Shepherd (2010), pp. 188–189. 39. 43 U.S. Code § 1602 (b). 40. Cumfer (2007), p. 26. 41. Bardill (2016). 42. Prucha (1984). 43. Ibid., p. 1014. 44. Pevar (2004), p. 127. 45. Prucha (1984), pp. 1058–1059. 46. Terminated tribes cannot use the Part 83 acknowledgment process. 47. Peacher (2015). 48. Peacher (2016). 49. The so-called Five Civilized Tribes were Cherokee, Choctaw, Creek, Seminole, and Chickasaw. 50. 14 Stats., 799. 51. Russell (2015a). 52. Ibid. 53. United States Supreme Court, Santa Clara Pueblo v. Martinez, (1978), No. 76–682. 54. Russell (2015b). 55. Coffey and Tsosie 2001. 56. Ibid., p. 193. 57. Ibid., p. 196. 58. Ibid., pp. 204–205. 59. Ibid., p. 210.

Bibliography Bardill, Jessica. 2016. Tribal Sovereignty and Enrollment Determinations. American Indian and Alaska Native Genetics Resource Center. National Congress of American Indians. http://genetics.ncai.org/tribal-sovereigntyand-enrollment-determinations.cfm. Accessed 3 Jan 2017. Biolsi, Thomas. 2005. Imagine Geographies: Sovereignty, Indigenous Space, and American Indian Struggle. American Ethnologist 32 (2): 239–259.

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Blackwell, Charles H., and J. Patrick Mehaffey. 1983. American Indians, Trust and Recognition. In Nonrecognized American Indian Tribes: An Historical and Legal Perspective, Occasional Paper Series No. 7, ed. Frank W.  Porter III, 50–73. Chicago: The Newberry Library Center for the History of the American Indian. Cherokee Nation. 2009. Support the Federal Recognition Process to Protect All Tribal Citizens. Pamphlet. Cherokee Nation Government Relations, Tahlequah, Oklahoma. Coffey, Wallace, and Rebecca Tsosie. 2001. Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations. Stanford Law & Policy Review 12 (2): 191–221. Cultural Survival. 2010. VICTORY!: U.S.  Endorses UN Declaration on the Rights of Indigenous Peoples. https://www.culturalsurvival.org/news/victory-us-endorses-un-declaration-rights-indigenous-peoples. Accessed 10 Jan 2017. Cumfer, Cynthia. 2007. Separate Peoples, One Land: The Minds of Cherokees, Blacks, and Whites on the Tennessee Frontier. Chapel Hill: University of North Carolina Press. Electronic Code of Federal Regulations. 2017. Title 25: Indians. Part 83— Procedures for Federal Acknowledgment of Indian Tribes. http://www.ecfr. gov/cgi-bin/text-idx?SID=bc4b8ffd8c2936a0aa61424ec65880db&mc=true &node=pt25.1.83&rgn=div5#sp25.1.83.b. Accessed 11 Jan 2017. Federal Register. 2015. Federal Acknowledgement of American Indian Tribes. 80 (126): 37865. Field, Les W. 2008. Abalone Tales: Collaborative Explorations of Sovereignty and Identity in Native California. Durham: Duke University Press. Hair, Josiah. 2016. Native American Blood Quantum, Facts and Myths. http:// www.powwows.com/native-american-blood-quantum-facts-and-myths/. Accessed 12 Jan 2017. Heim, Joe. 2015. Federal Recognition Put on Hold for Virginia’s Pamunkey Indian Tribe. Washington Post on-line. https://www.washingtonpost.com/ local/federal-recognition-put-on-hold-for-virginias-pamunkey-indiantribe/2015/10/08/479dd9e0-6dcf-11e5-b31c-d80d62b53e28_stor y. html?utm_term=.acf61f39c2c5. Accessed 12 Jan 2017. Jackson, Robert. 2007. Sovereignty. Cambridge: Polity Press. Kauanui, J.Kēhaulani. 2008. Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity. Durham: Duke University Press. Klopotek, Brian. 2011. Recognition Odysseys: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities. Durham: Duke University Press.

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Koenig, Alexa, and Jonathan Stein. 2008. Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes Across the United States. Santa Clara Law Review 48 (1): 79–153. Office of Federal Acknowledgement. 2016. Guidelines. http://www.bia.gov/ WhoWeAre/AS-IA/OFA/OFAGuidelines/index.htm. Accessed 17 Oct 2016. Ostler, Jeffrey. 2010. The Lakotas and the Black Hills: The Struggle for Sacred Ground. New York: Penguin Books. Peacher, Amanda. 2015. Tribal Court Upholds Ruling to Disenroll Grand Ronde Members. Oregon Public Broadcasting. http://www.opb.org/news/article/ confederated-grande-ronde-tribes-tribal-court-decision/. Accessed 12 Jan 2017. ———. 2016. Tribal Court Reverses Grand Ronde Disenrollment Decision. Oregon Public Broadcasting. http://www.opb.org/news/article/grandronde-disenrollment-decision-reversed-chief-tumulth/. Accessed 12 Jan 2017. Pevar, Stephen L. 2004. The Rights of Indians and Tribes. 3rd ed. New  York: New York University Press. Prucha, Francis Paul. 1984. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press. ———. 1986. The Great Father: The United States Government and the American Indians. Abridged ed. Lincoln: University of Nebraska Press. Richardson, Valerie. 2010. Obama Adopts U.N. Manifesto on Rights of Indigenous Peoples. Washington Post Website. http://www.washingtontimes.com/ news/2010/dec/16/obama-adopts-un-manifesto-on-rights-of-indigenous-/. Accessed 3 Dec 2016. Russell, Steve. 2015a. Disappearing Indians, Part II: The Hypocrisy of Race in Deciding Who’s Enrolled. Indian Country Today Media Network.com. http:// indiancountrytodaymedianetwork.com/2015/07/28/disappearing-indianspart-ii-hypocrisy-race-deciding-whos-enrolled-161197. Accessed 18 Nov 2016. ———. 2015b. Disappearing Indians III: Carving Up the New Buffalo. Indian Country Today Media Network.com. http://indiancountrytodaymedianetwork.com/2015/08/04/disappearing-indians-iii-car ving-new-buffalo-161278. Accessed 29 Nov 2016. Sheffield, Gail K. 1997. The Arbitrary Indian: The Indian Arts & Crafts Act of 1990. Norman: University of Oklahoma Press. Shepherd, Jeffrey P. 2010. We Are an Indian Nation: A History of the Hualapai People. Tucson: University of Arizona Press. United Nations. 2008. United Nations Declaration on the Rights of Indigenous Peoples. 61/295. http://www.ohchr.org/EN/Issues/IPeoples/Pages/ Declaration.aspx. Accessed 3 Nov 2016.

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US Department of the Interior. 2015. Department of the Interior Announces Final Federal Recognition Process to Acknowledge Indian Tribes. https:// www.doi.gov/pressreleases/department-interior-announces-final-federal-recognition-process-acknowledge-indian-tribes. Accessed 15 Oct 2016. ———. 2016a. Order Dismissing Request for Reconsideration Docket No. IBIA 16-003. https://www.oha.doi.gov/IBIA/Ibiadecisions/62ibia/62ibia122. pdf. Accessed 12 Jan 2017. ———. 2016b. Tribal Enrollment Process. https://www.doi.gov/tribes/enrollment. Accessed 12 Nov 2016. Vermont Department of Taxes. 2016. Income Tax Information for Individuals. http://tax.vermont.gov/individuals. Accessed 3 Nov 2016.

CHAPTER 4

Economic Outcomes of People

Evaluating the welfare of individuals is extremely difficult—it is a problem countless researchers have faced. No matter which metric is used, none will capture all aspects of a person’s life, experience, welfare, and happiness. A comprehensive measure simply does not exist. One way to attempt to address the shortcomings of singular measures is to use more than one. That is an improvement over a single-factor approach, but even with many different measured economic values, welfare is not well established across groups because of the variation in experiences and preferences across people and the quality of the data itself. And yet, what is the alternative? While data on measured economic variables and experiences do not tell the entire story, not reporting data at all would also be a mistake. Therefore, while I recognize that the available data are limited, I also acknowledge that they are valuable. What I will endeavor to avoid is making sweeping conclusions based upon aggregated data. Testimonials and case studies are also useful and valuable, but one often contradicts another, a result that shows the complexity of the issues in question. The information in this chapter, then, is worth considering in the context of the overarching questions of sovereignty and land tenure, even if they do not themselves lead to objective conclusions about the optimal sovereign/land state for indigenous people in the United States. Using Census and other data, this chapter will summarize the economic and, to some extent, the social well-being of the three groups. Primary measures will include income, poverty, health (life expectancy and © The Author(s) 2020 W. Edwards, Sovereignty and Land Rights of Indigenous Peoples in the United States, https://doi.org/10.1057/978-1-137-59400-6_4

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morbidity), service access, land ownership, rurality, education, and mobility (geographic, income, and social). Naturally, there are many other dimensions that could be examined and employed in the analysis. These specific dimensions have been chosen because this is, ultimately, an economic perspective and because of the availability of data. I have previously written1 on the well-being of indigenous people from a capabilities approach (following Amartya Sen) that incorporates functional dimensions of life and society in addition to purely economic measures like income, employment, and poverty. In this specific context, the existence of sovereignty and the availability of land for use can be seen to improve group members’ well-being even in the absence of large improvements in traditional measures like income and employment. This chapter is mainly on data so extensive capabilities discussions are confined to other publications. This chapter is divided into four parts. I begin with a discussion about Census data and population for American Indians and Alaska Natives. The Census categories, unfortunately, do not lend themselves to examining separate groups very easily. There are two primary divisions in the recent Census data related to indigenous people in the United States: American Indian and Alaska Native (AIAN) and Native Hawaiian or Other Pacific Islander (NHOPI). Where Census data do exist that separate Native Alaskans from American Indians, I employ it. In some cases, however, I will refer to the more aggregated group AIAN due to an absence of more precise data. The next section discusses well-being of the AIAN group using mainly non-Census data sources. In the third section, Native Hawaiians are discussed separately because they live in the most remote circumstances and, additionally, they are the group with the least sovereignty of the three. The distinction between the level of sovereignty that a group holds and its well-being is an issue that will also be taken up later in the book. The final section of the chapter discusses persistent poverty areas of the United States and measured poverty among indigenous people.

1   American Indians and Native Alaskans in Federal Data A vast amount of data exists on indigenous people in the United States, but most of it is never published. The Census Bureau does publish occasional reports focusing on the American Indians and Alaska Natives data, but in

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the standard, widely distributed reports, the racial categories for American Indian and Alaska Native (AIAN) and Native Hawaiian and Other Pacific Islander (NHOPI) are not included in most tables. It is worth noting that the American Community Survey,2 which is an ongoing process of data collection, does have information on the AIAN and NHOPI groups, and while it does not publish those data in reports, typically, the information is available through the American FactFinder website,3 where anyone can search for available data. To begin the discussion in this section, I will use the information in the report, The American Indian and Alaska Native Population: 2010,4 which accumulates information from the 2010 Census. The Census Bureau now (2010 data) reports AIAN data in three ways: AIAN alone, AIAN alone or in combination, and AIAN in combination. “Combination” refers to multiracial people who have chosen AIAN as one of their races. The second category is the largest, and it is the default when discussing the AIAN population. According to the Census, 5.2 million people in the Unites States identified themselves as being AIAN, alone or in combination with another race, representing a 39% increase from the 2000 Census, and 1.7% of the total population in 2010. The increase in the AIAN population occurred at a far greater rate than the general population increase of 9.7% over the same period.5 Because racial category counts come from self-identification, and because more categories were available to select in the 2010 Census, the rapid population increase that appears in the data could be due to increased reporting rather than any fundamental change in birth and/or death rates in the AIAN population. The cities with the largest population of AIAN people are (top five in order): New  York City, Los Angeles, Phoenix, Oklahoma City, and Anchorage. While the latter three cities on the list are no surprise as they exist in places where there are historically large populations of AIAN people, the top two cities highlight the growing divide between rural and urban AIAN groups which will be discussed later in the book. Cities with the highest density (percentage) of AIAN in the population are (top five in order): Anchorage (12.4%), Tulsa (9.2%), Norman (8.1%), Oklahoma City (6.3%), and Billings (6.0%) in a tie with Albuquerque.6 Here again, there are no surprises, and it is important to note that these data are for places with at least 100,000 people—in smaller places, the population density of AIAN is often much higher, occasionally 100%. The 2010 Census revealed that most AIAN people do not live in “Indian areas,” the term being defined as including “federal American Indian reservations and/or off-reservation trust lands, Oklahoma tribal

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statistical areas, tribal designated statistical areas, state American Indian reservations, and state designated American Indian statistical areas.”7 In other words, “American Indian area” in the broadest possible definition, including geographies that clearly do not constitute Indian Country. Also included is Alaska Native Village Statistical Areas which, although not legally Indian Country, do represent places where Alaska Natives have historically lived together. Among people who identified as AIAN alone, 30.7% lived in an American Indian area and 2.2% lived in an Alaska Native Village statistical area. For the people who identified themselves as AIAN alone or in combination with another race, the numbers are 20.5% and 1.5%, respectively, and for the category of AIAN in combination, the percentages fall to 7.3% in American Indian areas and 0.5% in Alaska Native Village Statistical Areas. The settlement pattern is obvious. People who have parents of more than one race are less likely to live in American Indian areas or Alaska Native villages—according to the Census, 92.1% of this group live elsewhere.8 The diaspora that these numbers suggest erodes the hope of continued self-determination for indigenous peoples in the United States. If people are leaving the land over which they have sovereign control, then sovereignty becomes more about the place rather than about the people. The 2010 Census also shows that most people who live in American Indian areas and Alaska Native Village Statistical Areas do not identify themselves as AIAN. “Of all people that lived in American Indian areas, 1.1 million identified as [AIAN] alone or in combination with another race, compared with the 3.5 million that did not identify as [AIAN]. Therefore, out of the total 4.6 million people in American Indian areas, 77 percent did not identify as [AIAN].”9 A similar phenomenon exists in Alaska where 68% of the people living in Alaska Native Village Statistical Areas did not identify themselves as AIAN. These numbers are aggregated to the national level (or state level, in the case of Alaska). In individual places, AIAN people are not necessarily minorities in their own lands. For example, on the ten reservations with the largest AIAN populations, eight had majority AIAN representation, the exceptions being the Osage Reservation in Oklahoma (20.9% AIAN) and the Flathead Reservation in Montana (32.2% AIAN).10 This indicates that while there are several “Indian statistical areas” where AIAN people are in the majority, there are many more where they are not. Maintaining sovereign self-determination is certainly more difficult in places where the population trying to employ self-determination policies is in fact a minority—in the cases of the Osage

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Reservation and the Flathead Reservation, a relatively small minority. The concept of self-determination refers to a specific people, not necessarily everyone in the geographical space. Surely when a tribe talks about its self-­ determination, it refers to tribal members, not to non-members. If the tribe is only 25% of the population on a reservation, then self-­determination efforts do not apply to 75% of the population. It is unclear how such a situation is substantially different from not having a reservation at all and instead being in the general population. In Alaska, five of the ten most populated Alaska Native Village Statistical Areas have minority AIAN representation: Knik (10.0%), Kenaitze (10.4%), Ketchikan (20.4%), Chickaloon (10.3%), and Sitka (27.7%). This list excludes larger Census areas like the Anchorage Municipality where AIAN people are large in number but a minority in representation of the total population of the place. That is, in the places with the largest populations in Alaska—Anchorage Municipality, Fairbanks North Star Borough, Matanuska-Susitna Borough, Kenai Peninsula Borough, and Juneau City and Borough—AIAN are a minority. There are many villages in Alaska where Alaska Natives are in the majority—more than 150, in fact. For example, Wainwright (90.3% AIAN), Koyuk (91.9%), Gambell (95.7%), and Allakaket (95.9%).11 Most of these places have small populations, less than 1000 people, and are in remote locations off the connected road system. The geographical distance and challenging terrain between these villages and more populated and connected places certainly contributes to relative lack of racial integration. The tribal group with the largest number of people identifying themselves as a member is by far Cherokee with 819,105, followed by Navajo with 332,129. Six tribal groupings have between 100,000 and 200,000 members: Choctaw, Mexican American Indian, Chippewa, Sioux, Apache, and Blackfeet. Blackfeet and Cherokee have the lowest percentage of members identifying as being of the one race alone with 25.9% and 34.7%, respectively. Navajo have 86.3% of their members identifying with that tribe alone, and the others in the top ten range from 50.1% to 79.1%. Alaska Native groups have far lower populations, with a total population of 138,850. The largest Alaska tribal group specified by people in the 2010 Census is Yup’ik with 33,889 people, followed by Inupiat with 33,360, Tlingit-Haida with 26,080, Alaska Athabascan with 22,484, and Aleut with 19,282. For the Alaska groups, the percentage of “tribal grouping alone” in their populations range from 58.5% (Tlingit-Haida) to 85.4% (Yup’ik).12 The Alaska tribal groups are therefore on average less

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racially integrated than the American Indian groups in the Lower 48. There are doubtless many reasons for these differences including the history of the people themselves, the timeline of contact with other peoples, the rurality and remoteness of the places where they live, and perhaps cultural differences. It is interesting that, while political sovereignty requires a separateness on a geographic level, the groups with the greater political sovereignty—American Indians—are, on average, more racially integrated than Alaska Natives, who have less political sovereignty. The count data from the 2010 Census tell us some things about the population of AIAN people. We know that the group is either growing through natural increase or increases self-identification (or both) compared to the 2000 Census. We know that most people who identify as AIAN do not live in an American Indian area or Alaska Native Village Statistical Area. And we know that, nationally, AIAN people are minorities in their own geographic spaces, while at the local level, they are still in the majority in several reservations and villages. We do not learn much about the well-being of these people, however. For that we must look at other data.

2   Well-being in the Lower 48 and Alaska13 The measurement of the well-being of people is a controversial issue.14 A common measurement is income, or its absence, often represented as income poverty. Poverty rates conceal a considerable amount of important variation in well-being, but they are not valueless in its estimation, either. The following section presents income poverty information along with other measures, such as unemployment and other available information, in an effort to understand at least partially the well-being that people experience. Historically, AIAN people have had among the highest measured income poverty rates of any group in the United States. According to the 2007–2011 American Community Survey (ACS) data, 14.3% of the US population had income below the poverty threshold. The group with the highest rate of poverty was indeed AIAN alone with 27.0%, followed closely by Blacks or African Americans at 25.8%. While the 27.0% rate is astonishingly high, it is a national average. Nine states showed a poverty rate of at least 30.0% for AIAN people during this period (Arizona (35.1%), Maine (33.1%), Minnesota (38.4%), Montana (36.3%), Nebraska (38.1%), New Mexico (31.4%), North Dakota (41.6%), South Dakota (48.3%), and

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Utah (31.7%)). In Alaska, where the AIAN group would mainly be Native Alaskans, the rate is well below the national rate at 21.0%.15 When the AIAN in combination group is examined, the income poverty rates are always lower than AIAN alone. On reservations themselves, the poverty rates are often even higher. In 2014, for example, the poverty rate on the Navajo Nation Reservation was 42.8% and on the Standing Rock Reservation was 49.4%. At the same time, the poverty rate on the Osage Reservation was 21.4%.16 Poverty rates tend to be relatively high (and therefore income tends to be relatively low) among AIAN groups, but with large geographic variation. Rates tend to be higher on reservations and among groups who report their race as AIAN alone rather than AIAN in combination with another race. Many other measures can be employed to evaluate well-being. Common characteristics include health outcomes, housing information, and educational attainment. The National Congress of American Indians (NCAI) has published eleven regional reports on AIAN groups in the United States using data from a number of different sources.17 The ten different regional reports reveal a pattern of diminished well-being among AIAN groups which is typically worse for those living on reservations compared to those living elsewhere, and worse for people who identify themselves as AIAN alone compared to those who identify as AIAN in combination with another race. In other words, the same basic pattern exists in the poverty data. In home ownership, AIAN people were more likely to rent than white people, and their household size tended to be larger. Unemployment rates were higher for AIAN people and income was lower. Educational attainment was lower for AIAN groups, as was internet and computer use. The number of children in foster care was higher for AIAN people than whites. There is also a clear pattern of worsening conditions as rurality increases. Rural places, particularly in Alaska, tend to be especially deprived of complete plumbing facilities and kitchen facilities. In the Calista Region, for example, 48% of households do not have complete plumbing facilities and 40% do not have complete kitchen facilities.18 According to the Indian Health Service, there are substantial differences in mortality rates among AIAN people compared to the national rates. Overall, mortality from disease and health condition is 1.2 times higher for AIAN people. While the rate is slightly lower for some for AIAN groups for some conditions (e.g., heart disease, Alzheimer’s disease, and hypertension), in some categories the rate is much worse. AIAN people die at 4.7 times the national rate from chronic liver disease and cirrhosis,

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2.8 times the rate from diabetes, 2.4 times the rate from unintentional injuries, 1.9 times the rate from homicide, and 1.6 times the rate from suicide.19 Suicide incidence might be even higher. According to the National Center for Health Statistics, during the period 2012–2013, the rate of suicide among young AIAN groups was 22.5 per 100,000 while the rate was 12.8 in the overall population, making the likelihood of dying from suicide 1.78 times higher for the former.20 One of the reasons for the poorer health outcomes among AIAN people is access to healthcare facilities. In rural places such as remote reservations and village Alaska, reaching a health clinic or health professional is often a daunting task. The barriers to physical and mental healthcare greatly diminish the well-being of residents of rural and remote places.21 As hinted in the previous paragraph from the mortality statistic involving crime, violence in Indian Country and in remote Alaska villages often occurs at a significantly higher rate than in the general population. The Indian Law and Order Commission put it this way22: American Indian and Alaska Native communities and lands are frequently less safe—and sometimes dramatically more dangerous—than most other places in our country. Ironically, the U.S. government, which has a trust responsibility for Indian Tribes, is fundamentally at fault for this public safety gap. Federal government policies have displaced and diminished the very institutions that are best positioned to provide trusted, accountable, accessible, and cost-effective justice in Tribal communities.

The Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence wrote this concerning the impact of violence and living conditions on children in Indian Country23: Today, a vast majority of American Indian and Alaska Native children live in communities with alarmingly high rates of poverty, homelessness, drug abuse, alcoholism, suicide, and victimization. Domestic violence, sexual assault, and child abuse are widespread. Continual exposure to violence has a devastating impact on child development and can have a lasting impact on basic cognitive, emotional, and neurological functions. We cannot stand by and watch these children—who are the future of American Indian and Alaska Native communities—destroyed by relentless violence and trauma.

Living conditions on some reservations and in some remote villages in Alaska are greatly worsened by the lack of crime prevention and police

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protection.24 Understaffed tribal police face a daunting task of covering large areas with insufficient manpower, in many cases. In rural Alaska, villages typically rely on Village Public Safety Officers, and many villages lack even this level of law enforcement. It is often the case that crime investigation is delayed by hours or days waiting for a state police officer or other investigator to travel to a remote location (in Alaska). The uncertainty and danger this creates worsens the quality of life of residents.25 The remedy for civil disputes is the court system. In rural places, access to justice via the courts is often impeded by the distances between people and court officers and proceedings. In Alaska, it can be described this way26: Access rigidities to legal professionals and the court system impede resolution of disputes. In the case of many villages in Alaska, the nearest court facility is more than one hundred miles away[.] Some examples of impacted activities include filing of restraining orders in connection with domestic abuse and violence toward women, divorce proceedings, and child support settlement enforcement. Incidence of child abuse and neglect are often investigated and resolved through “non-police” agencies and personnel (social services, for example). Lack of non-police social service professionals makes more difficult the task of receiving justice through the court system, especially for at-risk groups who cannot protect themselves (children). If affordable legal advice is not available locally, some people will make uninformed decisions about legal matters or might possibly remain outside the legal system altogether.

Most civil action in Alaska flows through the state courts. On reservations, tribal courts are often the arbiter of disputes. Tribal courts were encouraged by the US government as early as the 1800s as a means to move Indians toward assimilation into white society. The notion of tribal courts was codified by the Indian Reorganization Act (1934) and redefined through new constitutions written as a result of that law. The termination era diminished the US government’s interest and emphasis on tribes having their own court systems, but tribal courts were revitalized thereafter, especially by the example of Navajo Courts and Supreme Court decisions endorsing tribal authority in Indian Country.27 Tribal courts exist in thirty-­ one states, and operate in various ways, including the typical adversarial process as well as more traditional forms of dispute resolution.28 The efficiency in which the courts function and the access to these courts vary considerably from one to the next, as it does for courts outside of Indian Country.

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Educational attainment is lower among AIAN groups than most all other groups in most places. In Alaska, more AIAN people achieve a high school diploma as their highest level of education, and fewer achieve any amount of college education than whites do. The dropout rates are higher and the graduation rates are lower for AIAN people as well.29 A similar pattern is indicated in the Lower 48. According to the NCAI regional profiles, there is no state in the Lower 48 reporting that AIAN groups acquired college degrees at the same or higher rate as either the general population or whites. The dropout rates are higher in all reporting states, except Mississippi, and the graduation rates are lower for all reporting states, with the exception of Alabama, Delaware, Florida, Maine, New Jersey, and Virginia, where the state averaged freshman graduation rate is higher for AIAN people than whites.30 Child Welfare is of paramount concern to society no matter what race the children—or parents—happen to be. One way to assess the well-being of children in different groups is to consider their presence in the child welfare system. According to the NCAI Policy Research Center,31 The National Council of Juvenile and Family Court Judges published a “disproportionality index,” a measure of the degree a given jurisdiction is disproportionate. The index is calculated by dividing the proportion of children in foster care for a given race by the proportion of the same group in the child population. The resulting ratios that are under 1 indicate underrepresentation, ratios of 1.0 indicate no disproportionality, and scores of 1.1 and greater indicate overrepresentation. Disproportionality scores are calculated for the number of children “entering” care, “exiting” care, and “remaining” in care at the end of the year.

The 2014 NCAI regional profiles report 2012 data on disproportionality index in a number of states. Table 4.1 summarizes these data. These data are incomplete as they do not exist for every locality or state, nor even for every region. What we can see from the data that are reported in Table 4.1 is a high level of disproportionality for the AIAN group in every state reporting, except Illinois, where there are no reservations. Besides the existence of child foster care disproportionality, there is also a large degree of variation from one state to the next for AIAN children. Finally, the AIAN population is especially vulnerable to economic downturns. When a recession occurs the burden of the reduction in economic activity is typically felt most heavily among less affluent groups. To

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Table 4.1  2012 Disproportionality index of child welfare, AIAN AIAN

Black

White

Entries In Care Exits Entries In Care Exits Entries In Care Exits Alaska Illinois Iowa Michigan Minnesota Montana Nebraska North Dakota South Dakota Wisconsin

3.0 1.1 4.6 1.9 9.2 2.9 7.5 3.0 3.8 5.1

2.9 0.8 4.5 1.3 13.9 3.7 7.7 3.3 3.8 4.1

3.0 0.5 5.5 1.7 7.0 3.3 6.2 3.2 3.9 4.7

0.9 2.7 3.2 1.8 3.0 2.3 2.6 2.7 1.8 3.2

0.8 3.2 3.4 2.3 2.5 1.5 3.3 1.8 1.6 3.8

1.1 2.8 3.2 2.2 3.0 2.5 3.1 3.1 1.9 3.5

0.4 0.9 0.8 0.8 0.6 0.7 0.8 0.7 0.4 0.6

0.5 0.8 0.8 0.7 0.6 0.6 0.7 0.7 0.4 0.6

0.4 0.9 0.8 0.7 0.6 0.7 0.8 0.7 0.3 0.6

Source: Compiled by Wayne Edwards National Congress of American Indians (2014a, b, c, d, e, f, g, h, i, j, k)

the extent that AIAN people have higher poverty rates and unemployment rates at any given time, they are among the most vulnerable under worsening economic conditions. One argument in favor of sovereignty that might be made is that a tribal organization would be able to respond to the specific needs of its members more efficiently than other organizations because the tribal organization knows them better. This argument is strongest if the tribal entities have resources at their disposal to employ. Often, they do not. The recent 2007–2009 recession—the so-called Great Recession—is an example. The data in Table 4.2 show a pattern across categories that has already been discussed—in general, AIAN groups fair worse than the general population or the white population with regard to poverty rates. Looking across time from 2006, before the recession, to 2010, after the recession ended, the poverty rates at first declined and then increased for most groups in the table. In most cases, the poverty rate in 2010 was higher than the rate in 2006, the exceptions being NHOPI. The pattern of poverty rates for AIAN, whites, and the total population is surprisingly homogenous, although the rates themselves are quite different. There is no indication from these data that impacts on AIAN people of the recession were significantly different than other groups, apart from the obviously higher rates themselves. The level changes were similar.

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Table 4.2  Poverty rates before and after the 2007–2009 recession, individuals

2006 2007 2008 2009 2010

American Indian and Alaska Native alone

American Indian and Alaska Native alone or in combination with one or more other races

Native Hawaiian and Other Pacific Islander alone

Native Hawaiian and Other Pacific Islander alone or in combination with one or more other races

Total White Black or population alone African American alone

25.4 25.8 25.3 25.7 26.6

22.6 22.7 22.2 22.6 23.5

17.6 16.7 15.9 15.6 16.9

15.9 14.7 13.7 13.8 15.1

13.3 13.3 13.2 13.6 14.4

10.4 10.5 10.5 11.0 11.7

25.6 25.3 24.7 25.0 25.7

Source: Compiled by Wayne Edwards Edwards (2013b)

Since the recession, the poverty rate for AIAN people has not improved in the way that it has for the overall population. In 2014, according to the American Community Survey data, AIAN (alone) national poverty rate was 28.3% for individuals, the highest of any racial group, whereas the poverty rate for the overall population had come down to 13.5% and for Black and African American people it was 24.1%.32 The impact of the slow economic recovery after the official end of the recession has burdened racial minorities more than white people, as expected, and it has had an especially large impact of AIAN people, based upon the poverty rate.

3   Native Hawaiians Of all the places in the United States inhabited by indigenous people, Hawai‘i is the most remote. Situated in the middle of the Pacific Ocean, it is more than 2000 miles from the west coast of the United States, and about 3000 miles from Alaska. The state is comprised of eight primary islands divided into four counties: Hawai‘i County (island of Hawai‘i), Maui County (Molokai‘i, Lana‘i, Maui, and Kaho‘olawe islands), Honolulu County (O‘ahu island), and Kaua‘i county (Kaua‘i and Ni‘ihau islands). According to the 2010 census, the population of the state is 1.36 million,

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26% (355,816) of whom identify as Native Hawaiian or Other Pacific Islander (NHOPI). The largest racial group in the state is Asian American, with 780,968 people, making it the population majority—the only state in the country where white people are not the majority.33 Nationally, 1.23 million people identified as NHOPI alone or in combination with another race, representing about 0.4% of the population in the country.34 In addition to Native Hawaiians, 33,470 (2%) in the population were identified as AIAN, a slightly higher percentage than in the national population.35 The poverty rate for NHOPI (alone) according to the 2007–2011 ACS was 17.6% nationally, which is above the national measure of 14.3% but well below the AIAN rate of 27.0%. If the NHOPI group is measured in the state of Hawai‘i alone, the poverty rate is 19.1%. As with the AIAN peoples, the poverty rates are lower when measured in the broader group that includes other races. The statewide rate for NHOPI alone or in combination with another race is 15.7%.36 The poverty rate for NHOPI people is certainly higher than for other groups in the state and nationally, but it is significantly lower than the rates other indigenous people experience throughout the country. In Table  4.2 the NHOPI groups show lower rates of poverty than any other minority group before, during, and after the recession. Additionally, as compared to AIAN groups and Black or African American, the NHOPI groups were the only ones to have lower poverty rates after the recession in 2010 than they did leading up to the recession in 2006, indicating that, as a group, they recovered from the recession more quickly than other minorities. The question of why these rates are lower than for AIAN groups and for other racial minorities in the United States is a complex one with many dimensions and aspects. It is nevertheless impossible not to notice that Native Hawaiians and the NHOPI groups as measured by the 2010 Census are the most integrated into the broader society of the three aggregated groups of interest in the analysis. That is, American Indians have BIA recognition and sovereign land, and Alaska Natives, while holding no geographically sovereign space, are officially acknowledged by the federal government. Native Hawaiians are neither acknowledged as an “official” indigenous group nor hold any sovereign land and yet their measured poverty is lower than the other two groups. Social indicators for Native Hawaiians show that they are worse off than the general population but generally better off than indigenous people in other parts of the United States. In 2012, 91.5% of whites had a high school diploma whereas only 87.4% of NHOPI people did, and 20.7% of

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the latter group held a bachelor’s degree or higher compared to 32.5% of whites. Native Hawaiians have higher rates of smoking, obesity, and alcohol consumption compared to other ethnic groups, and the case rate of tuberculosis was fifteen times higher in the Native Hawaiian community than among whites.37 Even with these health differences, Native Hawaiians have the same leading cause of death as most other groups—heart disease—and the same second most common cause of death, cancer.38 Because Native Hawaiians do not live in separate sovereign places, the issues of access to justice and police protection are the same as they are for the general population, in the absence of outright racial discrimination. We would expect safety and justice to be unequally distributed across a landscape due to geography and socioeconomic conditions in Hawai‘i just like they are in any other location. However, crime statistics indicate that, overall, the state has a very low crime rate, and the distribution of crime is relatively even throughout the four counties.39 In the case of justice, the state of Hawai‘i has an Access to Justice Commission, the charge of which is to substantially increase access to justice in civil legal matters for lowand moderate-income (together “low-income”) residents of Hawai‘i.40 Among the many functions of this commission are providing support for reducing cultural and financial barriers to court access, providing language assistance, and studying how well community needs are being met. The state also has an extensive eCourt system where information and training are available on-line to all participants in the system including litigants, jurors, etc. Barriers to justice in Hawai‘i are considerably lower than in most places in the United States, and dramatically lower than in Indian Country and village Alaska. Hawai‘i is not without its problems. Like all major cities in the United States, homelessness is a serious social problem in the capital city. It is worse in Honolulu, however, than many other cities, and the state of Hawai‘i has the dubious distinction of having the highest per capita rate of homelessness in the United States.41 The high cost of living in such a remote place leads to an expected large homeless population, relative to other less expensive other places. When high prices are combined with the primary industry being tourism—tourists do not like to see homeless people while on their vacations—then vagrancy and homelessness become aggressively targeted crimes. In 2015, the number of homeless people in the state was 7620, according to the Department of Housing and Urban Development, the overwhelming majority living in Honolulu, although homeless people are on every island.42

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Homelessness and housing issues are bigger problems for Native Hawaiians than they are for non-Natives. According to a recent US Department of Housing and Urban Development report, “The incidence of housing problems was much greater for Native Hawaiian households (49 percent) than for non-Natives (38 percent). As expected, low income Native Hawaiians experience the highest incidence of housing problems (68 percent).”43 While this report is quite old (it is the most recent one specifically on Native Hawaiians), the conditions, if anything, have worsened. In October of 2015, Governor David Ige signed a proclamation declaring homelessness to be a state of emergency in Hawai‘i.44 Even with the challenges of remoteness and the resultant high prices Native Hawaiians face in the state where their ancestral land is, as a group they are better off than indigenous people elsewhere in the United States. As alluded to above with respect specifically to poverty, the level of social integration Native Hawaiians have experienced might explain partially their relative affluence and at the same time suggests that such affluence might be a trade-off of political sovereignty.

4   Comparison to Areas of Persistent Poverty in the United States The Economic Research Service of the US Department of Agriculture publishes research and information on areas of persistent poverty in the United States, particularly rural places of persistent poverty. The current definition of persistent poverty (at this writing) is a county that had “poverty rates of at least 20 percent in each US Census 1980, 1990, and 2000, and American Community Survey 5-year estimates, 2007–2011.”45 In other words, counties that have been in poverty (20% or higher) for thirty years in a row. There are 353 counties in the United States (out of 3143 counties in the country) that are persistent poverty places by the given definition, 301 of which are rural (non-metro). The majority of persistent poverty counties are in the south (84%), with large concentrations of counties in persistent poverty in Louisiana, Mississippi, Alabama, Georgia, South Carolina, Kentucky, Missouri, Arkansas, and Texas. There are also large clusters of these counties in Alaska, New Mexico, Arizona, Utah, South Dakota, and Montana—many of the counties on the list in these states include at least part of a reservation (or, in the case of Alaska, an Alaska Native Village Statistical Area).46

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If we examine the ten largest populations of AIAN people on Indian reservations, we see that half of the top ten are in counties of persistent poverty, while the other half are not. Among those reservations that are not in counties of persistent poverty, two of the five—Osage Reservation and Flathead Reservation—have AIAN populations in the minority, and the other three (all in Arizona) are near a metropolitan area. None of the ten largest Alaska Native Village Statistical Areas are in persistent poverty counties. Places with persistent poverty in rural settings often have some characteristics in common. Rurality itself is a problem because the distance from places of concentrated commerce creates understandably higher prices for the local economy and higher costs in acquiring goods and services that must be purchased elsewhere. Besides the distance, employment, education, housing, and healthcare are all common issues in places of persistent poverty.47 Unemployment rates are typically higher and labor force participation is lower. Educational attainment is lower for these populations, especially at the higher education level. Because income is lower in places of persistent poverty, the percentage of income people spend on housing is higher, as is the occupancy rate of dwellings. Healthcare outcomes are lower, morbidity rates higher, suicide rates are higher, and the frequency of received medical care is lower.48 The conditions in places of persistent poverty sound strikingly similar to those often noted on reservations and in remote villages in Alaska. As noted above, these places sometimes overlap, but even where they do not there are often similar outcomes. Not every reservation or Alaska village is poor and destitute—many are quite prosperous. The places where outcomes are in need of improvement, however, face difficult challenges and difficult choices. One possibility is economic development. There are many examples of successful development of commercial enterprises in Indian Country that have made fundamental differences in the lives of the people who live there. But economic development is not always possible and neither is it always successful. In places where there are very limited opportunities or even possibilities for economic enterprise, one possible solution is to leave the place for another that has more opportunities. Indeed, much of the success of people in the United States in terms of upward mobility can be traced to their willingness to move to another place. In Indian Country, and Alaska, and Hawai‘i, the decision to leave is much more difficult than it is in other settings because it involves giving up a place of identity, sometimes a sovereign place, sometimes a sacred

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place. Ties to the land, to a specific geography, reduce the options a person has, the options that a people have, and limit their choices regarding their future. In some cases, staying in a place works out because there are extractive resources at hand that can be monetized, or local and regional demand for a recreational facility that can be exploited, or an agricultural enterprise that the land is suited to produce can be created. In other cases, staying in a place, even a sovereign place, even a sacred place, brings great hardship upon the people there who have no chance at improving the economic well-being of their lives if they remain.

Notes 1. With Tara Natarajan. See Edwards and Natarajan (2007, 2008). 2. Available here: http://www.census.gov/programs-surveys/acs/ 3. http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml 4. Norris et al. (2012). 5. Ibid. 6. Ibid. 7. Ibid., p. 12. 8. Ibid. 9. Ibid., pp. 13–14. 10. Ibid. 11. Ibid. 12. Ibid. 13. Unless otherwise noted, the data in this section come from the 2007–2011 American Community Survey of the US Census Bureau, op cit. 14. Edwards and Natarajan (2007). 15. Macartney et al. (2013). 16. U.S.  Census Bureau, 2010–2014 American Community Survey 5-Year Estimates, extracted from the American FactFinder. 17. National Congress of American Indians (2014a, b, c, d, e, f, g, h, i, j, k). 18. Ibid. 19. Indian Health Service (2016). 20. Jiang et al. (2015). 21. Edwards and Natarajan (2007). 22. Eid et al. (2013). 23. Dorgan et al. (2015). 24. Anderson (2003). 25. Edwards and Natarajan (2007). 26. Ibid., p. 70. 27. Getches et al. (2005), pp. 415–416.

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28. Tribal Court Clearinghouse (2016). 29. National Congress of American Indians (2014k). 30. National Congress of American Indians (2014a, b, c, d, e, f, g, h, i, j). 31. National Congress of American Indians (2014k), p. 5. 32. US Census Bureau (2015). 33. Etcubañez (2015). 34. Hixson et al. (2012). 35. Etcubañez (2015). 36. Macartney et al. (2013). 37. Office of Minority Health (2016). 38. Etcubañez (2015). 39. Fuatagavi and Perrone (2016). 40. Hawaii Access to Justice Commission (2016), p. 2. 41. Nagourney (2016). 42. Ibid. 43. Pettit, et al. (2014), p. 3. 44. Ige (2015). 45. US Department of Agriculture (2016). 46. Ibid. 47. Sirota (2012). 48. Edwards and Natarajan (2007, 2008, 2009) and Edwards (2009a, b, 2013a).

Bibliography Anderson, C. 2003. “Millions of crimes go unreported,” a news article posted on the CBS News website. Retrieved March 10, 2003, from http://www.cbsnews.com. Dorgan, Byron L., et  al. 2015. Ending Violence So Children Can Thrive. US Department of Justice. https://www.washingtonpost.com/r/2010-2019/ WashingtonPost/2014/11/17/National-Security/Graphics/Report_re5.pdf. Accessed 28 Oct 2016. Edwards, Wayne. 2009a. Service Access Rigidities in Rural Alaska. In Institutional Analysis and Praxis, ed. Tara Natarajan, Wolfram Elsner, and Scott Fullwiler, 273–290. Amsterdam: Springer. ———. 2009b. Rural Society and Barriers to Well-being. Journal of Northern Studies 3 (2): 83–98. ———. 2013a. Tribal Government Responses to Poverty. In The New Faces of American Poverty: A Reference Guide to the Great Recession, ed. Lindsey Hanson and Timothy Essenberg, 560–569. Santa Barbara: ABC-CLIO. ———. 2013b. Native American Poverty During the Great Recession. In The New Faces of American Poverty: A Reference Guide to the Great Recession, ed. Lindsey Hanson and Timothy Essenberg, 286–297. Santa Barbara: ABC-CLIO.

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Edwards, Wayne, and Tara Natarajan. 2007. Rigidities, Living Conditions, and Institutions in the Far North. Forum for Social Economics 36 (2): 63–72. ———. 2008. “ANCSA and ANILCA: Capabilities Failure?” Native Studies Review 17: 69–97. ———. 2009. “Rural Society and Barriers to Well-being,” Journal of Northern Studies, 3 (2): 83–98. Eid, Troy A., et al. 2013. A Roadmap for Making Native America Safer. Indian Law and Order Commission. http://www.aisc.ucla.edu/iloc/report/. Accessed 28 Oct 2016. Etcubañez, Marita, et al. 2015. “A Community of Contrasts” (Los Angeles: Asian Americans Advancing Justice). Fuatagavi, Lydia Seumanu, and Paul Perrone. 2016. Crime in Hawaii 2014. Hawai’i: Crime Prevention & Justice Assistance Division, Honolulu. Getches, David H., Charles F. Wilkinson, and Robert A. Williams Jr. 2005. Cases and Materials on Federal Indian Law. 5th ed. St. Paul: Thomson West. Hawai‘i Access to Justice Commission. 2016. Annual Report for 2015.http://25 shu2g61cw30sjn46t4k87by.wpengine.netdna-cdn.com/wp-content/ uploads/2011/05/Commission-annual-report-for-2015-final.pdf. Accessed 30 Oct 2016. Hixson, Lindsay, Bradford B. Hepler, and Myoung Ouk Kim. 2012. The Native Hawaiian and Other Pacific Islander Population: 2010. 2010 Census Briefs. http://www.census.gov/prod/cen2010/briefs/c2010br-12.pdf. Accessed 29 Oct 2016. Ige, Davdi Y. 2015. Proclamation. http://governor.hawaii.gov/wp-content/ uploads/2015/10/10.16-EMERGENCY-PROC-HOMELESSNESS-.pdf. Accessed 30 Jan 2016. Indian Health Service. 2016. Indian Health Disparities. https://www.ihs.gov/ newsroom/factsheets/disparities/. Accessed 28 Oct 2016. Jiang, Caroline, et  al. 2015. Racial and Gender Disparities in Suicide Among Young Adults Aged 18–24; United States, 2009–2013. National Center for Health Statistics. http://www.cdc.gov/nchs/data/hestat/suicide/racial_ and_gender_2009_2013.pdf. Accessed 28 Oct 2016. Macartney, Suzanne, Alemayehu Bishaw, and Kayla Fontenot. 2013. Poverty Rates for Selected Detailed Race and Hispanic Groups by State and Place: 2007–2011. Document ACSBR/11–17 (Washington, DC: US Census Bureau). Nagourney, Adam. 2016. Aloha and Welcome to Paradise. Unless You Are Homeless. New York Times. http://www.nytimes.com/2016/06/04/us/ hawaii-homeless-criminal-law-sitting-ban.html. Accessed 30 Oct 2016. National Congress of American Indians. 2014a. NCAI Midwest Profile. http:// www.ncai.org/. Accessed 28 Oct 2016. ———. 2014b. Western Area Regional Profile. http://www.ncai.org/. Accessed 28 Jan 2016.

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———. 2014c. NCAI Rocky Mountain Region. http://www.ncai.org/. Accessed 28 Oct 2016. ———. 2014d. National Congress of American Indians Southwest Region DRAFT.http://www.ncai.org/. Accessed 28 Oct 2016. ———. 2014e. National Congress of American Indians Pacific Region. http:// www.ncai.org/. Accessed 28 Oct 2016. ———. 2014f. Northwest Area Regional Profile. http://www.ncai.org/. Accessed 28 10 2016. ———. 2014g. Southern Plains and Eastern Oklahoma Area Regional Profile. http://www.ncai.org/. Accessed 28 Oct 2016. ———. 2014h. Southeast Area Regional Profile. http://www.ncai.org/. Accessed 28 Oct 2016. ———. 2014i. Great Plains NCAI Region. http://www.ncai.org/. Accessed 28 Jan 2016. ———. 2014j. Northeast Area Regional Profile. http://www.ncai.org/. Accessed 28 Oct 2016. ———. 2014k. National Congress of American Indians Alaska Region. http:// www.ncai.org/. Accessed 28 Oct 2016. Norris, Tina, Paula L.  Vines, and Elizabeth M.  Hoeffel. 2012. The American Indian and Alaska Native Population: 2010. 2010 Census Briefs, Document C2010BR-10. Washington, DC: United States Census Bureau. Office of Minority Health. 2016. Profile: Native Hawaiians and Pacific Islanders. http://minorityhealth.hhs.gov/omh/browse.aspx?lvl=3&lvlid=65. Accessed 29 Oct 2016. Pettit, Kathryn L. S., et al. 2014. Continuity and Change: Demographic, Socioeconomic, and Housing Conditions of American Indians and Alaska Natives (Washington: US Department of Housing and Urban Development). Sirota, Alexandra F. 2012. The Legacy of Hardship: Persistent Poverty in North Carolina. BTC Brief, North Carolina Justice Center. http://www.ncjustice. org/sites/default/files/BTC%20Brief%20-%20Persistent%20Poverty_0.pdf. Accessed 7 Nov 2016. Tribal Court Clearinghouse. 2016. Tribal Courts. Tribal Law Policy Institute. http://www.tribal-institute.org/lists/justice.htm. Accessed 29 Oct 2016. US Census Bureau. 2015. FFF: America Indian and Alaska Native Heritage Month: November 2015. http://www.census.gov/newsroom/facts-for-features/2015/cb15-ff22.html. Accessed 3 Nov 2016. US Department of Agriculture. 2016. Geography of Poverty. http://www.ers. usda.gov/topics/rural-economy-population/rural-poverty-well-being/geography-of-poverty.aspx. Accessed 7 Nov 2016.

CHAPTER 5

The Value and Use of Land

In law, land is an object, a thing, a commodity, an asset. To the people who live on the land, these descriptions or ideas of what land is are incomplete. It is true that land has a market value, but it also has other value. Alvarez provides an excellent description of the non-market value of land. Like life, land is sacred to Native American people. The land has an intrinsic spiritual and cultural value and does not require manmade infrastructure or improvements to give it value. Most important, these lands are homelands— where the ancient stories took place, passed down to children in songs and dances so that each generation can learn about its culture and traditions. Land is what ensures continuity because it is not only where ancestors once lived, but also where future generations will be born; it constitutes a fundamental component of life. For all Native American people, the land where they reside today is the only land they have remaining to hand down to future generations of their tribe. Land is also a means to preserve their cultural identity separate and apart from mainstream society.1

Alvarez goes on to note that beyond the market value and the cultural value of land, it often serves practical functions for many American Indian tribes insofar as many people make their living off the land. And, for some tribes, there is the political element—the land represents sovereign political space. With all these different dimensions of land present at once, conflicts inevitably emerge. Even within a given constituency, disagreements

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can occur. Different people have different goals for land use and development. Some might prefer to see extractive uses exploited whereas others might want to focus on retail commercial and entertainment enterprises. Others might desire that the land be held in preservation with only limited development. All these points of view are valid, but they are not necessarily consistent with each other, and where there are disagreements, decisions about land use have to be made. In this chapter I consider the conflicting goals for the use of land that exist for indigenous peoples. The formative basis for the goals depends at first on the nature of the control that the people in question have over the land. In the case of American Indians with reservations, their political sovereignty allows them a great deal of leeway when considering what uses to put to their land. Alaska Natives have fewer alternatives because they do not inhabit politically sovereign space, but the corporations they are members of do have private ownership of land and therefore can employ it as they see fit within the bounds of the applicable governing authority. Native Hawaiians have the fewest choices, and they face the most challenging means of communicating their preferences because they have no political autonomy and no organization over any private land. They do have opportunities to apply for leases in Hawaiian Home Lands that offer the potential for them to live on land that is in some way their own. All three groups face challenges related to land, and all three must find ways to consolidate disparate goals and preferences into action.

1   In Indian Country The political sovereignty that American Indian tribes with reservations enjoy puts them in a better position than any other indigenous group in the United States in terms of making decisions about the use of their collective land. The tribe can encourage any sort of industry and economic activity it likes as long as it does not violate federal law, or at least the laws that federal authorities have chosen to enforce.2 The combination of political sovereignty, collective control, and land yields powerful possibilities. Use of the land depends in part on specific rights to the land in question. In many places in Indian Country, ownership and rights to land are mixed and fragmented. Most reservations contain a mix of land tenure within their boundaries. Ownership on a reservation can include tribal trust land, individual trust

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land, tribal fee simple land, individual tribal member fee simple land, non-­ Indian fee simple land, and federal, state, and/or county land. Reservations with complex patterns of ownership are commonly referred to as “checkerboarded.” [One example is] the Flathead reservation of the Salish and Kootenai Tribes of Montana.3

In the Flathead Reservation example, most of the border of the reservation is tribal trust land, meaning that land use is restricted and must be approved by federal authorities. “Trust land is held by the federal government for the benefit of a tribe or of an individual tribal citizen. The use and transferability of trust lands are restricted, and trust lands cannot be sold or used as collateral for a loan without the approval of the secretary of the interior.”4 The interior of the reservation is a maze of disconnected land chunks held in different legal states by different constituents ranging from individuals to tribes to political places like towns, state, and federal land. This kind of political and legal fragmentation makes the collective use of the land much more difficult. On the other hand, the fragmentation might make development easier for individuals who are opportunistic and have a usury right in a specific valuable place. What can actually be done on the land depends upon its characteristics and those of the land surrounding it, the population of the place itself and its neighboring places, and the demand for products locally, regionally, and externally that could theoretically be produced. If harvestable assets exist, then they can be collected. If the land is suitable for cultivation, then timber or other crops can be grown. If sufficient demand exists for entertainment and gaming, then resorts and casinos can be constructed. Every place is different, and so the particular possibilities vary considerably. For example, the Southern Ute Tribe of Colorado has been successful in exploiting the natural gas reserves that exist on its land, generating enormous profits for the tribe and tribal members. Many tribes have successful timber operations (e.g., the Colville Tribes), and land that has agricultural uses can be developed directly by the tribe or leased to others for profit.5 There are many success stories tied to land use, and there are also stories of tribes with little useful (in the market sense) land. One example is the Lone Pine reservation in California. The tribe has 237 acres (tribally owned) that in the past had mining and some agricultural uses but that today has little activity. Development possibilities are quite limited because of the location and the size of the reservation. Tourism appears to be one of the likeliest avenues for development because of nearby sites like Death

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Valley and Mount Whitney, but the tribe faces competition from already established tourist enterprises.6 There are many tribes in this situation, and others that have issues of land rights (their reservations are largely trust lands) that limit the tribe’s options in economic development. 1.1  Collective Land and the Lives of People In order to determine whether an undertaking has been successful one first has to know what the original goal was—what are we trying to achieve? It is likely to be the case that there are many goals sought at once, and it might even be the case that satisfying one goal conflicts with the success of another goal. In these cases, it is vital to prioritize goals and seek to achieve the most important one first. If achieving the most important goal means that the other goals cannot be achieved, then so be it—opportunities and resources are finite. If we were to come to the conclusion that it is impossible to prioritize goals, that two or three or many are equally important, then we have reached an impasse in decision-making if any of these equally important goals conflict with each other. Ultimately, then, in governance and in development, it is unacceptable not to be able to prioritize goals because to do otherwise leads to chaotic decision-making. What are the goals? Every tribe might have different goals and so it is difficult to generalize. However, most tribes have websites7 and on most of these public faces of the tribe goals are delineated. Below is a sampling of excerpted goals/mission statements from tribes in different states in order to get an idea of what is important to them. I have chosen tribes with reservations in five different states, two in the west, one from Oklahoma, one in the south, and one in the east. Pyramid Lake Paiute Tribe, Nevada,8 Economic Development Statement. The focus of the Tribe’s Economic Development Department is to create jobs & revenue for the Tribe and its members by implementing the Pyramid Lake Economic Development Plan.

The Hopi Tribe, Arizona,9 Office of Community Planning and Development. Provide effective support services and education at all levels of the Hopi Tribal Government and villages throughout the Hopi Reservation with quality and culturally appropriate land use, development planning, and economic development planning assistance.

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The Osage Nation, Oklahoma,10 Executive Mission Statement. Improve the lives of all Osage people in a sustainable way through cultural preservation, improved health, educational excellence, increased employment and business opportunities, and the creation of a safe and progressive environment in which to live and work.

The Mohegan Tribe, Connecticut,11 Welcome Statement. The Mohegan Tribe is a sovereign, federally-recognized Indian Nation, with its own constitution and government. Not only does the Tribe govern itself, but many Tribal administrative departments oversee the everyday function of the reservation and provide for Tribal members. While the best-­ known Tribal enterprise may be the Mohegan Sun casino, the Mohegan Tribe also owns and operates a number of other enterprises that benefit both the Tribe and the community at large.

Seminole Tribe of Florida,12 Seminoles and the Land. Traditional Seminole cultural, religious, and recreational activities, as well as commercial endeavors, are dependent on a healthy Everglades ecosystem. In fact, the Tribe’s identity is so closely linked to the land that Tribal members believe that if the land dies, so will the Tribe. The Seminoles saw the Everglades in decline and recognized that they had to mitigate the impacts of man on this natural system. Seminole environmental projects are designed to protect the land and water systems within the Reservation while ensuring a sustainable economic and cultural future for the Tribe.

These excerpts do not necessarily represent these tribes’ highest priority goal—after all, they come from different agencies which, naturally, are concerned with different aspects of tribal government and activity. I picked statements about the mission of a tribe when available, and when that was not available, I sought some declaration about the use of the land or economic development. They are all different, but many themes recur. Jobs and employment are important. The well-being of tribal members is important. The environment is important, and so is cultural preservation. None of these issues is controversial; it is hard to imagine any tribe objecting to goals of creating jobs, improving the well-being of members, sustaining the environment, and preserving the tribe’s culture. The conflict

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enters when a tribe does not have unlimited resources and has to start making choices. Every human being is unique. Nevertheless, constituencies develop around specific goals and power struggles can occur in tribal governments, just as they do in every other government. In any case, whatever a person’s hypothetical belief about the importance of cultural preservation versus economic development, their immediate needs will be the sharpest focused concerns. If people live in poverty, deprived of employment, income, decent housing, education, food, and healthcare, then these goals must be the most important. They are immediate—short-term—problems that must be solved before other issues—long-term goals—can be addressed. There might be examples of hardline individuals willing to make dire personal sacrifices to preserve a place from development to their own financial and/or physical detriment (and others’), but in any large population of people, these individuals are a minority. 1.2  On-Reservation Versus Off-Reservations Priorities Goals established by the political arm of a tribe cannot represent entirely and completely the preferences of each individual member of the tribe because people have different preferences. In all representative endeavors the government body is seeking to improve the lives of its members by achieving the goals it has set out, but if the goals the individual members want are different, then the outcomes they experience will not be optimal for them. It is a conflict in goals. People who live on a reservation might have different goals for their government in terms of land use than people who do not live on the reservation if the competing options available alter the living conditions in the reservation space. One example would be where economic development negatively affects the environment to the point that game animals flee the area resulting in a change to subsistence activities. People who do not live on the reservation and therefore do not engage in subsistence hunting are not impacted by the reduction in available game and therefore might not value this loss in the same way as those who have stayed on the reservation and do continue to hunt there. Maximizing shareholder value at the cost of non-monetary values comes in many forms, one of the most controversial being disenrollment, which is the process of removing the status of a tribal member and casting them out of the tribe. Why would any tribe want to remove any of its

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members? Stated official reasons given by tribal councils vary, but most concern the idea of removing people who were enrolled in error in the first place in order to maintain the integrity of tribal membership. Opponents point to a more mercenary goal of reducing the number of tribal members in order to increase the per capita distributions from tribal business operations, notably casinos.13 There is also the possibility that the move to disenroll specific persons or families has to do with internal politics or even personal grievances. It can be seen in this way as the opposite of coalition-building—it is the destruction of political opposition. Differences in goals can be resolved in this way, but the implications of disenrollment are far reaching, generating negative externalities those who sponsor the action might not fully appreciate. Jae14 states: [T]he ramifications of disenrollment go beyond just affecting the social, economic and spiritual well-being of those who are facing disenrollment and those who have been disenrolled. It threatens the relationship between tribal leadership and their constituency because it calls into question the fairness and legality of their motives, which seem to be fueled by greed and political corruption. It threatens the continued economic growth and stability of tribal and native owned ventures because the negative press surrounding tribes involved in disenrollment battles may cause investors to second guess or pull their funding. It threatens our federal funding as well as our recognition as tribal entities, since funding and federal/state tribal recognition is often determined by the number of members. What’s worse is that it can happen to anyone, at any time and in any tribe regardless of their blood quantum, ancestral lineage, traditional participation or community standing.

If disenrollment is large enough, it might have some of the worst outcomes Jae mentions and would be an example of a short-term goal (per capita distribution, say) eroding a more important long-term goal (survival of the tribe as a cultural entity). A more likely outcome is that it generates uncertainty, as Jae mentions, among tribal members and current and potential business associates and partners. Investors in any enterprise do not like uncertainty because as it increases, predicting the outcome of an investment becomes more difficult. Higher uncertainty, therefore, leads to less investment in general. The lack of adequate availability of financial capital is often a limiting factor in the development of business enterprises in Indian Country and in economic growth on reservations. Any action that makes financial capital even more scarce would need to have a large upside in order to be justified.

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2   In Alaska There is no collective ownership or politically sovereign space held by Alaska Natives. The creation of Regional and Village Corporation by the Alaska Native Claims Settlement Act (ANCSA) does however give Natives private ownership in land and therefore opportunities to generate revenue and improve the well-being of members. Village Corporations have surface rights to the land they own and so they can harvest timber, for example, but they cannot drill for oil. Regional Corporations own the subsurface rights to their own land and the land owned by Village Corporations, so they can engage in extractive activities in addition to other forms of commerce. Unlike tribes on reservations, Alaska Native Corporations cannot build casinos, however, because Class III gaming, while not a violation of federal law, is a violation of Alaska state law. Neither can the corporations regulate commerce or establish special conditions for businesses because they have no sovereign authority. They can create companies and invest in internal and external opportunities that are promising. Therefore, they have considerable (although variegated) economic power. Most of the economic activity related to the land is conducted by the Regional Corporations, or perhaps it is more accurate to say the Regional Corporations have a larger impact than Village Corporations on land because they are larger entities and because extractive activities—mining and drilling for oil and natural gas—are more disruptive and violent to the land itself and the environment at large. 2.1  Corporate Motives ANCSA was an ambitious endeavor and, as such, faced severe rigidities and obstacles. Case and Voluck15: The cost of implementing ANCSA was daunting. The Natives had to establish more than 200 corporate enterprises, select 45 million acres of land, and pursue business opportunities, often where none existed. This, coupled with the government’s delay in conveying the land and the almost continuous litigation arising out of the ambiguities in the act itself, proved an onerous burden. Congress responded to these uncertainties by amending ANCSA no less than six times in the first ten years after its enactment.

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It was a difficult start, but such a dramatic transition was bound to face obstacles and rigidities. The concept of forcing a corporate structure onto Natives where corporations were not the typical form of business organization sounds disturbingly familiar to the idea of allotment that was meant to transform American Indians into farmers where they had mostly not been farmers before. It is an example of paternalism, really, of colonialism, but in the ANCSA case, for all its faults, Alaska Natives were more involved in the process than in any previous example in US history. Congress was also deeply invested in the success of the Act as evidenced by the continual changes to it that were meant to shore up the concept of the corporations and give them financial surety when they needed it. American Indians were never treated with this kind of assistance and this manner of abiding positive reinforcement. The primary motive of Alaska Regional Corporations (I will confine my discussion here to the regional corporations) is profit. There are other goals as well. What follows is a sampling of the stated goals for five of the corporations to give a context for their motives.16 Arctic Slope Regional Corporation.17 ASRC’s mission is to actively manage our businesses, our lands and resources, our investments, and our relationships to enhance Iñupiaq cultural and economic freedom—with continuity, responsibility, and integrity.

Bristol Bay Native Corporation.18 As a corporation, we seek out opportunities for growth across the globe. We convert our profits into benefits for our shareholders in the form of dividends, economic development, employment, and educational opportunities. It’s not an accident that our forward-looking corporate strategy leads to the greater good of our shareholders. It’s our commitment.

Doyon, Limited.19 To continually enhance our position as a financially strong Native corporation in order to promote the economic and social well-being of our shareholders and future shareholders, to strengthen our Native way of life, and to protect and enhance our land and resources.

Aleut Corporation.20

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The Aleut Corporation is committed to promoting economic, cultural, and social growth for its shareholders through its subsidiaries, partnerships and foundation.

Sealaska Corporation.21 We are guided by values to build excellence in our Native enterprise and take action toward our purpose: to strengthen people, culture and homelands. Haa Aaní Íitl’ Tlagáa Na Yuubm (Our Land) The basis of our collective identity and culture Utilizing the land while protecting for future generations Sustainable relationship with our lands Sustainable community economies

These statements are not all that dissimilar to the ones from American Indian tribal government websites. Alaska Regional Corporations want to make money and distribute it to their shareholders in order to improve the well-being of their shareholders. Most of them also mention cultural or environmental priorities, or both. There is very little to complain about in these objectives. As goals, they all seem positive and broadly popular but of course they do conflict with each other—preservation of the land is typically not consistent with the economic development of the land. What any corporation actually does depends on its management and, to some extent, on the shareholders who choose the management, if they are making informed decisions. If corporate action represents the will of its shareholders then we would expect management to remain in power with a thoughtful participating shareholder base. Some have complained that power has become concentrated in Regional Corporations because people born after the original enrollment in 1971 do not automatically received shares in their regional corporations. In other words, young people are disenfranchised from the corporate governance process.22 If there is a difference in preferences and goal priorities between generations of people, then leaving out everyone under 45 years of age would have an impact on corporate decision-making. 2.2  Rural Versus Urban Priorities Goal priorities often vary between groups who live in rural places and groups who live in urban places. Rurality in Alaska is a relative concept

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where “remote” often better describes a place than “rural.” The distinction might more accurately be described as a difference between people with more subsistence-based lifestyles compared to people who prefer and maintain more market-based lifestyles. An example of the former is the Gwich’in people in northeast Alaska. Numbering about 7000 and inhabiting more than a dozen villages, the Gwich’in are not a small group. They are well known for having strong and vocally expressed preferences for maintaining their traditional subsistence lifestyle that revolves around the caribou herds that cross the Arctic National Wildlife Refuge (ANWR). The Gwich’in are in direct conflict with some Inupiat groups in the area, also with a large population of about 9000. The Inupiat would like to see oil drilling proceed in parts of ANWR whereas the Gwich’in are worried that oil exploration and drilling will drive off the caribou and they therefore oppose it.23 Oil drilling in ANWR has been a contentious national issue for a long time, since at least 1977, with environmentalists in general opposed to extracting oil from the refuge because of the possibility of despoiling it.24 These opinions, however vociferous, are largely hypothetical coming from people who live nowhere near ANWR. The Gwich’in and the Inupiat who actually live there have more to gain or lose than any outsider taking a political or philosophical or moral stance. Environmental impact studies have concluded that oil development in the places of ANWR targeted for it would result in devastation of the place as wilderness. The Gwich’in have therefore received external validation for their fears. At the same time, the Inupiat opposition, while certainly valid as a people with standing in the area, is informed by the fact that the Inupiat rely more on sea mammals than on caribou and that, as a result, they oppose off-shore drilling but favor on-land drilling in ANWR.25 Everyone is looking out for their own best interest, as rational people do, but that is exactly the problem. The rational position for Gwich’in points in the opposite direction with respect to extractive development than does the rational position of the Inupiat. So which rational position should be adopted? Ultimately, the decision to drill will not be left to the Native people in ANWR. Instead, it will be decided by outsiders at the national level because the federal government will have to open the refuge to drilling or not. President Obama, a Democrat, opposed opening ANWR for drilling, but in the 2016 election, the Democrats lost the presidency and did not gain a majority in the Senate or the House of Representatives. It is quite possible that there will be changes on the horizon for resource exploitation in ANWR and, like so

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many changes made that have affected the lives of indigenous peoples in the past in the United States, the decision will be made by mostly white people far away in Washington, DC. The case of the Gwich’in people offers a clear line between positions on the development of the land. The distinction is not always so dichotomous. With changing demographics and a younger population among Natives in Alaska, preferences change over time and momentum shifts toward whichever new priority takes hold. Dramatic changes in technology have delivered information and digital entertainment to remote places and, occasionally, telecommuting job opportunities. The market economy has become increasingly important even in very remote places. While a large percentage of the population of Alaska Natives participates in some form of traditional or subsistence activity, their level of participation on average has declined.26 The question of whether or not to develop land is itself changing to a question of what opportunities exist for development and to what extent can they be exploited. As the number of people who prefer traditional and subsistence lifestyles declines, the question shifts to one of to what extent will participation in the natural environment be available. Indeed, in the end it could come down to chance, not preferences or corporate goals. Places will remain natural only where there is not sufficient expected profit in developing them, which is more or less the way extractive resources were exploited prior to landmark legislation like ANCSA and the Alaska National Interest Lands Conservation Act.

3   In Hawai‘i Native Hawaiians are US citizens, but they do not have federally acknowledged status and the do not have any tribal (sovereign) land. There are private Native Hawaiian organizations dedicated to the development and improvement of the society of Native Hawaiians and individuals in the group. There are also state-level organizations such as the Department of Hawaiians Home Lands (DHHL) and the Office of Hawaiian Affairs (OHA), and the federal Department of the Interior Office of Native Hawaiian Relations (ONHR), all in place for the benefit of Native Hawaiians. The mission statements of these departments and offices follow, in the interest of observing how they relate to land use.27 Department of Hawaiians Home Lands28  DHHL has the primary mission of administering leases on the Hawaiian Home Land trust land. The

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purpose of the leases is primarily homesteading, but also pastoral and agricultural activities are available. Value Statement. To ensure the Hawaiian Home Lands Trust is on a solid foundation with sound policies and procedures, a long-term sustainable financial plan, a commitment to serving beneficiaries, and an organizational culture that honors the spirit of its founder, Prince Jonah Kūhiō Kalaniana‘ole. With the foundation firmly rooted, administrations going forward will be prepared to work slide-by-side with beneficiaries and other partners to create and maintain vibrant homestead communities. Pursuant to provisions of the [Hawaiian Homes Commission Act], the Department provides direct benefits to native Hawaiians in the form of 99-year homestead leases at an annual rental of $1. In 1990, the Legislature authorized the Department to extend leases for an aggregate term not to exceed 199  years (Act 305, Session Laws of Hawaii 1990; section 208, HHCA). Homestead leases are for residential, agricultural, or pastoral purposes. Aquacultural leases are also authorized, but none have been awarded to date. The intent of the homesteading program is to provide for economic self-sufficiency of native Hawaiians through the provision of land.29

Office of Hawaiian Affairs30  OHA is a state agency that provides grants for activities connected to community development and cultural preservation of Native Hawaiians. The office also manages some land on the islands. The Office of Hawaiian Affairs is a public agency with a high degree of autonomy. OHA is responsible for improving the well-being of Native Hawaiians. OHA enhances Hawaiian well-being by collaborating with various organizations to strengthen our community’s resources. Our focus on protecting the ‘āina is part of a larger effort to honor the past while preparing for the future. As the state’s 13th largest landowner, we manage more than 27,000 acres of lands set aside largely for cultural and agricultural endeavors. To maintain the connection to the past and a viable land base, we’re taking steps to ensure responsible stewardship of Ka Pae ‘Ā ina O Hawai‘i.31

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Department of the Interior Office of Native Hawaiian Relations32  ONHR is the federal vehicle for assuring compliance with US law relating to Native Hawaiians, Hawaiian Home Lands, trust lands, and sanctuaries and parks. The Office of Native Hawaiian Relations was authorized by Congress in Public Law 108-199 on January 23, 2004, and in Public Law 104-42 on November 2, 1995. The Office discharges the Secretary’s responsibilities for matters related to Native Hawaiians and serves as a conduit for the Department’s field activities in Hawaiʻi. Our Mission The mission of the Office is to serve as a liaison with the Native Hawaiian Community and work with the Department and its bureaus on issues affecting Hawaiʻi.

As it relates to land in the state, DHHL has the most direct impact because it administers leases in the Hawaiian Home Lands, the 200,000 acres set aside by the Hawaiian Homes Commission Act (1921). The leases are made to individuals (or at least individual economic units) and therefore do not establish any sort of collective land base. While individual leases are temporary (99  years initially, extending to a maximum of 199 years), the leasing of the land is clearly meant to continue indefinitely, thereby providing an assured place of existence for at least some Native Hawaiians. The use of the land is limited and there is no apparent intent to develop it for broad commercial purposes. OHA administers some land (27,000 acres) to be used for agricultural and cultural purposes, not for homesteading or for commercial development. The activities of OHA are more directed toward financial assistance and grant provisioning than toward land use and development, as such, although activities made possible by the financial assistance provided by the office could be employed on land. ONHR, as the federal agency involved in land issues related to Native Hawaiians, is primarily concerned with compliance with the (US) law. In addition, as an office of the Department of the Interior, it is concerned with all the “national” land in the state, including national parks and monuments. Land use in federal areas of Hawai‘i is treated the same way it is treated in other states and Native Hawaiians do not have any de facto preference or privilege in these places.

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3.1  Land Leases in the Home Lands While commercial leases are available in the Hawaiian Home Lands, they are small in number and land use area.33 The primary leasing is done for residential purposes. The eligibility requirements are quite strict—in order to obtain a lease a person must prove they have at least a 50% Native Hawaiian blood quantum. Therefore, all leaseholders in a designated Hawaiian Home Land area are Native Hawaiians, by definition, and therefore a community of Native Hawaiians has been established. The leases are 99 years in duration, giving people a place to exist through a span of time equal to a very long life—from the perspective of the individual, for all intents and purposes the duration of their earthly existence. What has been created here is a possessory option (as long as the conditions of the lease are met) for an extended period of time in a specified place available only to Native Hawaiians. While not sovereignty, Hawaiian Home Land leases create a community dedicated to Native Hawaiians that is stronger in its commitment to the indigenous people than, say, villages in Alaska which, after all, do not have blood quantum requirements for residence. These zones of residence are exclusive to Native Hawaiians (the leaseholder, anyway) and specifically exclude everyone else. The limiting factor that keeps this arrangement from approaching sovereignty is the lack of a political entity and the private nature of the leases themselves. The community, however, is clearly Native Hawaiian. Hawaiian Home Lands homesteads exist on six of the eight main islands of the state. Most are residential, but a few are designated agricultural. Most (nominally) are in urban and suburban areas and therefore function very much like neighborhoods as part of a larger civic structure. There are several large homestead sites in rural places on the islands as well which are not as developed for habitation as the ones nearer to cities. Future planning by the DHHL suggests continued residential development for leasing to individuals. Given the parameters of the act governing the use of Hawaiian Home Land sites, it is unlikely that significant changes will be made to the approach currently taken in development. The looming uncertainty is what will come of the new stance the US government has taken with respect to Native Hawaiians and its willingness to establish a government-to-government relationship. If that were to come to pass, land status would be one of the big issues that needs to be sorted out.

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3.2  Assimilation Versus Separation The issue of establishing a political relationship between a representative Native Hawaiian group (which does not currently exist) and the federal government raises the question of land issues. There is no way to know what settlement the US government would reach with Native Hawaiians— would it be more like the reservation system that American Indians contend with or would a more corporatist angle be pursued, as was done in Alaska. The precedent would seem to be with an Alaska-style settlement because it is a more recent outcome and has been relatively successful. If that was the solution in this hypothetical future, then the 200,000 acres of Hawaiian Home Lands trust land (or some portion of it) would probably be transferred as private property to the governing Native Hawaiian authority. As this land has already been set aside, more or less, its more complete transfer would be the less disruptive than selecting other land. The level of autonomy in this space would have to be negotiated, but it would most likely be on par with what Alaska Regional Corporations possess. As with any large-scale land transfer, some parties would be pleased with the resolution while others will be outraged. Whatever the details, some sort of land settlement is inevitable in the case of federal acknowledgment of Native Hawaiians. The issue reduces to one of assimilation versus separation. Both these concepts exist on a continuum and they also overlap. To what degree should a group separate (complete political sovereignty) or assimilate is the operative question. Neither of the extreme positions are palatable to most people with standing in the debate, but there are a few activist groups (e.g., the Hawaiian Kingdom34) that take Hawaiian sovereignty to the extreme position of claiming to be an occupied people (Native Hawaiians) ruled by foreign invaders (the United States). An international example is Tibet, a country (geographic space) entirely occupied by China that maintains a government in exile, presumably hoping to one day return to power in Tibet if China were ever to leave. The history of how the United States came to rule the islands would support this notion, but the long history since then, including annexation and statehood, does not. In other chapters I have discussed how Native Hawaiians are more integrated into the broader society, on average, than Alaska Natives or American Indians due to their general lack of sovereign space and also because a large percentage of the Native Hawaiian population lives in urban and suburban places, more than the other two groups. Assimilation

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appears to have happened to the indigenous people of Hawai‘i. At the same time, much effort by the state of Hawai‘i and, increasingly, by the federal government, has been brought to bear on issues of Native Hawaiian cultural preservation, including language preservation, the like of which is not seen among the other two groups. In this way, a greater degree of cultural preservation has occurred than in many other indigenous groups in the United States. What continues to be missing is political autonomy and politically sovereign land.

Notes 1. Alvarez (2011). 2. The notable exception is prohibition against marijuana cultivation which the Department of Justice (as of 2016) has chosen not to enforce on reservations. 3. Harvard Project on American Indian Economic Development (2008), p. 98. 4. Ibid., p. 98. 5. Miller (2013), pp. 50–51. 6. Tiller (2015), pp. 305–306. 7. See the Appendix for a complete list of websites. 8. http://plpt.nsn.us/econdev/index.html 9. h t t p : / / w w w . h o p i - n s n . g o v / t r i b a l - s e r v i c e s / office-of-community-planning-development/ 10. https://www.osagenation-nsn.gov/who-we-are/executive-branch 11. http://mohegan.nsn.us/government 12. http://www.semtribe.com/Culture/SeminolesandtheLand.aspx 13. Toensing (2013). 14. Jae (2016). 15. Case and Voluck (2002), p. 169. 16. See the Appendix for more information on Alaska Native Regional and Village Corporations. 17. https://www.asrc.com/Pages/We%20are%20ASRC.aspx 18. http://www.bbnc.net/our-corporation/about/ 19. http://www.doyon.com/our-corporation/corporate-goals/ 20. http://www.aleutcorp.com/shareholders/who-we-are/the-corporation/ 21. http://www.sealaska.com/who-we-are 22. Trahant (2016). 23. Wallace (2005). 24. Chance (2008). 25. Mitchell (2001).

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26. Larsen et al. (2010). 27. See the Appendix for more information on Hawaiian Home Lands. 28. http://dhhl.hawaii.gov/dhhl/hhl-strategic-plan-2012-2017/ 29. http://dhhl.hawaii.gov/hhc/laws-and-rules/ 30. http://www.oha.org/about/ 31. http://www.oha.org/strategicplan 32. https://www.doi.gov/hawaiian/aboutus 33. Edwards (2015). 34. See http://hawaiiankingdom.org/index.shtml for information on the organization.

Bibliography Alvarez, Annette. 2011. Native American Tribes and Economic Development. Urban Land. http://urbanland.uli.org/development-business/native-american-tribes-and-economic-development/. Accessed 8 Nov 2016. Case, David S., and David A. Voluck. 2002. Alaska Natives and American Laws. 2nd ed. Fairbanks: University of Alaska Press. Chance, Norman. 2008. The Arctic National Wildlife Refuge: A Special Report. Arctic Circle. http://arcticcircle.uconn.edu/ANWR/. Accessed 15 Nov 2016. Edwards, Wayne. 2015. “Divergent Economic Outcomes of Land Rights Claims of Indigenous Peoples in the United States,” Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, edited by Mark D. White (Palgrave Macmillan, 2015), pp. 161–181. Harvard Project on American Indian Economic Development. 2008. The State of the Native Nations: Conditions Under U.  S. Policies of Self-Determination. New York: Oxford University Press. Jae, Johnnie. 2016. Tribal Disenrollment: The New Wave of Genocide. Native News Online. Net.http://nativenewsonline.net/opinion/tribal-disenrollment-the-new-wave-of-genocide/. Accessed 15 Nov 2016. Larsen, Joan Nymand, et  al. 2010. Conclusion: Measuring Change in Human Development in the Arctic. In Arctic Social Indicators, ed. Joan Nymand Larsen, Peter Schweitzer, and Gail Fondahl, 147–159. Copenhagen: Nordic Council of Ministers. Miller, Robert J. 2013. Reservation Capitalism: Economic Development in Indian Country. Lincoln: University of Nebraska Press. Mitchell, John G. 2001. Oil Field or Sanctuary? National Geographic.com.http:// ngm.nationalgeographic.com/ngm/data/2001/08/01/html/ ft_20010801.3.html. Accessed 15 Nov 2016. Tiller, Veronica E.  Velarde. 2015. Tiller’s Guide to Indian Country. 3rd ed. Albuquerque: BowArrow Publishing.

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Toensing, Gale Courey. 2013. Nooksack Indian Tribe in Disenrollment Fight. Indian Country Today Media Network.com. http://indiancountrytodaymedianetwork.com/2013/04/11/nooksack-indian-tribe-disenrollmentfight-148742. Accessed 15 Nov 2016. Trahant, Mark. 2016. Alaska Senate Candidate Raises Questions About Native Corporate Power. Indian Country Today Media Network.com. http://indiancountrytodaymedianetwork.com/2016/06/04/alaska-senate-candidateraises-questions-about-native-corporate-power-164691. Accessed 15 Nov 2016 Wallace, Scott. 2005. ANWR: The Great Divide. Smithsonian Magazine.http:// www.smithsonianmag.com/science-nature/anwr-the-great-divide69848411/?no-ist. Accessed 15 Nov 2016.

CHAPTER 6

The Future of Indigenous Sovereignty and the Paths for Native Development in the United States

This chapter discusses options and strategies for indigenous groups to address sovereignty, self-determination, and economic growth. The connection between land use and the partial political sovereignty of indigenous groups in the United States is the starting place for examining different options and goals of governing bodies. Of particular importance are land use options and opportunities for sovereign groups that do not exist for tribal entities that hold only private land. Ownership of land, and the nature and extent of the bundle of rights held in any title, has real economic consequences for group members. A higher level of sovereignty allows a group to construct rules for its society that best suit its specific social and cultural needs rather than simply adopting the rules that bind the broader external society—and here, the important difference for economic development is that political sovereignty allows for more options in business enterprises than does private ownership. The bundle of rights a sovereign entity possesses is more expansive than the bundle of rights a private entity possesses. If an organization has the exclusive local right to produce a product or service that is in demand then they hold a comparative advantage over their hypothetical competitors—indeed, in the extreme example they have monopoly power. The obvious examples are casino gambling, marijuana cultivation, and cultural exports. In the case of casino (Class III) gambling, a tribal entity with reservation land that opens a casino in an area where state law prohibits others outside the reservation from opening © The Author(s) 2020 W. Edwards, Sovereignty and Land Rights of Indigenous Peoples in the United States, https://doi.org/10.1057/978-1-137-59400-6_6

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similar businesses has cornered the market. They wield monopoly power in their locality or region as long as they do not face competition from other sovereigns with the same idea. The same is true of marijuana production because the Department of Justice has stated it will not prosecute such activities in Indian Country even though they violate existing federal law.1 If the state in which the tribe implementing such an operation does not have any form of legal marijuana access, the tribal business operates unimpeded by law or (legal) competition. The binding constraints in these examples are the locations of the reservations relative to demand for the products, the nearness of other reservations that might compete in the same market, and the state laws prohibiting others from engaging in similar activities. The advantages tribal entities enjoy are also subject to the whim of external agents—states might change their laws at any time and the Department of Justice could also switch its position to one of enforcement just as quickly as it decided it would look the other way. For that matter, the law itself could change, altering any existing advantage. Cultural exports are one path of economic development that is not subject to the external shocks of federal department positions changes or the evolution of state law. Art, textiles, and other traditional products are unique and, to the extent that demand exists for them, are a reliable source of revenue for individuals and tribes. The other important characteristic of cultural exports is that they do not require sovereign land in order to be produced, although some other restrictions do apply. For example, it is illegal in the United States2 to sell goods that are falsely labeled as (or implied to be) made by indigenous people, so there are some regulations that must be observed in the commerce of cultural goods.3 These regulations were put in place to protect the work of indigenous people against fraudulent exploitation by outsiders.4 Whichever specific path is taken, or if many at once are pursued, there will always be the question of strategic planning and management of the established enterprises. Cornell and Kalt5 discuss the difference between the “standard approach” to development in Indian Country versus the “nation-building approach.” In the former, short-term goals are emphasized and are imposed by outside forces on tribes, and tribal institutions, preferences, and culture are seen as obstacles to economic development. In the “nation-building approach,” decision-making power rests with the tribal entity and decisions are strategic, which can be interpreted as more long term. For example, a short-term approach to profit maximization in an existing forest might be to clear cut it and gain immediate revenue from

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existing trees without respect to other uses of the forest or consideration for the time it would take for the forest to be regrown. A more strategic approach considers the revenue from the sale of cut timber but also recognizes the value of the forest for other uses, perhaps traditional ones, and recognizes that maintaining the forest through controlled harvest will generate revenue far into the future even though it will be at a slower rate. If sustainable development is the goal, then the nation-building approach is preferred.

1   Opportunities for Development in Sovereign Spaces The next three sections focus on American Indians’ development opportunities because marijuana production and operating Class III gaming facilities requires political sovereignty in most states (as of this writing). That being the case, Alaska Natives and Native Hawaiians are not able to establish their own operations of these sorts. In the third example, Native Hawaiians can participate in creating cultural exports, and they should be as protected by law as other indigenous people in the United States because legislation such as the Indian Arts and Crafts Act (1990) applies to federally and state acknowledged tribes. While Native Hawaiians are not federally recognized, they are recognized by the state of Hawai‘i as indigenous people. The fourth category, extractable resources, could apply to all three groups, although differences in sovereignty do come to bear. 1.1  Marijuana Cultivation The announcement of the Department of Justice (DOJ) that it would not seek to prosecute marijuana cultivation in Indian Country—a document that came to be known as the “Cole Memorandum”—was the source of much optimism for the possibility of a new revenue source for tribes but also confusion because the memorandum itself was somewhat vague. The DOJ issued a subsequent policy statement that was meant to clarify its position on enforcement. An excerpt follows6: The Cole Memorandum provides guidance to United States Attorneys on the proper prioritization of marijuana enforcement in their districts given the number of states that have moved to legalize marijuana for medicinal,

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agricultural, or recreational use. Specifically, the Cole Memorandum lists eight federal law enforcement priorities where the Department will focus its limited investigative and prosecutorial resources in all states. These eight priorities are as follows:

• Preventing the distribution of marijuana to minors;

• Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; • Preventing state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or illegal activity; • Preventing violence and the use of firearms in the cultivation and distribution of marijuana; • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and • Preventing marijuana possession or use on federal property. The Cole memorandum contains the additional directive that “nothing herein precludes investigation or prosecution, even in the absence of any one of the factors …, in particular circumstances where the investigation and prosecution otherwise serve an important federal interest.” Indian Country includes numerous reservations and tribal lands with diverse sovereign governments, many of which traverse state borders and federal districts. Given this, the United States Attorneys recognize that effective federal law enforcement in Indian Country, including marijuana enforcement, requires consultation with our tribal partners in the districts and flexibility to confront the particular, yet sometimes divergent, public safety issues that can exist on any single reservation. […] Consistent with the Attorney General’s 2010 Indian Country Initiative, in evaluating marijuana enforcement activities in Indian Country, each United States Attorney should consult with the affected tribes on a government-to-government basis. When in the judgment of a United States Attorney, significant issues or enforcement decisions arise that may implicate this policy statement, each United States Attorney should keep the Executive Office for United States Attorneys, the Office of Tribal Justice, and the

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Office of the Deputy Attorney General informed of those matters, in advance of any determination on how to proceed, in order to keep the Department’s leadership apprised of significant issues and to maintain consistency throughout the Department.

This “clarifying” statement did not go very far in alleviating uncertainty for many people concerned about these issues. Mainly, it reiterates the priorities established in the previous communication and specifically restates that the DOJ could at any time choose to prosecute activities that violate current federal law with respect to marijuana. It is not only the federal government that tribes have to worry about. The frequent issue of overlapping jurisdiction and whom exactly laws apply to shows up in the question about the legality of marijuana in Indian Country. The first tribe to legalize marijuana on its land was the Flandreau Santee Sioux Tribe in South Dakota. The tribe harvested its first crop late in 2015 but then suddenly suspended the operation and burned the crop. The issue was the legality of selling marijuana to non-tribal members—the tribe had legalized marijuana but tribal law only applies to tribal members. A non-tribal member who enters the reservation and ingests marijuana might be in violation of state law that prohibits the use of the substance because non-tribal members are subject to state law. The tribe issued a statement saying it intended to participate in the industry but wanted further government-to-government consultation to make certain there were no problems with their operation before proceeding.7 In order for the operation to be successful, the tribe would want to expand its operation to include demanders outside the reservation. If non-tribal members are not going to be able to buy the product legally, then the negative effects on the local community might exceed the positive effects of additional revenue. Some operations by tribes have been successful in Washington state, due to the tribes working directly with state authorities to satisfy their concerns. At the same time, the federal issues remain unresolved and statements from federal funding agencies about whether engaging in marijuana businesses will jeopardized federal dollars to tribes have been too vague to chance for many tribes.8 Marijuana has the potential to be a large source of revenue for many tribes, but until laws at both the state and federal levels are clarified, the uncertainty of prosecution leaves the crop out of reach for most interested parties. Although the guidance from the DOJ might seem to provide a blueprint to tribes for avoiding conflict with federal authorities,9 their

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position could always change and there are still state authorities to deal with. Changes in the political environment can drastically alter the outlook as well. For example, one of the potential nominees for Attorney General in the 2017 Republican administration was Senator Jeff Sessions who famously said, “Good people don’t smoke marijuana.”10 Sessions eventually became Attorney General for a time, and occasionally expressed interest in more forceful prosecution of violations of federal law related to marijuana, but he never generated much activity in this direction, and in any case, he has since been replaced. The uncertainty about the federal government’s position on marijuana in Indian Country remains. Besides the revenue consequences of producing consumable forms of marijuana, tribes also have to consider the social and health impacts of the ready availability of the intoxicant. Some tribes have banned alcohol on their reservation land and in Alaska villages because of the health consequences; marijuana might be viewed in the same light. This is an example of a possible conflict in tribal government goals. The only way forward, once the path is legitimately opened, is to weigh the positive and negative consequences and evaluate where marijuana fits in each tribe’s list of prioritized goals. 1.2  Casino Economies There is a strong incentive to establish casino and other gaming operations due the perceived and often real demand for gambling in the United States. Casino revenues in the United States in 2015 were reportedly over $71 billion,11 with overall revenues steadily increasing since 2010, nationally.12 In 2012, tribal gaming revenues were $27.91 billion, with 241 tribes operating 425 casinos in 28 states. Casino operations are sometimes thought to be recession-proof, but revenues did decline during the severe recession of 2008–2009 (3-year averaged growth rates remained positive during the entire time). The largest individual tribal operations are seen in the east, in Connecticut, but recent changes in state law legalizing gambling present challenges to tribal casinos there. Tribal gaming revenues in California and northern Nevada, the Sacramento Region of the National Indian Gaming Commission (NIGC), are the highest regionally and face fewer market-based challenges from other gaming operations, although on-line gaming poses continuing and perhaps increasing competition. As with casinos in the eastern United States, California and northern Nevada operations, while enjoying relatively high revenues, are not seeing much

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growth. There are many opportunities to establish, continue, and/or expand tribal gaming operations, but they vary by region and locality for reasons of demand, supply (competition), and the willingness of tribes to get involved.13 For some tribes, there are complicated legal issues. One example is the Alabama-Coushatta tribe of Texas. When the tribe’s federal recognition was restored in 1987 through legislation, the restorative act prohibited the tribe from operating any gambling facility prohibited by the state of Texas. A year later, the Indian Gaming Regulatory Act (IGRA), among other things, allowed tribes to start operations other than Class III gaming without consultation with the state their reservation was in when the Department of the Interior (DOI) authorizes it. The Alabama-­ Coushatta tribe has opened a Class II gaming facility after receiving approval from the DOI in 2016, but now faces opposition from the State of Texas.14 Every tribe has to face and address its individual circumstances. For many tribes, the benefits of gaming outweigh the costs. The Indian Gaming Regulatory Act restricts how revenues from gaming operations can be used by tribal entities. It specifies five authorized uses15: . 1 2. 3. 4. 5.

To fund tribal government operations or programs. To provide for the general welfare of the tribe and its citizens. To promote tribal economic development. To donate to charitable organizations. To fund the operations of local government agencies.

These categories are quite broad, allowing for a variety of activities and preventing very few. Common uses seen among many tribes include distributions to tribal members, donations to charities, infrastructure development, and payments to local governments. In some cases, casino revenues have allowed for socioeconomic improvements that would otherwise almost certainly not have happened, or at the very least would not have happened as quickly.16 Apart from revenue for a tribe, casinos and gaming operations also provide employment, often in places where there are limited job market opportunities. The economic activity generates positive externalities when visitors to the facility also spend money in other local businesses. Usually, tribes have negotiated tax payments with state and/or local governments, transfers which represent tax dollars that otherwise would not exist. There is also considerable evidence that reductions in poverty and improvements

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in education have become possible as the result of the economic development surrounding tribal casinos since the IGRA.17 Casinos also produce negative externalities. For example, commonly cited possible problems associated with the ready access to gambling facilities include gambling addiction, bankruptcy, drug abuse, and suicide. Akee, Spilde, and Taylor note that “Empirical research of gambling pathology has failed to identify large net costs.”18 Certainly some individuals experience negative outcomes, but the causal extent of a casino’s presence has not been established in anything other than an anecdotal way. Wolfe et al.19 calculate that, while negative externalities (consequences) of casinos exist, the net effect on health is positive due to the increased income tribal members receive in the presence of the casino. An externality previously discussed is disenrollment, a situation where tribal governments seek to push out some members so that distributions of casino earnings to the remaining members will be higher. There is considerable debate about to what extent (or even whether) this happens. After all, no tribal government would state disenrollment of some of its members as a policy tool to increase dividends. As Russell20 points out: The exact number and exact location of revoked tribal citizenship is not easily knowable. Any publicity comes from the Indians being terminated. Those doing the terminating have little reason to advertise their actions. The Bureau of Indian Affairs does not track the epidemic in public documents and does little to stop it.

Negative externalities unquestionably exist for casinos, but there is little evidence of systemic net negative outcomes for tribal casino operations generally. It is true that some casinos are more successful than others, and that a few have even failed, leaving the tribe with net losses. Nevertheless, as an economic development alternative, gaming operations offer considerable promise to many tribes. 1.3  Cultural Exports and Tourism Indigenous people are in a unique position to create art and other products derived from their cultures, giving them a comparative advantage in the marketplace for such items. The Indian Arts and Crafts Act (1990, and as amended in 2000) is meant to limit competition in this market by outlawing the production of articles by non-Indians. The industry, estimated

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in 2008 to be over $1 billion, suffers from the sale of forgeries in up to half of the total value of all transactions.21 Enforcement of the law is sometimes a problem. Mantilla22 points out that the Indian Arts and Crafts Act places the burden of action on Indians—they (or law enforcement or other agents) must identify parties not complying with the Act and bring the violation to a legal proceeding. There is a government entity that has been established to assist in preventing the fraudulent production and sale of Indian-looking goods, the Indian Arts and Crafts Board (IACB). The IACB of the Department of the Interior describes its mission this way23: A top priority of the IACB is the implementation and enforcement of the Indian Arts and Crafts Act (Act). The Act is a truth-in-advertising law that provides criminal and civil penalties for marketing products as “Indian made” when such products are not made by Indians, as defined by the Act. The Act protects Native American artists and craftspeople, businesses, and Tribes, as well as consumers. It also protects the integrity of Native American cultural heritage and the economic self-reliance of Tribes and their members.

Besides assisting in enforcing the law, the IACB offers other support including seminars on producing goods and an on-line directory for those seeking to buy and sell. As an activity that could be cultivated into a money-making enterprise, arts and crafts has great potential and can be started virtually anywhere with a relatively small investment at an entrepreneurial level. While any individual faces competition from other legitimate merchants, the combination of IACB assistance and technological advances make finding customers and selling over the internet easier all the time. The creation of saleable arts and crafts has the potential to help many hundreds or even thousands of individual Indians supplement their income, particularly in environments where market jobs are scarce. Tourism is another possible area for development that could benefit some individuals and tribes if they happen to be in a place where people want to visit for recreation or close enough to a large enough population to make cultural tourism workable. Tribes can create their own parks similar to state and national parks to attract visitors where interest exists, such as on the Navajo Nation. Popular tourist destinations like ski resorts are a possibility for some tribes, or coastal resorts for summer vacationers.24 As with casinos or any other recreational facility, tribes face potential competition from private organizations and, in the case of parks and museums, local, state, and federal entities. Natural places are almost by definition

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unique and professional marketing programs can help attract visitors to tribal enterprises. In addition, tourist attractions like museums and art exhibits can be combined with other enterprises like hotels and casinos in order to create additional demand for all the facilities. 1.4  Endowments of Extractable Resources As a private citizen and a land owner in Alaska, an individual does not have ownership of resources buried in the ground. The subsurface rights to oil and other minerals are owned by the State of Alaska.25 Alaska Native Regional Corporations, on the other hand, do have subsurface rights to any land they own. While this right does not convey political sovereignty in the way it has been expressed in this book, it does offer a right to the corporation others (private citizens) do not possess and therefore creates a comparative advantage. Federal Trust Land belonging to tribes in the Lower 48 generally conveys subsurface rights to the tribal entity and are often managed (or “overseen” or “managed in consultation with”) the Bureau of Land Management.26 The extent to which subsurface rights in the Lower 48 are unique arrangements varies, but the existence of marketable extractable resources and the rights to them are valuable assets to tribes who possess them. In the case of Native Hawaiians, extractable resources are not really available and similar production would be more along the line of agricultural cultivation. If an extractable resource was available in a Hawaiian Home Land setting, the terms of the lease would theoretically apply. There are many issues related to mining and petroleum drilling, including pollution and environmental degradation, sub-optimal leasing arrangements negotiated by federal or state authorities on behalf of tribal entities, and the general question of developing the land in the first place. I will consider the first two briefly here; the third has been discussed extensively elsewhere in this book. Pollution and negative health effects of mining and petroleum operations have been a concern during the entire life of the industry. In 2016, one of the biggest national news stories was the Dakota Access Pipeline project which was designed to carry oil from North Dakota to Illinois. The pipeline crossed near the Standing Rock Sioux reservation and threatened sacred sites in its construction and water supplies in the case of pipeline leaks. Although the project had been studied for years and approved after extensive opportunity for public comment, protests were mounted

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for months in opposition to the project once its construction began, periodically halting work. While the protests ultimately made no difference in the fate of the project (it proceeded anyway), the Standing Rock protests highlight the seriousness of environmental concerns for people potentially affected by extractive (and related) activities. The protests have become symbolic of American Indian struggles in the eyes of many in the media and the public because of the vocal outcry from many individual Indians and Native American groups, but not all Indians opposed the pipeline. The oil industry has brought high paying jobs to many people in the northern plains—including many Indians—where unemployment had been previously quite high among some groups and where wages had been low. Oil, gas, and mining leases on Indian land have customarily been negotiated by the federal government on behalf of tribes as part of the United States’ trust obligation. Tribal nations have complained that the leases negotiated were not as good as they could have been, and that because of the nature of the mechanism—the BIA negotiated the lease, collected the royalties, then distributed them to the tribe—delays and inefficiencies were common. One example is the Jicarilla Apache reservation which sits on valuable subsurface oil and natural gas. The original leases negotiated by the federal government did not include any provision for tribal taxation which, as a sovereign entity, the tribal government should be able to impose (like the State of Alaska does, e.g., for oil extracted in its state). While the Jicarilla Apache were eventually successful in applying a tax to extracted resources, they were forced to go to court to do so, a decision that eventually passed through to the Supreme Court.27 Over time, tribes have gained more direct control of their leasing arrangements with private companies, but in general leases still have to be approved by federal authorities, a process that is often slow and unpredictable. The bureaucracy involved, although perhaps an improvement over past practices, is still enough to discourage development in some places, both from the perspective of oil and gas companies and from the perspectives of tribes themselves who have had previous bad experiences where their interests were not well represented.28

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2   Tribal Government Goals The stated goals of tribal governments have a lot in common, one to the next. They include things one would expect as economic goals for any government such as increased employment, economic growth, and sustainability into the future. Also included in most declarations is the goal of preserving the culture of the tribe and also remembering the tribe’s history. Achieving any substantive goal requires a commitment of significant resources and, since resources are not unlimited, choices have to be made. In Chap. 5 I discussed the importance of prioritizing goals. In this section I will discuss more specifically the issues and alternatives tribal governments have (or face) when deciding how the resources of the tribe will be developed and used. 2.1  Human Welfare or Profit Maximization? If tribal entities follow a corporate profit maximization model, then they will create for-profit enterprises that exploit their comparative advantages in an effort to generate as large a gap as possible of revenue over expenses. It can be argued that maximizing profits will result in improved social (tribal) welfare because the increase in economic activity of tribal businesses generates local employment and has positive externalities such as generating demand for supporting enterprises. Additionally, profits can be distributed to tribal members, increasing their non-market income. This outcome is a best case scenario where the business enterprises themselves are successful, they actually do generate demand for supporting businesses, and management decides to disburse some of the earnings to tribal members. The extent to which any of these things would happen is uncertain. The creation of businesses requires resources. If the businesses are successful and the tribe and tribal members prosper from them then the investment was worthwhile. There is no way to know ahead of time how things will turn out, but that is not a unique circumstance for tribes—anyone who starts a business faces that same uncertainty. One example of great success is the Mohegan Tribe of Connecticut which operates a very successful casino and resort. Using some of the profits generated by its casino operations, the tribe supports social programs such as education and local hospitals. The tribe has an agreement with the State of Connecticut to pay a portion of its earnings to the state in place of state taxes, so the surrounding state also benefits from the tribe’s success, as do

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other Indian tribes because the Mohegan tribe returns 75% of the Tribal Priority Allocation funds it receives from the Bureau of Indian Affairs.29 A success of this magnitude is rare for any company among indigenous people in the United States or any other group. An alternate use for tribal resources is to deliver services. The creation of non-profit enterprises that focus on the needs of tribal members sets the goal at the human welfare level rather than the profit maximization level. Such an enterprise would have to generate sufficient revenue through the sale of goods and services and/or through donations and grants in order to fund its operations. A non-profit service business faces more funding uncertainty than demand uncertainty, and it might have to charge its clients for the services it provides, reducing its efficiency in achieving its goals. As with for-profit businesses, uncertainty about the success—or even the continued existence—of a non-profit business is always present. A combination of the two approaches is another option. If a tribe has opportunities for profit-making businesses then it could exploit them and, at the same time, create non-profit service operations. In fact, service companies are a way to distribute profits to members in the form of goods and services rather than cash. In order for this scenario to be workable, the exploitable profit-making opportunity has to first exist. The Mohegan Tribe example given above is an exceptional case—most tribes do not have such opportunities. One example is the Fort Bidwell Reservation, which is located in the northeast corner of California. The reservation population was 94  in 2010, and tribal enrollment was 316  in 2014. Because of its remote location and its small tribal enrollment (and even smaller reservation population), the tribe does not have a large number of exploitable business opportunities. The economy relies on small scale agriculture and forestry.30 As a result of the low level of exploitable business opportunities, the goal of profit-oriented enterprises generating enough revenue to fund human welfare endeavors is not reasonably attainable. Fort Bidwell and other tribal entities in a similar situation continue to do what they can to develop business opportunities but ultimately, until a large opportunity becomes available, they must focus on the more immediate needs of their tribal members. A balance can only be achieved when there are enough opportunities and resources to balance.

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2.2  Land Use, Sacred Sites, and Culture Preservation It is thought by many that indigenous peoples in the past have been the best stewards of natural places because they have had a traditional interest in maintaining the environment for their own sustained preservation, and for the sake of the land itself, indefinitely into the future. The loss of land and land use by indigenous peoples over the centuries in the United States has removed their stewardship as a realistic possibility in most places. There are sacred sites on some reservations, and reservation land is under the subordinate political control of tribes. Many natural and sacred places, however, are not. One example is the Black Hills area in South Dakota and Wyoming. While there are several reservations in South Dakota and one in Wyoming, none is situated primarily in the Black Hills, and in particular reservations do not encompass sacred places like Devil’s Tower (Bear Lodge) or the Medicine Wheel in the Bighorn Mountains. While indigenous people do not have the political authority to protect these two sites, the federal government has done so. Devil’s Tower is a National Monument (as of 1906), and it is preserved and managed by the National Park Service. It is not set aside as a sacred place and its use is maintained as a tourist destination and recreational area. The Bighorn Medicine Wheel was listed as a National Historic Site in 1970, and renamed Medicine Wheel/ Medicine Mountain National Historic Landmark in 2011. The site is managed as part of the Bighorn National Forest. There are not always park attendants at the Medicine Wheel, but information at the site requests that visitors respect the place and follow rules that American Indians who still use the place for ceremonies have specified, such as walking around the wheel in a clockwise direction, not disturbing the stones that make the wheel, and to tread lightly on the vegetation in the area.31 Some US government preservation efforts are therefore in place, and the Medicine Wheel is still in use by Native people for traditional purpose as well as being a tourist destination. There are hundreds of sites in the United States that are sacred to indigenous people, some of which are maintained by state or federal government agencies, some under the control of tribes, and many on private land that do not necessarily receive any special protection. Archeological sites and burial grounds, when discovered, are theoretically required to be reported to government agencies for evaluation and possible protection, but the extent to which this happens is unknown. The Standing Rock Sioux tribe’s opposition to Dakota Access Pipeline mentioned earlier in

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the chapter is an example. The tribe was not only concerned about the possibility that a leak from the pipeline could contaminate its drinking water but also that its construction, although none would occur on the actual reservation, would disturb burial sites outside of reservation boundaries. The pipeline project went through the usual process for approval, as mentioned above, including extensive opportunities for public comment. After its approval, the tribe began a protest that gained significant external interest. Although ultimately unsuccessful, the protests did slow down the project for a time when the Army Corps of Engineers temporarily denied an easement to drill beneath a damned section of the Missouri River.32 It does show that if enough concern is raised and mobilized some action can be taken in an attempt to protect the interests of indigenous people, even off of reservations. Part of the protests at the pipeline construction site was initiated by the tribal authority, a manifestation of tribal government action, although not an exercise of sovereign authority, in furtherance of tribal goals. 2.3  Governing Whom? The decisions that tribal governments make are meant to be in the best interest of tribal members, as any government’s decisions would be. There is always the problem of trying to decide what to do when citizens disagree. In a large, national economy, the answer is often to try to please the “average,” or “representative agent.” In some cases, programs are targeted at needy groups in society, but even then there is the question of how to serve them best, and the “representative” idea often emerges. In the case of tribal governments, the issue often takes on a sharp and dichotomous distinction: members who live on reservations versus members who live elsewhere. As mentioned in Chap. 4, only 33% of the people who live in “Indian Areas” (as defined by the US Census) identify as American Indian or Native Alaskan.33 People who live in a particular place—a reservation—have a different relationship with the land than people who do not live there, even if the absent parties’ ancestors are from there. Decisions by a tribal authority, therefore, must focus on one or the other group if preferences are divergent. Alternately, if decisions are made by popular vote in a referendum process, choices depend on coalition-building and decisions run the risk of alienating large segments of the group. Even beyond the issue of residency, the question of economic development highlights dichotomous divisions between groups who stand to benefit

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financially from development and those who do not (or do not care to). Returning to the example of the Standing Rock Sioux and the opposition to the Dakota Access Pipeline project, opposition was not universal among tribal people. Some have found high paying jobs in the extractive industries that will ultimately depend on the ability to deliver the harvested resources to markets—in this example, the pipeline. As a result, some Indians who had gained jobs that they would certainly have lost if the pipeline project had been aborted understandably have a different attitude and perspective on oil and natural gas development than do the protestors.34 Another example is Villages in Alaska that face destruction from coastal erosion. Shaktoolik is located in western Alaska, sandwiched between the Bering Sea and the Tagoomenik River. Coastal erosion is sweeping more and more land out to sea every year, and flooding has become a critical concern. The question villagers face is whether to try to relocate their village or reinforce the coastline against erosion. Many other villages are in the same dire condition, and some, like Kivalina and Shishmaref, have decided to relocate. Shaktoolik, for now, has opted to stay where it is. The decision was a difficult one to make because neither option is very appealing. Relocating will take many years, perhaps a decade, and cost at least tens of millions of dollars. Once a village announces it is planning to relocate, it often begins to lose funding for physical facilities because funding agencies know they will have to be abandoned and rebuilt very soon. During the process of relocation occurring over many years, these services are still vital—children still need to go to school, health services are still required, and so on. Remaining, however, is also extremely expensive and external funding is not easily acquired. It would be difficult to make a decision in these circumstances if the current location was equivalent to the destination location, but that is not always the case. The alternate site for Shaktoolik identified by village leaders is more than ten miles away, inland. After all, to escape the problem of an eroding coastline, it makes sense to move away from the coast. However, traditional and cultural activities depend on fishing and hunting. Moving away from the sea would make it more difficult to maintain these vital community functions and many villagers are worried their way of life will suffer or even disappear if the village is moved. Shaktoolik has faced this same problem before. The current location of the village was one of two choices villagers voted on in the 1960s after similar problems with the previous location led to the need

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to relocate. The choices were the current location or one on higher ground—the current location won by three votes.35 The issue of a split electorate is not unique to indigenous people in the United States. The past several presidential elections have been quite close, and twice in sixteen years the winner in electoral college has received a minority of the popular vote. While it is true that people in the United States can be vehement in their support of either a Republican or a Democrat, and individuals might feel that some of their beliefs are not embraced by the other candidate, the general population in the United States does not face the prospect of the complete elimination of their culture, or the destruction of cultural activities their communities have engaged in for hundreds of years, or the wholesale relocation of their entire communities to a different place. In this way, the decisions that many tribal communities face are deeper and more far reaching than the ones experienced by the general population. Tribal governments are designed around democratic processes whereby the majority rules. No matter how serious the issue, or how divisive, a decision is ultimately made either through a referendum popular vote or by a council whose members were elected through a popular vote. Because there is no political process that can ease the impact of a divisive decision, political transparency is the most that can be achieved, beyond which it is up to the leaders themselves to bring people with differing voices together.

3   Lost in the Aggregation Indigenous people in the United States are often thought of and talked about as if they are a homogeneous group. In this book, I have collected people into three aggregated categories: American Indians, Alaska Natives, and Native Hawaiians. The intention of this aggregation was to discuss group differences in law, treaty history, political sovereignty, and land rights these groups have experienced because there are significant differences between the groups and significant similarities within them. Yet every human being is an individual and is therefore at least somewhat different from every other human being. A similar distinction must be made for tribes: they have similarities, but they also all have differences. Political policy and economic development would work best if it were tailored to the needs of each separate group, but that approach is unrealistic. It is for indigenous people themselves to decide what is in their best interests. Self-determination places the power and the right—and the

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burden and the obligation—on the indigenous people themselves to choose their own paths and complete their own destinies. An unfortunate reality is that relatively small groups will inevitably be lumped into relatively larger ones—Native Hawaiians, for example, will almost certainly receive the same basic treatment from the federal government regardless of what smaller Native Hawaiian group they might be a part of, as will Alaska Natives and, to a somewhat lesser extent, American Indians. There is no escaping this aggregation because it is an entrenched part of the existing legal and political framework, and there is not enough incentive for external constituents to exert the necessary effort to change it.

Notes 1. US Department of Justice (2014). 2. According to the Indian Arts and Crafts Act (1990). 3. Sheffield (1997), p. 3. 4. Mantilla (2012). 5. Cornell and Kalt (2010). 6. US Department of Justice (2014). 7. Manning (2015). 8. Echo-Hawk (2016). 9. Pierson (2016). 10. Ingraham (2016). 11. Statista (2016). 12. RubinBrown (2015), p. 1. 13. Ibid. 14. Doster (2016). 15. Miller (2013), p. 80. 16. Harvard Project (2008), p. 150. 17. Akee et al. (2015). 18. Ibid., p. 200. 19. Wolfe et al. (2012). 20. Russell (2015). 21. Harvard Project (2008), p. 302. 22. Mantilla (2012). 23. Indian Arts and Crafts Board (2011). 24. Miller (2013), pp. 53–54. 25. State of Alaska (2015). 26. US Department of the Interior (2016). 27. Wilkinson (2005), pp. 249–251. 28. Regan (2014).

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29. Mohegan Tribe (2016). 30. Tiller (2015), pp. 287–288. 31. Wyoming State Historical Society (2016). 32. Healy and Fandos (2016). 33. Norris et al. (2012), pp. 13–14. 34. New Labor Forum (2016). 35. Goode (2016).

Bibliography Akee, Randall K.Q., Katherine A.  Spilde, and Jonathan B.  Taylor. 2015. The Indian Gaming Regulatory Act and Its Effects on American Indian Economic Development. Journal of Economic Perspectives 29 (3): 185–208. Cornell, Stephen and Joseph P. Kalt. 2010. “American Indian Self-Determination: The Political Economy of a Successful Policy.” Joint Occasional Papers on Native Affairs Working Paper No. 1. Native Nations Institute for Leadership, Management, and Policy, and The Harvard Project on American Indian Economic Development. Accessed 12-14-2016, http://nni.arizona.edu/ pubs/jopna-wp1_cornell&kalt.pdf. Doster, Adam. 2016. Betting on the Fate of Gambling in Texas. Houstonia. http://www.houstoniamag.com/articles/2016/10/24/gambling-texasnaskila-entertainment-alabama-coushatta-indians. Accessed 28 Jan 2016. Echo-Hawk, Lael. 2016. Cannabis in Indian Country  – A Year Later… Smoke Signals Indian Law Blog.http://www.smokesignalsindianlaw. com/2016/01/28/cannabis-in-indian-country-a-year-later/. Accessed 18 Nov 2016. Goode, Erica. 2016. A Wrenching Choice for Alaska Towns in the Path of Climate Change. New York Times on-line. http://www.nytimes.com/interactive/2016/11/29/science/alaska-global-warming.html?_r=0. Accessed 6 Dec 2016. Harvard Project on American Indian Economic Development. 2008. The State of the Native Nations: Conditions Under U.  S. Policies of Self-Determination. New York: Oxford University Press. Healy, Jack, and Nicholas Fandos. 2016 Protesters Gain Victory in Fight Over Dakota Access Oil Pipeline. New York Times on-line. http://www.nytimes. com/2016/12/04/us/federal-officials-to-explore-different-route-fordakota-pipeline.html?hp&action=click&pgtype=Homepage&clickSource=st ory-heading&module=first-column-region®ion=top-news&WT.nav=topnews. Accessed 5 Dec 2016. Indian Arts and Crafts Board. 2011. Brochure. https://www.doi.gov/sites/doi. gov/files/uploads/iacb_facts_brochure_2011.pdf. Accessed 29 Nov 2016.

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Ingraham, Christopher. 2016. Trump’s Pick for Attorney General: ‘Good People Don’t Smoke Marijuana’. The Washington Post.https://www.washingtonpost. com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-generalgood-people-dont-smoke-marijuana/. Accessed 18 Nov 2016. Manning, Sarah Sunshine. 2015. Flandreau Santee Sioux Tribe Burns Crop, Suspends Marijuana Operation. Indian Country Today Media Network.com. http://indiancountrytodaymedianetwork.com/2015/11/08/flandreau-santee-sioux-tribe-burns-crop-suspends-marijuana-operation-162363. Accessed 18 Nov 2016. Mantilla, Nina. 2012. The New Hawaiian Model: The Native Hawaiian Cultural Trademark Movement and the Quest for Intellectual Property Rights to Protect and Preserve Native Hawaiian Culture. Intellectual Property Brief 3 (2): Article 3. Miller, Robert J. 2013. Reservation Capitalism: Economic Development in Indian Country. Lincoln: University of Nebraska Press. Mohegan Tribe. 2016. Tribal Enterprises. http://mohegan.nsn.us/government/ tribal-enterprises. Accessed 5 Dec 2016. New Labor Forum. 2016. Unions Weigh in on the Dakota Access Pipeline. The Murphy Institute / CUNY School of Professional Studies. http://newlaborforum.cuny.edu/2016/09/30/unions-weigh-in-on-the-dakota-access-pipeline/. Accessed 15 Jan 2017. Norris, Tina, Paula L.  Vines, and Elizabeth M.  Hoeffel. 2012. The American Indian and Alaska Native Population: 2010. 2010 Census Briefs, Document C2010BR-10. Washington, DC: United States Census Bureau. Pierson, Brian L. 2016. Exploring Indian Country Marijuana. The National Law Review.http://www.natlawreview.com/article/exploring-indian-country-marijuana. Accessed 18 Nov 2016. Regan, Shawn. 2014. Unlocking the Wealth of Indian Nations. PERC Policy Brief No. 1.http://www.perc.org/sites/default/files/pdfs/IndianPolicySeries%20 HIGH.pdf. Accessed 30 Nov 2016. RubinBrown. 2015. Commercial and Tribal Gaming Stats ’14. Denver: RubinBrown LLC. http://www.rubinbrown.com/RubinBrown_2014_ Gaming_Stats.pdf. Accessed 28 Nov 2016. Russell, Steve. 2015. Disappearing Indians III: Carving Up the New Buffalo. Indian Country Today Media Network.com. http://indiancountrytodaymedianetwork.com/2015/08/04/disappearing-indians-iii-carving-new-buffalo-161278. Accessed 29 Nov 2016. Sheffield, Gail K. 1997. The Arbitrary Indian: The Indian Arts & Crafts Act of 1990. Norman: University of Oklahoma Press. State of Alaska. 2015. Alaska Statutes, Title 38, Chapter 5, Alaska Land Act. http://touchngo.com/lglcntr/akstats/statutes/Title38/Chapter05.htm. Accessed 30 Nov 2016.

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Statista. 2016. Statistics and Facts About the Casino Industry. The Statista Portal. https://www.statista.com/topics/1053/casinos/. Accessed 3 Nov 2016. Tiller, Veronica E.  Velarde. 2015. Tiller’s Guide to Indian Country. 3rd ed. Albuquerque: BowArrow Publishing. The Indian Arts and Crafts Act (1990) refers to the legislation, the text of whcih can be found here: https://www.doi.gov/iacb/indian-arts-and-crafts-act-1990. US Department of Justice. 2014. Policy Statement Regarding Marijuana Issues in Indian Country. Memorandum. https://www.justice.gov/sites/default/files/ tribal/pages/attachments/2014/12/11/policystatementregardingmarijuanaissuesinindiancountry2.pdf. Accessed 18 Nov 2016. US Department of the Interior. 2016. Mineral and Surface Acreage Managed by the BLM. https://www.blm.gov/wo/st/en/info/About_BLM/subsurface. html. Accessed 30 Nov 2016. Wilkinson, Charles F. 2005. Blood Struggle: The Rise of Modern Indian Nations. New York: W. W. Norton. Wolfe, Barbara, et  al. 2012. The Income and Health Effects of Tribal Casino Gaming on American Indians. Demography 49: 499–524. Wyoming State Historical Society. 2016. Medicine Wheel. http://www.wyohistory.org/encyclopedia/medicine-wheel. Accessed 1 Dec 2016.

CHAPTER 7

Conclusion

Political sovereignty and land interact to create a place where people can live together, fostering their likenesses and their individualities in whatever ways serve them best as individuals and as a collective. Sovereignty is critical; it is essential. For the peoples discussed in this book, the level of political sovereignty they experience is at best subordinate and at worst non-existent. Sovereignty itself in this context can be seen as a pacifier in a way, because it is quite limited. While not without value, some of what political sovereignty brings to indigenous peoples in the United States can be delivered in other ways. The political space Native Americans, Alaska Natives, and Native Hawaiians inhabit is the result of a long evolution of their relationships with the federal government. As far as it goes, American Indians have the most political sovereignty, followed by Alaska Natives and then Native Hawaiians, the latter having none at all. The federal government in the United States gives every impression that it is committed to the current arrangements, encouraging subordinate political sovereignty and what it calls a government-to-government relationship with acknowledged tribes. These arrangements were, for all intents and purposes, unilaterally imposed by the United States. What choice did tribes really have in negotiation, facing an overwhelming external power? In recent decades, disputes and issues are mostly settled through the court system, which gives tribes a more even footing in terms of their ability to argue a case (if they have good lawyers and sufficient financial resources), but the rules themselves—the judiciary—were © The Author(s) 2020 W. Edwards, Sovereignty and Land Rights of Indigenous Peoples in the United States, https://doi.org/10.1057/978-1-137-59400-6_7

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established by the US political entity. Tribes still have to operate under the rules of the external power. The question, then, of what tribes are actually getting from this sovereign arrangement becomes increasingly important due to the environment in which whatever power they have can be exercised. A valid question arises: Would alternate arrangements be just as good or even better in terms of achieving tribes’ goals? Still, giving up the current level of political sovereignty is a terrible risk to take, no matter how appealing alternatives appear. The important decisions indigenous people face now is: What comes next? Given the changes that have occurred in the past—sometimes desperately slow and sometimes shockingly sudden—the future is uncertain. To the extent that the future can be influenced by the actions of individuals and institutions, in which direction should indigenous people go?

1   Land and Sovereignty Alternatives What should and can be done now? The history of indigenous peoples in the United States is important, not only to indigenous people themselves, but to all citizens. Society must remember its history, and if wrongs have been done, we must endeavor to avoid making those mistakes again and we should, whenever possible, make amends. No settlement could ever take away the suffering and loss that Native Americans, Alaska Natives, and Native Hawaiians have experienced in the past. Nevertheless, a settlement does acknowledge that the wrong has been done and it helps current and future generations of the injured people live better lives. While what happened in the past is important, the present and the future are more important; people living now are more important. What can and should be done now, moving forward, that will make individual indigenous people in the United States as well off as possible? In the end there are three possible general directions that the relationship between tribes and the US government can take: continue on the current path, eliminate (or weaken) the sovereign arrangements that exist, or strengthen the sovereign arrangements. The third option is so unlikely that considering it seriously seems imprudent—the US government has never given any indication that it is willing to convey more extensive sovereign rights to indigenous people in the country. Indeed, the Unites States’ initial rejection of the United Nations Declaration of Rights of Indigenous Peoples and its subsequent heavily conditional pseudo-­ acceptance is a strong statement in the direction of not extending

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sovereign power or land rights of tribes.1 As a matter of federal policy, increasing sovereignty is extraordinarily unlikely. To be clear: the third scenario is without question the best possible outcome for indigenous peoples. If greater sovereignty was obtained, then the government-to-government relationship with the federal government would be more equal. Under these circumstances, the ability of tribes to achieve self-determination and all their other goals would improve and the chances of successful programs and initiatives would increase. It is simply that, given what has happened so far in the history of the relationship between indigenous people and the US government, increasing the level of sovereign rights does not seem to be a reasonable possibility. I will therefore consider only the first two alternative paths in the following discussion. 1.1  Maintain the Present Arrangement If the present order continues, what are the likely outcomes for indigenous peoples in the United States? In Alaska, the political and commercial arrangements among and between village corporations and regional corporations are reasonably robust. Some regional corporations generate more revenue than others, but profit sharing for extractives evens the asset revenue flow somewhat. There is considerably more variation among village corporations, with some generating large revenues and others languishing in dependency. Special issues such as coastal erosion2 fall upon villages exclusively, and cut deeply into any potential for economic advancement. Industry and economic output continue to come from either extractable (oil, gas, mining) or exhaustible (fishing, timber) sources, which are finite by definition and subject to fluctuations in demand and resource stock management failure or success. The best case scenario is for regional corporations, and as much as possible, village corporations, to diversify their activities into other areas locally and regionally, and make financial investments externally in order to insulate revenue streams against fluctuations and against the eventuality of the end of extractive stocks. The worst case scenario is a complete reliance on industries that will eventually shrink and possibly disappear altogether. Diversification is a better option because exogenous shocks strongly affect the current dominant industries. For example, whether oil drilling will be allowed in the Alaska National Wildlife Refuge or not depends not upon a decision made by Alaska Natives or even non-native Alaskans alone, but

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rather upon the executive and legislative branches of the federal government. The sustainability of fishing and crab harvesting depends on many factors outside of the control of local fisherman such as ocean temperature and pollution. Diversification allows for more control over future financial flows, even in the face of financial asset uncertainty. Cultural preservation of Alaska Native heritage is largely in private hands because there is no political sovereignty for Alaska Native groups. State and federal dollars assist Native organizations in activities that preserve and promote awareness of Alaska Native language, art, lifestyles, and history. The Alaska Native Heritage Center in Anchorage is an example of a facility that is funded by grants, donations, and its own revenue. The Center is dedicated to educating the public about Alaska Natives, their culture and contributions to the state. Creation of this facility did not require political sovereignty and there is no reason to think it cannot continue to exist without it. The well-being of Alaska Natives under the current arrangements will depend upon the success of regional and village corporations and the continued support of federal and state programs. People who choose to stay in remote places in Alaska (or who have no alternative other than to be there) will face the same service access rigidities they have faced in the past, with local fluctuations. There is no dispute that the Alaska Native Claims Settlement Act (ANCSA) and the distributions that flowed from it have improved the income and wealth positions of Alaska Natives compared to their financial positions prior to the Act. Continued financial distribution from the regional and sometimes village corporations also enhance money income. The loss of traditional activities that has resulted from changes since ANCSA are felt more strongly by some people than others, and the non-monetary welfare set Native people experience has changed. Judging by the available data, Alaska Natives are better off as a group now than they have been in the past. The rate of advancement in welfare for Alaska Natives has diminished and is perhaps approaching a limit which is below state averages for measurables. It is unknown whether changes in political sovereignty and an expansion in the bundle of rights related to land that Natives control would improve the welfare of individuals. The overall well-being for any group of people, as discussed throughout the book, depends on many things other than money. The final determination of net improvement or diminishment of well-being is ultimately murky. If the present order continues, Native Hawaiians will probably eventually get federal acknowledgment status and have a government-to-government

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relationship with the United States, based upon official government statements and the apparent momentum of popular support among Native Hawaiians for such an arrangement.3 While it is true that not every individual Native Hawaiian wants such a political separation, the steps that have already been taken by the state and indigenous groups point toward this ultimate goal. The land settlement that would follow the successful achievement of federal recognition is unclear. If no land (with whatever bundle of rights) was ceded to the emergent tribal authority, then the political status would carry very limited value. In the case of Alaska Natives, even though they did not receive reservation space, they did receive a settlement that transferred land with special privileges (e.g., subsurface rights to regional corporations). The land in Hawai‘i that is more or less already set aside for Native Hawaiians is the 200,000 acres of Hawaiian Home Lands. If the status of that land does not change (long-term leases are available for primarily residential purposes), then there would be no physical place to assert or employ any advantages that political sovereignty conveyed. If any land is conveyed, the current Home Lands are the most likely space because they are already set aside and because, given the scarcity of land in the islands, large opposition to any other land cession is certain. The best case scenario, then, in terms of land acquisition is political sovereignty with the Hawaiian Home Lands converted into reservations or conveyed in a manner similar to the ANCSA process. There is no advanced indication that this would happen, and given opposition faced in the past by legislation such as the Akaka Bill, the idea of a land transfer to sovereign Native Hawaiians is extremely optimistic. The worst case scenario would be no change at all—no government-­to-­government relationship and no land transfer. The well-being of Native Hawaiians might not be very different in either the best case or worst case scenarios. As an indigenous group, Native Hawaiians are already more integrated into the general (non-Native) population than are American Indians because they have no sovereign space in which to isolate themselves. They are also more integrated than Alaska Natives because, while populations vary from island to island, there is not as much remote space in Hawai‘i as there is in Alaska for natives to inhabit as a majority and maintain traditional activities and life styles. Indeed, only 29% of the people who identify as Native Hawaiian live in Hawai‘i.4 The level of integration is unlikely to change in the worst case scenario—where things remain as they are now—and in the best case scenario for land acquisition, it is unclear whether Native Hawaiians would be very

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interested in creating a separation from the general population that they have integrated into. Given the relatively high level of funding and interest in cultural preservation that exists from the state, and given that Native Hawaiians are already eligible for many if not most federal programs available to federally acknowledged tribes, there is little to gain (in the absence of land) from any likely sovereign separation agreement that is similar to what other indigenous peoples in the United States maintain. If the present order continues, American Indians will likely continue to improve their current businesses and expand into new ones—the present trajectory they are on. Questions of land rights and sovereignty have moved away from direct agreements and negotiations with the federal government (despite the official emphasis on a government-to-­government relationship) and into the court system. As tribal government and business management experience grows, efficiency and productivity will increase overall. Some tribes, unfortunately, will almost certainly remain impoverished because of their present low level of assets and their locations. There are many reservations that are in fairly remote places, and their economies resemble non-Indian persistent poverty places in other parts of the United States. Limited access to services and limited development potential will not improve because there is no momentum in the positive direction and because some tribes have little to work with. Even in large reservations, like the Navajo Nation, there are persistent problems despite the sophisticated government and judicial systems that exist there. The Navajo Nation has made steady progress in addressing its economic conditions and will surely continue to improve, but it faces many obstacles given its large population and the remoteness of much of its land. Some tribes that are doing exceptionally well will continue to prosper. One example is the Mohegan Tribe in Connecticut which operates a very profitable casino. All of this success did not come without challenges, however, and the economic and legal landscape continues to shift. Recent changes in Massachusetts law has opened the door for Class III gaming in New England that will compete directly with the Mohegan Sun casino and the other major tribal casino operation in Connecticut, Foxwoods. Maintaining the high level of revenue these tribal operations have had in the past might not be possible in the emerging environment. Nevertheless, gaming will likely continue as a very profitable enterprise. The market value of sovereignty that American Indians have is clear in a few examples—where it can be exploited for financial gain through comparative advantage, as in gaming enterprises, marijuana cultivation, and

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tourism—where these enterprises offer unique products. The first two of these, the ones with the largest monetary potential, will eventually face competition as laws change and non-Indians are able to compete. The advantage of sovereignty in this regard, then, is a short-run advantage. The non-market aspect where sovereignty has value is in the enhanced ability of sovereign societies to preserve and nurture their unique cultures. While it might be true that political sovereignty allows for these things, it is also true that alternate arrangements have been shown to be very effective in achieving similar results.5 If the economic advantages to political sovereignty are limited and temporary, and the cultural advantages to it can be satisfied with other arrangements, the value of continuing to have political sovereignty as a top priority goal comes into question. As a theoretical position, these alternatives can seem reasonable. Giving up political and legal ground, however, might be a one-way street and so giving up sovereignty is extremely risky. 1.2  Privatize and Eliminate Sovereignty Evidence has been presented in this book and elsewhere by many researchers that integration into the broader society of people in the United States has positive economic impacts on individuals. The elimination of a tribal entity, however, would have drastic negative consequences for its members and, I would argue, non-tribal members as well due to the loss of extant culture, the deterioration of the memory of the people in the minds of their descendants and in the minds of others, the loss of the language, the art, and the being of the people. Therefore, even if collective holdings are turned into private ones, the culture and traditional and sacred places of the people must somehow be maintained. Importantly, the elimination of political sovereignty and the privatization of land do not mean that the tribes themselves would be disbanded. The tribes would continue to exist in their current cultural forms. What would change is the legal title of land ownership and the bundle of rights any collective tribal entity possesses. The size and scope of incorporated political space would change for many tribes, and the government-to-government relationship between every tribe and the federal government would be severed. The most difficult issue to address in a private setting is the question of self-determination. The US government is so dedicated to the concept that the Bureau of Indian Affairs (BIA) has an office focusing only on issues relating to self-determination, the Division of Self-Determination

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Services—it is one of the five divisions of the Office of Indian Services. The mission of the division is6: To promote and advocate maximum Indian participation in the programs and services conducted by the Federal Government for Indians; and to encourage and support the development of tribal capacity to better manage the opportunities and responsibilities of self-determination.

Public Law 93–638, the Indian Self-Determination and Education Assistance Act of 1975, as amended,7 intends to ensure that tribes can make decisions for themselves and thereby determine their own futures, as opposed to submitting to paternalist decisions made by the US government. Yet, what here are Native Americans determining, exactly? Decisions about their economic future? Cultural preservation? Land use? Yes, indeed, these and many others. The arguments recounted below suggest that self-­ determining decisions can be made without political sovereignty. There are ways besides the government-to-government relationship to ensure that the collective cultures of tribes and tribal entities will endure and, even more than that, sustain and prosper. Additionally, in some cases, the maintenance of political sovereignty, because it requires by definition that a distance exists between the political entity in question and all other political entities, actually makes tribes worse off in a number of ways while not advancing any of their primary goals in a superior fashion to alternate arrangements. There are many possible arrangements that would address these issues in different ways. Some of the ones that are most likely to be successful are discussed next. In each case, the assumption is that the political status of all groups has been extinguished but the cultural status of all groups has been maintained. After an initial discussion of privatizing land, the goal addressed in the following paragraphs is cultural preservation under the assumption that economic well-being is pursued along different avenues.  laskan Model (ANCSA) Applied to Landholding Tribes and to Trust A Land in Hawai‘i ANCSA transferred land and cash to Alaska Natives in settlement of all existing title claims. As an economic settlement, it has been very effective. Could it be applied to American Indians and Native Hawaiians? The answer in both cases is yes. Alaska Natives would not be affected by this

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policy as they are already covered by the original legislation. They would continue as they are now. In the case of Native Hawaiians, the most logical land transfer is the existing Hawaiian Home Land trust areas. Presently, they are being maintained through long-term leases, a policy that could continue if the land were transferred in fee simple title to a Hawaiian tribal entity, an organization that would need to be created for this purpose as Alaska Regional Corporations were created through ANCSA. Alternately, the organization could make somewhat different arrangements—whatever was in the best interest of its constituents, Native Hawaiians. If the 200,000 acres of Hawaiian Home Lands is not enough land and if no other land selections are available, a cash settlement could be proffered, as was done in ANCSA for that very reason. The cash would then be available for use in covering start-up costs of the new corporation. This alternative should be compared to the other possibilities of converting Hawaiian Home Lands to sovereign political space or doing nothing at all and maintaining the status quo. For American Indians, the existing reservation land would be converted into fee simple private land that was owned by the existing tribal government (transformed into a private entity) or a new organization for this purpose. The lessons of the General Allotment Act (GAA) are well learned and so the fragmentation of land would not be allowed to occur. No sovereign political space would exist any longer. In places where reservations have been catastrophically fragmented by the GAA, the splintering would now have less impact—only the historic loss of the land itself would be at issue, not political jurisdiction. It is important to emphasize that this newly private land would not be held by individuals but rather it would be held collectively by a tribal entity, thereby keeping it intact. Restriction on the sale of the land would be in place as it is from ANCSA (as amended). A negotiated cash settlement would also be put in place, as appropriate. Special conditions and rights were conveyed to Alaska Regional Corporations through ANCSA and so special conditions could likewise be implemented here, such as variances to allow gaming to continue where it exists for a specified length of time into the future. Apart from whatever variances are allowed, the newly private land would be under the relevant state jurisdiction. Actual towns on reservations would be incorporated as villages are in Alaska or simply as other towns are in the United States. The ANCSA model for land settlement omits explicit policies to address cultural issues, but cultural preservation must be maintained. Therefore,

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additional policies are required. The next three sections address aspects of cultural maintenance and traditional land use guarantees that are not necessarily guaranteed by an ANCSA-style land agreement.  ustralian Model for Land Use and Maintenance of Traditional A Activities and Sacred Places When the British first arrived in Australia, they declared the land terra nullius, which, in the legal sense, means uninhabited land. Although aboriginal people were all around, since they did not exist legally, the land was available for the taking by settlers. A long history of displacement and land right denial ensued. As laws eventually were passed, beginning with the Aboriginal Land Rights Act (1976) in the Northern Territory, land claims by people who inhabited Australia before the British arrived were allowed, based upon traditional occupancy. The second key piece of legislation relating to land rights for indigenous people was the Native Title Act (1993). A High Court decision determined that Australia was not terra nullius, but rather it recognized that sovereign rights (or native title) of the indigenous people existed. This decision allowed for the continued traditional uses of lands and waters (fishing, hunting, ceremonial observances, and other activities). It also allowed for the coexistence of indigenous and non-indigenous interests in lands, such as pastoral leases coexisting with native title (provided traditional land uses are not extinguished). The Act also determined that compensation should be provided where native title rights have been diminished. While ownership of the land, as such, was not transferred, land use rights were dramatically enhanced. Many controversies sprung up regarding land and land use, primarily based upon commercial use of the land (largely by white people) versus traditional (and non-commercial) use of the land by aboriginal people.8 The details are beyond the scope of this book, but they do in many ways mirror similar issues in the United States. One way that land rights have been addressed in Australia that is different from other colonial places is the establishment of Indigenous Protected Areas (IPA). These areas were created as part of the National Reserve System, which is like the National Park System in the United States. The Indigenous Protected Areas program, developed in 1997 after two years of consultation with traditional owners and Indigenous organisations, supports Indigenous Australians to voluntarily dedicate and manage their land for conservation. Although primarily a land based program, a number

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of coastal Indigenous communities already manage sea country and have aspirations to include it as part of their Indigenous Protected Area future.9

According to the Australian Department of Environment and Energy, Indigenous Protected Areas deliver cost-effective environmental, cultural, social, health and wellbeing and economic benefits to Indigenous communities. As well as protecting biodiversity and cultural heritage into the future, Indigenous Protected Areas provide employment, education and training opportunities for Indigenous people in remote areas. There are currently over 70 dedicated Indigenous Protected Areas across 65 million hectares accounting for more than 40% of the National Reserve System’s total area.10

In an IPA arrangement, indigenous people continue their traditional use of the land but also maintain it for the broader purpose of a national parklike preserve. In exchange, IPAs receive money from the government to cover the costs of land management. In this way the national government (and the general population) receives the benefit of a preserved area and aboriginal people inhabit and use the land in traditional ways, all the while protecting it from over-use and destructive commercial exploitation. Could this work in the United States? As part of a land settlement where political sovereignty was extinguished, and IPA-like arrangement would be a way for federal money to flow into to land preservation by and for Natives as part of the National Park budget. There are many places that are particularly suitable to an IPA. One obvious example is on the Navajo Reservation where Navajo Tribal Parks already exist. While this model does not address all issues related to land, certainly, it does offer a solution to some of them. The most important aspect of an IPA is that indigenous people are in charge of the land, they oversee it as stewards and can thereby ensure its proper management and preservation.  benaki Model (Alternative to Australian): Privatized A Trust Management11 The Western Abenaki people lived in the area that is now Vermont and New Hampshire at first contact with European colonizers. The first permanent European settlement in the area was built at Fort Dummer by Massachusetts Bay colonists in 1724.12 Europeans did not enter Vermont in large numbers until a decade before US independence, and most of those who did migrate were from Massachusetts. By the time of European settlement in Vermont, the Abenaki had already been significantly

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influenced by the economics and politics in the region through trade and conflict. The largest single factor that pushed Abenaki peoples out of Vermont was repeated violent encounters with other tribes, the French, and, finally, the British in the War of Conquest that ended in the early 1760s.13 Natives in Vermont were systematically pushed out of their land like their fellow indigenous peoples had been in southern New England decades before as white settlers fanned out. Land settlements were in question as early as 1789 when some Abenakis unsuccessfully attempted to recover land they used to inhabit prior to the arrival of Europeans. As time passed, the Abenaki people who remained near ancestral places assimilated into the European culture that surrounded them, as a survival strategy.14 This strategy ultimately proved to be their undoing as a politically sovereign group. In later court proceedings, the main reasons given for the denial of federal recognition of Abenaki people in Vermont were the assimilation into the US society outside of tribal separatism and the “weight of history,” meaning that they had not maintained a separate existence for so long that they had given up any sovereign right to it contemporaneously.15 This outcome highlights the peril many tribes faced throughout time. When faced with literal extinction, people do what they must to survive because they are forced to—they literally have no choice. In some cases, integration was the only way to avoid starvation. Even though it was the expansion of white civilization that forced this action upon the Abenaki, their only means of survival was held against them by white people when later the tribes tried to reestablish their ethnic identity in US society. While the “weight of history” argument has been criticized by some legal scholars, it remains a citable precedent.16 The ultimate result is that there are no federally recognized Abenaki people or lands in Vermont now. One group, the Nulhegan Band of the Coosuk Abenaki Nation, has received Vermont state recognition, but no land has been officially returned or set aside for any Abenaki group.17 Without federal acknowledgment, the Nulhegan Band had little chance of receiving land in a legal land claim action. Therefore, the tribe partnered with the non-profit land conservation organization the Vermont Land Trust and the Sierra Club to raise money and buy private land in ancestral areas of Vermont. In 2012, the groups were able to purchase a parcel of forestland in Orleans County in the northern part of the state. Title to this land is privately held by Abenaki Helping Abenaki, Inc., a non-profit organization. In addition, the Vermont Land Trust holds a conservation easement on the forestland in perpetuity to ensure it is not

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developed for other purposes. This privately held land represents the first tribal communal land held by Abenakis in 200 years. The tribe intends to use the land for small-scale traditional agriculture in existing clearings, for hunting opportunities, for firewood harvesting, and for other nondestructive activities.18 The arrangement the Western Abenaki tribe was able to execute carries no political authority or sovereign implications. What it does do is address the primary goal of reestablishing an ancestral space that will help preserve the tribe’s cultural identity and it represents an innovative approach to what appeared to be a hopeless situation. The strategy of the private purchase of land by an unrecognized American Indian organization and the granting of a conservation easement to a land trust is a creative attempt to address land rights issues. Many land trusts exist throughout the United States, but they generally do not specifically attempt to set aside land for native peoples. If the Nulhegan Band initiative proves successful, it will serve as a productive template for other peoples throughout the United States who find themselves in similar circumstances. This model can be broadened in principle to apply to federally recognized tribes if political sovereignty were extinguished. In such a case, external non-profit organizations are not necessary—the tribes themselves could establish them. In many ways, this kind of arrangement is not unlike the long-term leasing of Hawaiian Home Lands, except without the residential focus. The Western Abenaki people embraced this method because no other was available to them, given their lack of federal acknowledgment. This might therefore seem like an act of desperation, especially for tribes that have been federally recognized. Private land ownership and thoughtful land management do not in-and-of-themselves carry negative connotations. The Nulhegan Band’s success, while operating on a small scale, demonstrates that private ownership of land can be used to achieve goals currently pursued by tribes with collective land ownership.  rademark Model (Hawaiian) for Cultural Exports T Discussed in a previous chapter, Native Hawaiians have turned to trademark law as a way to protect their art and cultural iconography. While this approach does involve some expense and legal filings, it is an effective protection against unauthorized duplication of unique products. The strategy is primarily designed to create a monopoly for a described item thereby increasing its economic (market) value. Trademarking an item also has the effect of preserving it.

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The primary form of intellectual property protection available to US citizens resides in copyright and trademark law. The creator of a unique item of artistic or intellectual property can register the item and have a legal right as an individual (or legal entity) to the exclusive use of the item and forms of its expression—an artistic image on a basket, for example. Specifically, for trademarks19: A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller’s products and distinguish them from the products of another (15 U.S.C. §1127). For example, the trademark “Nike,” along with the Nike “swoosh,” identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g. Reebok or Adidas). Similarly, the trademark “Coca-Cola” distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g., Pepsi). When such marks are used to identify services (e.g. “Jiffy Lube”) rather than products, they are called service marks, although they are generally treated just the same as trademarks.

For copyright20:



(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Copyright and trademark create a comparative advantage. These protections already exist and are therefore available to be employed. In addition,

7 CONCLUSION 

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preserving existing laws (such as the Indian Arts and Crafts Act) that protect exclusive creation rights for traditional Native American items in general do not conflict with an environment where federal acknowledge tribes exist but have no political sovereignty. The removal of sovereignty only dissolves the government-to-government relationship between the tribal entity and the federal government, not the existence, history, and culture of the tribe itself.

2   No Single Answer The degree of sovereignty and the land arrangements currently are different for different indigenous peoples in the United States, a situation that can be explained by the historical evolution of legal relationships and settlements through time, but it cannot be morally defended. Why should indigenous people in Alaska be treated differently than indigenous people in Hawai‘i or indigenous people in the contiguous forty eight states? A consolidation of political status and an assessment of the outcomes of individuals is the best way to ensure well-being for all people. One possible solution is to apply the best aspects of all three general arrangements to all indigenous people. That is, grant political status to Native Hawaiian groups and convey sovereign land to Native Hawaiians and Alaska Natives. In this case, all land controlled by tribes anywhere in the United States would be Indian Country. This would even the political ground for indigenous peoples, but it would leave a large number of other issues unresolved. The amount and quality of land would still be different, one tribe to the next, for example, and there would still be unrecognized tribes who continue to have no political status. And besides, the chances of this happening are remote. The established line of legal precedent since ANCSA has been to limit the political rights of tribal entities, not enhance them. In an ideal world, each tribe would make its own decisions independent of the constraints of any external political environment. That, however, is not the world we all live in. As such, it is unrealistic to imagine a unique political arrangement between the US government and all individual tribes. In places where this approach has been tried, such as Canada, the number of groups involved is quite small and there are still guiding principles that must be followed that apply to all the individual arrangements.21 Self-determination that grows from the partial political sovereignty that some indigenous people in the United States experience has therefore

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been homogenized through policy and law and, as has been discussed throughout this writing, has been on a diminishing trajectory since colonial times. I earnestly hope that I find no one to dispute the idea that Native people themselves should be the ones to decide their futures. The choice set available to them, however, is limited by outsiders and external forces; therefore it is not at all certain that indigenous peoples in the United States will in fact be allowed to choose what they actually want.

Notes 1. Discussed in Chap. 3. 2. Discussed in Chap. 6. 3. There is a substantially large group of Native Hawaiians that wants complete political separation rather than tribal recognition, an outcome that is unrealistic. 4. Hixson et al. (2012). 5. The culture of Native Hawaiians is an obvious example discussed in this book. 6. US Bureau of Indian Affairs (2016). 7. 25 USC §450, et seq.; 88 Stat. 2203. 8. Salmon and Edwards (2016) and Australian Government (2016). 9. Australian Government (2012). 10. Australian Government (2017). 11. The section is taken/adapted from Edwards (2015). 12. Calloway (1990), pp. 119–120. 13. Haviland and Power (1994), pp. 205–242. 14. Ibid., pp. 244–246. 15. Wiseman (2001), p. 179. 16. Calloway (1990), p. 250. 17. Vermont Statutes and Codes (2014). 18. Vermont Land Trust (2012). 19. Berkman Klein Center (2016). 20. US Copyright Office (2017). 21. Government of Canada (2015).

Bibliography Australian Government. 2012. Respecting Culture and Country: Indigenous Protected Areas in Australia: The First 15 Years. Commonwealth of Australia publication.

7 CONCLUSION 

149

———. 2016. Aboriginal Customary Laws and Anglo-Australian Law After 1788. Australian Law Reform Commission Website. http://www.alrc.gov.au/publications/4.%20Aboriginal%20Customar y%20Laws%20and%20AngloAustralian%20Law%20After%201788/australian-law-applied. Accessed 17 Nov 2016. ———. 2017. Department of Environment and Energy Website. https://www. environment.gov.au/land/indigenous-protected-areas. Accessed 17 Jan 2017. Berkman Klein Center. 2016. Berkman Online Lecture and Discussion (BOLD) Series Website. https://cyber.harvard.edu/metaschool/fisher/domain/ tm.htm. Accessed 17 Nov 2016. Calloway, Colin G. 1990. The Western Abenakis of Vermont, 1600–1800. Norman: University of Oklahoma Press. Edwards, Wayne. 2015. “Divergent Economic Outcomes of Land Rights Claims of Indigenous Peoples in the United States,” Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, edited by Mark D. White (Palgrave Macmillan, 2015), pp. 161–181. Government of Canada. 2015. Fact Sheet: Aboriginal Self-Government. http:// www.aadnc-aandc.gc.ca/eng/1100100016293/1100100016294. Accessed 17 Jan 2017. Haviland, William A., and Marjory W.  Power. 1994. The Original Vermonters. Hanover: University Press of New England. Hixson, Lindsay, Bradford B. Hepler, and Myoung Ouk Kim. 2012. The Native Hawaiian and Other Pacific Islander Population: 2010. 2010 Census Briefs. http://www.census.gov/prod/cen2010/briefs/c2010br-12.pdf. Accessed 29 Oct 2016. Salmon, Jan, and Wayne Edwards. 2016. Land Rights and Their Influence on Settlement Patterns. In Settlements at the Edge, ed. Andrew Taylor et  al., 207–219. Cheltenham: Edward Elgar. US Bureau of Indian Affairs. 2016. Homepage of the Office of Indian Services, Mission Statement. https://www.indianaffairs.gov/WhoWeAre/BIA/OIS/ Self-Determination/index.htm. Accessed 22 Nov 2016. US Copyright Office. 2017. Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92. https://www.copyright.gov/title17/92chap1.html. Accessed 18 Jan 2017. Vermont Land Trust. 2012. Nulhegan Abenaki Attain First Tribal Forestland in More Than 200 Years. Press Release. 18 Dec 2012. Vermont Statutes and Codes. 2014. Recognition of Abenaki People. Downloaded July 14, 2014 from http://statutes.laws.com/vermont/title-01/ chapter-23/853 Wiseman, Frederick Matthew. 2001. In The Voice of the Dawn: An Auto History of the Abenaki Nation, ed. University Press of New England. Hanover.

Afterword: New Threats for Indigenous People in the United States

Nothing is permanent. This is a comforting thought if you are trying to make a change for the better, but a discouraging one when viewed from the perspective of hard-won accomplishments. Laws and regulations in the United States change all the time, both through a sort of natural evolution of society and social norms and through a more deterministic political cycle. The polarization of the two-party system has, if anything, increased in the recent decades and become more malignant and pernicious. The most recent federal administration, the Trump Administration, has made changes that have been particularly onerous to indigenous people in the United States. Mainly, the Trump administration is walking back previous progress of indigenous peoples. Four examples of changes, or attempts at changes, to existing policies and statutes are the removal of the Medicaid work requirement exemption of the tribal members, the reduction of public lands such as Bears Ears National Monument, the constantly shifting federal enforcement priority related to marijuana cultivation and use, and the approval of the Keystone XL Pipeline Project. In addition, the Trump administration has created at least one significant new threat to indigenous peoples in the United States: expansion of the southern border wall between Mexico and the United States. The following sections briefly outline these recent issues.

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Border Walls One of the main promises Trump made during his 2016 presidential campaign was to build a wall along the southern border of the United States to reduce the flow of undocumented people across the political boundary. While little new wall had actually been constructed by beginning of 2020, some renovation of existing barriers was underway and more is promised.1 One tribe that is particularly affected by the new border crossing policies of the Trump Administration and by the proposed border wall is the Tohono O’odham who have a reservation in southern Arizona along the border and ancestral lands that cross over into Mexico. During the Obama Administration, the Tohono O’odham agreed to a barrier designed to prevent vehicles from crossing the US-Mexico political border that runs through their reservation. It is not a wall, or even a fence in most places, and people do cross by walking. Tribal members are of course US citizens and can cross into Mexico and return. After September 11, 2001, crossings by non-tribal members through the Tohono O’odham Nation increased dramatically. President Obama tightened border security significantly during his administration and reduced the influx, but it is still high. Half of the migrant deaths in Arizona occur along the reservation’s boundary.2 The tribe itself has limited resources to address illegal border crossings and therefore the number of federal border agents on the reservation has increased. In the past, tribal members could walk freely across the border but, post-9/11, they are restricted to one access point on the reservation or they must cross at an official US port of entry, the nearest one being hours away. If a physical wall is built as currently planned along the US border on Tohono O’odham land, it will cut across sacred places and ancestral burial sites, desecrating them.3 While there might be a legitimate security question about illegal border crossings here, the reservation is Indian Country, land of the Tohono O’odham Nation. Building a wall or changing federal actions would therefore require the participation and agreement of the tribe. There have been nation-to-nation negotiations between the US government and the tribe, but the issue of the border wall is unresolved, with the tribe resisting it. Ultimately, while federal authorities do not have a legal right to build a wall across the reservation, congress could pass legislation that would create such a legal right. There are a number of ways congress could do this, and as long as they pay “fair market value” to the tribe for the land, legal remedies are few and expensive. It is unlikely that

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the tribe would have the necessary resources to challenge any such legislation successfully. In the absence of congressional action, the Trump Administration might build the wall illegally and force the courts to attempt to stop its construction.

Keystone XL Pipeline Revived The Keystone XL Pipeline Project was controversial during the Obama administration because its planned route across Montana, South Dakota, and Nebraska put the Ogallala aquifer at risk and would potentially endanger the water supply to the reservation if there was a leak. President Obama halted the pipeline project temporarily. In 2017, President Trump issued an executive order to restart construction on the pipeline.4 The Keystone XL Pipeline is an example of the erosion of environmental safeguards during the Trump Administration, and also an example of its willingness to violate treaty obligations with tribes and indigenous people. Late in 2019, a significant pipeline did in fact leak in the area. There was a spill of approximately 338,000 gallons of oil in North Dakota, near the town of Edinburgh.5 Native American leaders were quick to condemn the leak and remind the public (and the government) that this event is exactly the type of incident that they have been warning about from the very beginning of the Keystone XL Project and the Dakota Access expansion.6 Putting the environment in danger puts Native people in danger. Allowing the restart of the Keystone XL Pipeline without sufficient consultation and agreement from tribal leaders violates the sovereignty of tribes and ignores the nation-to-nation relationship between tribal governments and the United States.

Bears Ears National Monument Reduced The Bears Ears National Monument was established in 2016 by President Obama. Situated in the southeastern part of Utah, the National Monument was approximately 1.3 million acres when it became protected public land. It is mostly undeveloped and includes many sacred sites, places of historic and cultural value, and natural resources. In December of 2017, President Trump issued an executive order to reduce Bears Ears by 85%.7 The Trump Administration argued that the original proclamation by President Obama misinterpreted the Antiquities Act, among others, and provided too much

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land to protect important sites. The new boundaries drawn by the Trump Administration encompass only approximately 200,000 acres.8 The executive action is the subject of continuing litigation attempting to reverse it that will likely last years. The shrinking of Bears Ears National Monument creates renewed jeopardy for sacred places and engenders uncertainty among Native Americans, and the public in general, about the future. While it can be observed that the redrawing of Bears Ears borders opens up the possibility of exploiting natural resources on these public lands, it is unclear whether the Trump Administration has an actual plan or agenda other than simply reversing actions taken by the Obama Administration. Whatever the motive, the effective outcome is negative for tribes and the general public.

Medicaid Work Requirements The Indian Health Care Improvement Act (IHCIA) was passed into law in 2010 as part of the Affordable Care Act. The original IHCIA was passed in 1976, and allowed, among other things, the Indian Health Service (IHS) to receive reimbursements through Medicare and Medicaid programs for services it provides to American Indians and Native Alaskans. This action in 2010 made the IHCIA permanent and not subject to congressional action for separate funding requirements. People who are eligible to receive services through the IHS must meet the requirements of that government agency, and are not necessarily subject to requirements of other funding programs like Medicare and Medicaid. The United States has trust and treaty obligations with Indian Nations to provide health services, and therefore requirements to receive services through the IHS are negotiated through nation-to-nation interactions.9 In 2017, the Trump Administration moved to reform Medicaid. Among the many changes it proposed was allowing states to decide whether to implement work requirements for recipients of Medicaid benefits as part of the philosophy of allowing states to have more flexibility in the use of federal dollars flowing through the program. The question arose immediately of whether people receiving health benefits through IHS would be exempt from work requirements. The position of the federal government was that a blanket exemption could not be issued on civil rights grounds—in other words, the US government was interpreting an exemption from Medicaid work requirements for American Indian and Alaska Native (AIAN) people as an illegal racial preference. It is not. Unlike other Medicaid recipients,

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AIAN people have a right to access healthcare through IHS. Mandatory work requirements are not consistent with the trust obligation that the United States has with AIAN groups and treaty agreements. It is not an issue of race at all. It is an issue of sovereignty.10 The removal of the work requirement waiver for Medicaid qualification for AIAN people will have devastating health consequences for the affected communities. It is a dilution of the government-to-government relationship between tribes and the US government, and another example of the negative consequences of Trump Administration policies.

Interstate Commerce Concerns and the Cannabis Industry Interstate commerce is a fundamental requirement for cannabis products (hemp, marijuana, Cannabidiol [CBD] oil, etc.) to have lasting potential as a revenue source for tribes because local demand in any particular place is limited. All growing businesses seek customers outside of the immediate facility operations in order to grow. The current US administration has contradicted itself on policies related to these products so often that production and market development are untenable for most Native groups. For example, in late 2019, during the signing ceremony for a funding bill that had protections for medical marijuana in it, Trump said, “Division B, section 531 of the Act provides that the Department of Justice may not use any funds made available under this Act to prevent implementation of medical marijuana laws by various States and territories.”11 He went on to say, “My Administration will treat this provision consistent with the President’s constitutional responsibility to faithfully execute the laws of the United States.”12 What does this second remark mean in the context of the first remark? Does it mean that since there are federal prohibitions against marijuana use that the US government might choose to violate this new law in favor of enforcing existing ones? Or perhaps it means the opposite. The lack of clarity is disturbing. If there is one thing that business owners, any business owners, do not like it is uncertainty. In the past, the Department of Justice has issued memos concerning enforcement priorities. As it relates to marijuana, these memos in recent years have typically expressed the Department’s position that enforcement of federal marijuana prohibitions over state laws allowing marijuana use were not a priority. That in itself is bad enough as it leaves the contradiction between

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federal and state law standing, and simply asserts a “blind eye” policy for the time being. The absence of consistent law combined with contradictory public statements about enforcement leave businesses and institutions both inside and outside of Indian Country wondering what will happen next. Economic development is challenging for every community. Development of business operations on reservations faces additional challenges and difficulties that operations outside of Indian Country do not. Introducing more uncertainty in an industry that has significant potential for development on reservations is counterproductive. The Trump Administration can be viewed as a low point in the nationto-nation relationship between tribes and the United States in the past fifty years. Recovery and even progress are possible after this sharp decline, although recovering from political set-backs of the magnitude described above is going to be a long process. Historically, progress in economic development and sovereign recognition has occurred over a much longer period of time than the rapid reductions and setbacks tribes have frequently experienced. The external forces operating on Native peoples in the United States are monumentally more powerful than the legal rights and resources tribes possess. Due to the continual colonial subjugation and the unbalanced power, tribes have no choice but to work diligently and constantly to preserve the gains they have made and to guard against further erosions. It is comforting to believe and tempting to presume that if the political pendulum swings in the opposite direction once Trump leaves office, the back sliding of these past few years will be quickly reversed, but there is no way to know that for certain. The sycophancy of Trump’s political party may work to continue his policies beyond his term in office. This phenomenon combined with the general impotence of the competing political party might result in little or no improvement over the current state. Indeed, the situation could easily worsen. The future can be positive for American Indians, Native Alaskans, and Native Hawaiians. All three groups and their constituent communities face challenges and opportunities. Government policy that is consistent and that assists and encourages political sovereignty and economic development will achieve the greatest positive outcomes at the smallest costs. January 2020

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Notes 1. There is an interactive map of the border wall at USAToday.com that shows the type of border barrier at every mile of the southern border, https://www.usatoday.com/border-wall/us-mexico-interactiveborder-map/ 2. Morales (2017). 3. Ibid. 4. Labott and Diamond (2017). 5. Schilling (2019). 6. Lakota People’s Law Project (2019). 7. US Government, Office of the President (2017). 8. Fox, et al. (2019). 9. Indian Health Service (2010). 10. Delrow (2018). 11. Angell (2019). 12. Ibid.

Appendix

Suggested Readings Law Related to Indigenous Peoples in the United States Austin, Raymond D. 2009. Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance. Minneapolis: University of Minnesota Press. Case, David S., and David A. Voluck. 2002. Alaska Natives and American Laws. 2nd ed. Fairbanks: University of Alaska Press. Getches, David H., Charles F.  Wilkinson, and Robert A.  Williams Jr. 2005. Cases and Materials on Federal Indian Law. 5th ed. St. Paul: Thomson West. MacKenzie, Melody Kapilialoha, Susan Serrano, and D. Kapua‘ala Sproat, eds. 2015. Native Hawaiian Law: A Treatise. Honolulu: Kamehameha Publishing. McMillen, Christian W. 2007. Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory. New Haven: Yale University Press. Pevar, Stephen L. 2004. The Rights of Indians and Tribes. 3rd ed. New York: New York University Press. Pommersheim, Frank. 2009. Broken Landscape: Indians, Indian Tribes, and the Constitution. Oxford: Oxford University Press. Shattuck, Petra T., and Jill Norgren. 1993. Partial Justice: Federal Indian Law in a Liberal Constitutional System. Providence: Berg.

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American Indians History and Experiences Greenwald, Emily. 2002. Reconfiguring the Reservation: The Nez Perces, Jicarilla Apaches, and the Dawes Act. Albuquerque: University of New Mexico Press. Harvard Project on American Indian Economic Development. 2008. The State of the Native Nations: Conditions Under U.  S. Policies of SelfDetermination. New York: Oxford University Press. Haviland, William A., and Marjory W.  Power. 1994. The Original Vermonters. Hanover: University Press of New England. Klopotek, Brian. 2011. Recognition Odysseys: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities. Durham: Duke University Press. Ostler, Jeffrey. 2010. The Lakotas and the Black Hills: The Struggle for Sacred Ground. New York: Penguin Books. Otis, D.S. 1973. The Dawes Act and the Allotment of Indian Lands. Norman: University of Oklahoma Press. Prucha, Francis Paul. 1984. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press. ———. 1994. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press. ———. 2000. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press. Shepherd, Jeffrey P. 2010. We Are an Indian Nation: A History of the Hualapai People. Tucson: University of Arizona Press. Tiller, Veronica E. Velarde. 2015. Tiller’s Guide to Indian Country. 3rd ed. Albuquerque: BowArrow Publishing. Wilkins, David E. 2013. Hollow Justice: A History of Indigenous Claims in the United States. New Haven: Yale University Press. Wilkinson, Charles F. 1987. American Indians, Time, and the Law New Haven: Yale University Press. Wilkinson, Charles F. 2005. Blood Struggle: The Rise of Modern Indian Nations. New York: W. W. Norton. Alaska Native and Native Hawaiian History and Experiences Coates, Peter A. 1993. The Trans-Alaska Pipeline Controversy: Technology, Conservation, and the Frontier. Anchorage: University of Alaska Press. Daws, Gavan. 1974. Shoal of Time: A History of the Hawaiian Islands. Honolulu: University of Hawaii Press.

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Dombrowski, Kirk. 2014. Culture Politics: The Story of Native Claims in Alaska. Lincoln: Syron Design Academic Publishing). Goodyear-Ka‘ōpua, Noelani, Ikaika Hussey, and Erin Kahunawaika‘ala. 2014. A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty. Durham: Duke University Press. Kauanui, J. Kēhaulani. 2008. Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity. Durham: Duke University Press. Osorio, Jonathan K. 2014. I Ulu Ka ‘Aina (Land). Honolulu: University of Hawai‘i Press.

Information on Federally Acknowledged Tribes There are many sources where a list like the one that follows can be found. The list here is included for convenience and has been compiled from several sources.1 The websites are current at the time of this writing. Tribes are sorted by state, therefore tribes that have land in more than one state are listed more than once (separately for each state).

Information on Alaska Native Corporations As with the tribes listed in Table A.1, there are many sources where a list like the one that follows can be found. This list is included here for convenience and has been compiled from several sources. The websites are current at the time of this writing (Tables A.2 and A.3).2

Information on Hawaiian Home Lands and Native Hawaiians There are no federally acknowledged Native Hawaiian organizations. Below is a list of a few websites relevant to land rights and cultural preservation in Hawai‘i. The descriptions below the website name and URL are taken directly from the websites themselves, unless otherwise noted. These are suggested places to start when looking for information. Links to many dozens of other sites can be found on these websites. 1. Department of Hawaiian Home Lands, http://dhhl.hawaii.gov/. Mission: To manage the Hawaiian Home Lands trust effectively and to develop and deliver lands to Native Hawaiians. We will partner with others towards developing self-sufficient and healthy communities.3

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Table A.1  Official Websites of American Indian Tribes Tribe Name

Tribal Land

Website

Porch Band of Creeks

Alabama

Ak Chin Indian Community of the Maricopa Indian Reservation Cocopah Tribe of Arizona Colorado River Indian Tribes of the Colorado River Indian Reservation Fort McDowell Yavapai Nation Fort Mojave Indian Tribe

Arizona

http://pci-nsn.gov/westminster/ index.html http://www.ak-chin.nsn.us/ about.html

Gila River Indian Community of the Gila River Indian Reservation Havasupai Tribe of the Havasupai Reservation Hopi Tribe of Arizona Hualapai Indian Tribe of the Hualapai Indian Reservation Kaibab Band of Paiute Indians of the Kaibab Indian Reservation Navajo Nation

Pascua Yaqui Tribe of Arizona Quechan Tribe of the Fort Yuma Indian Reservation Salt River Pima-Maricopa Indian Community of the Salt River Reservation San Carlos Apache Tribe of the San Carlos Reservation San Juan Southern Paiute Tribe of Arizona Tohono O’odham Nation of Arizona

Arizona Arizona (also California)

http://www.cocopah.com/ http://www.crit-nsn.gov/

Arizona

http://www.fmyn.org/

Arizona (also California and Nevada) Arizona

http://mojaveindiantribe.com/

Arizona

https://www.nps.gov/grca/ planyourvisit/havasupai.htm http://www.hopi-nsn.gov/ http://hualapai-nsn.gov/

Arizona Arizona

http://www.gilariver.org/

Arizona

http:// itcaonline.com/?page_id=1166

Arizona (also New Mexico and Utah) Arizona

http://www.navajo-nsn.gov/

Arizona (also California) Arizona

Arizona Arizona Arizona

http://www.pascuayaqui-nsn. gov/ http:// itcaonline.com/?page_id=1173 http://www.srpmic-nsn.gov/

http://www.sancarlosapache. com/home.htm https://www.sanjuanpaiute-nsn. gov/ http://www.tonation-nsn.gov/ (continued)

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Table A.1  (continued) Tribe Name

Tribal Land

Website

Tonto Apache Tribe of Arizona

Arizona

White Mountain Apache Tribe of the Fort Apache Reservation Yavapai-Apache Nation of the Camp Verde Indian Reservation Yavapai-Prescott Indian Tribe Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian Reservation Alturas Indian Rancheria Augustine Band of Cahuilla Indians Bear River Band of the Rohnerville Rancheria Berry Creek Rancheria of Maidu Indians of California Big Lagoon Rancheria Big Pine Band Paiute Tribe of the Owens Valley Big Sandy Rancheria of Western Mono Indians of California Big Valley Band of Pomo Indians of the Big Valley Rancheria Bishop Pauite Tribe

Arizona

https://itcaonline.com/ member-tribes/ tonto-apache-tribe/ http://whitemountainapache. org/

Blue Lake Rancheria

California

Bridgeport Indian Colony

California

Buena Vista Rancheria of Me-Wuk Indians of California Cabazon Band of Mission Indians Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria

California

Arizona

http://www.yavapai-apache.org/

Arizona California

http://www.ypit.com/ http://www.aguacaliente.org/

California California

None http://www.augustinetribe.org/

California

http://www.brb-nsn.gov/

California

None

California California

None http://www.bigpinepaiute.org/

California

http://www.bigsandyrancheria. com/

California

http://www.bvrancheria.com/

California

California

http://www.bishoppaiutetribe. com/ http://www.bluelakerancheriansn.gov/ http://www. bridgeportindiancolony.com/ http://bvrmewuk.wixsite.com/ me-wuk None

California

http://www.colusa-nsn.gov/

(continued)

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Table A.1  (continued) Tribe Name

Tribal Land

Website

Cahuilla Band of Mission Indians of the Cahuilla Reservation Cahto Indian Tribe of the Laytonville Rancheria California Valley Miwok Tribe

California

https://www.cahuilla.net/

California

http://www.cahto.org/

California

Campo Band of Diegueño Mission Indians of the Campo Indian Reservation Capitan Grande Band of Diegueño Mission Indians of California: Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation; Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation Cedarville Rancheria Chemehuevi Indian Tribe of the Chemehuevi Reservation Cher-Ae Heights Indian Community of the Trinidad Rancheria Chicken Ranch Rancheria of Me-Wuk Indians of California Cloverdale Rancheria of Pomo Indians of California Cold Springs Rancheria of Mono Indians of California Colorado River Indian Tribes of the Colorado River Indian Reservation Cortina Indian Rancheria of Wintun Indians of California Coyote Valley Band of Pomo Indians of California Death Valley Timbi-Sha Shoshone Tribe Dry Creek Rancheria of Pomo Indians

California

http://californiavalleymiwok. com/ http://www.campo-nsn.gov/

California

https://www.barona-nsn.gov/

California California

https://cedarvillerancheria.com/ http://www.chemehuevi.net/

California

http://www.trinidad-rancheria. org/

California

None

California California

http://www.cloverdalerancheria. com/ None

California (also Arizona)

http://www.crit-nsn.gov/crit_ contents/about/

California

None

California

http://coyotevalleytribe.org/

California

http://timbisha.com/

California

http://drycreekrancheria.com/ (continued)

 APPENDIX 

165

Table A.1  (continued) Tribe Name

Tribal Land

Elem Indian Colony of Pomo California Indians of the Sulphur Bank Rancheria Elk Valley Rancheria California Enterprise Rancheria of Maidu California Indians of California

Ewiiaapaayp Band of Kumeyaay Indians Federated Indians of Graton Rancheria Fort Bidwell Indian Community of the Fort Bidwell Reservation of California Fort Independence Indian Community of Paiute Indians of the Fort Independence Reservation Fort Mojave Indian Tribe

Greenville Rancheria Grindstone Indian Rancheria of Wintun-Wailaki Indians of California Guidiville Rancheria of California Habematolel Pomo of Upper Lake Hoopa Valley Tribe Hopland Band of Pomo Indians Inaja Band of Diegueño Mission Indians of the Inaja and Cosmit Reservation Ione Band of Miwok Indians of California Jackson Band of Miwuk Indians

California California California

Website http://www.elemindiancolony. org/ http://elk-valley.com/ http://www.enterpriserancheria. org/index. cfm?fuseaction=menu&menu_ id=2 None http://www.gratonrancheria. com/ None

California

https://www.fortindependence. com/

California (also Arizona and Nevada) California

http://mojaveindiantribe.com/

California

http://www.greenvillerancheria. com/ None

California

None

California California California

http://www.upperlakepomo. com/ https://www.hoopa-nsn.gov/ http://hoplandtribe.com/

California

None

California

http://www.ionemiwok.org/

California

http://www.jacksoncasino.com/ tribal (continued)

166 

APPENDIX

Table A.1  (continued) Tribe Name

Tribal Land

Website

Jamul Indian Village of California Karuk Tribe Kashia Band of Pomo Indians of the Stewart’s Point Rancheria Koi Nation of Northern California La Jolla Band of Luiseño Indians La Posta Band of Diegueño Mission Indians of the La Posta Indian Reservation Lone Pine Paiute-Shoshone Tribe Los Coyotes Band of Cahuilla and Cupeno Indians Lytton Rancheria of California

California California California

http://www.jamulindianvillage. com/ http://karuk.us/ http://stewartspoint.org/wp/

California

http://www.koination.com/

California

http://lajollaindians.com/

California

https://www.lptribe.net/

California

http://lppsr.org/

California

Manchester Band of Pomo Indians of the Manchester Rancheria Manzanita Band of Diegueño Mission Indians of the Manzanita Reservation Mechoopda Indian Tribe of Chico Rancheria Mesa Grande Band of Diegueño Mission Indians of the Mesa Grande Reservation Middletown Rancheria of Pomo Indians of California Mooretown Rancheria of Maidu Indians of California Morongo Band of Cahuilla Mission Indians Northfork Rancheria of Mono Indians of California Pala Band of Luiseño Mission Indians of the Pala Reservation Paskenta Band of Nomlaki Indians of California

California

http://www.kumeyaay.info/los_ coyotes.html https://www.homelandforlytton. com/ None

California

None

California

http://www.mechoopda-nsn. gov/ http://mesagrandeband-nsn. gov/

California

California

California California California

http://www. middletownrancheria-nsn.gov/ http://mooretownrancheria.org/

California

http://www.morongonation. org/ http://northforkrancheria-nsn. gov/ http://www.palatribe.com/

California

http://www.paskenta-nsn.gov/

California

(continued)

 APPENDIX 

167

Table A.1  (continued) Tribe Name

Tribal Land

Website

Pauma Band of Luiseño Mission Indians of the Pauma and Yuima Reservation Pechanga Band of Luiseño Mission Indians of the Pechanga Reservation Picayune Rancheria of Chukchansi Indians of California Pinoleville Pomo Nation Pit River Tribe (includes XL Ranch, Big Bend, Likely, Lookout, Montgomery Creek and Roaring Creek Rancherias) Potter Valley Tribe Quartz Valley Indian Community of the Quartz Valley Reservation of California Quechan Tribe of the Fort Yuma Indian Reservation Ramona Band of Cahuilla Redding Rancheria

California

http://www.paumatribe.com/

California

http://www.pechanga-nsn.gov/

California

https://chukchansitribe.net/

California California

https://pinoleville-nsn.gov/ http://pitrivertribe.org/

California California

http://pottervalleytribe.com/ http://www.qvir.com/

California (also Arizona) California California

Redwood Valley or Little River Band of Pomo Indians of the Redwood Valley Rancheria California Resighini Rancheria Rincon Band of Luiseño Mission Indians of the Rincon Reservation Robinson Rancheria Round Valley Indian Tribes, Round Valley Reservation San Manual Band of Serrano Mission Indians of the San Maual Reservation San Pasqual Band of Diegueño Mission Indians of California

California

https://www.quechantribe.com/ index.html http://ramona-nsn.gov/ http://www.redding-rancheria. com/ None

California California

http://resighinirancheria.com/ http://www.rincontribe.org/

California California

https://rrcbc-nsn.gov/ http://www.rvit.org/

California

https://www.sanmanuel-nsn. gov/

California

http://www. sanpasqualbandofmissionindians. org/ (continued)

168 

APPENDIX

Table A.1  (continued) Tribe Name

Tribal Land

Website

Santa Rosa Indian Community of the Santa Rosa Rancheria Santa Rosa Band of Cahuilla Indians Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation Lipay Nation of Santa Ysabel Scotts Valley Band of Pomo Indians of California Sheep Ranch Rancheria of Me-Wuk Indians Sherwood Valley Rancheria of Pomo Indians of California

California

None

California

http://www.santarosacahuillansn.gov/ http://www.santaynezchumash. org/

Shingle Springs Band of Miwok Indians, Shingle Springs Rancheria (Verona Tract) Smith River Rancheria Soboba Band of Luiseño Indians Susanville Indian Rancheria Sycuan Band of the Kumeyaay Nation Table Mountain Rancheria of California Tejon Indian Tribe

California

Torres-Martinez Desert Cahuilla Indians Tule River Indian Tribe of the Tule River Reservation Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California Twenty-Nine Palms Band of Mission Indians of California United Auburn Indian Community of the Auburn Rancheria of California Upper Lake Band of Pomo Indians

California

California California

None http://www.svtribaltanf.org/

California

http://californiavalleymiwok. com/ https://www. sherwoodvalleybandofpomo. com/ http://www. shinglespringsrancheria.com/

California

California California

None https://www.soboba-nsn.gov/

California California

http://www.sir-nsn.gov/ http://sycuantribe.com/

California

None

California California

https://www.tejonindiantribe. com/ http://www.torresmartinez.org/

California

http://tulerivertribe-nsn.gov/

California

https://mewuk.com/

California

http://29palmstribe.com/

California

http://www.auburnrancheria. com/

California

http://www.upperlakepomo. com/ (continued)

 APPENDIX 

169

Table A.1  (continued) Tribe Name

Tribal Land

Website

Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation Washoe Tribe (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community and Washoe Ranches) Wilton Rancheria Wiyot Tribe Yocha Dehe Wintun Nation Yurok Tribe of the Yurok Reservation Southern Ute Indian Tribe of the Southern Ute Reservation Ute Mountain Tribe of the Ute Mountain Reservation

California

http://www. bentonpaiutereservation.org/

California (also Nevada)

https://www.washoetribe.us/

California California California California

http://wiltonrancheria-nsn.gov/ http://www.wiyot.us/ http://www.yochadehe.org/ http://www.yuroktribe.org/

Colorado

https://www.southernute-nsn. gov/ http://www. utemountainutetribe.com/

Mashantucket Pequot Tribe

Colorado (also New Mexico and Utah) Connecticut

Mohegan Tribe of Indians of Connecticut Miccosukee Tribe of Indians of Florida Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood and Tampa Reservations) Coeur D’Alene Tribe Kootenai Tribe of Idaho Nez Perce Tribe Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho Pokagon Band of Potawatomi Indians Sac and Fox Tribe of the Mississippi in Iowa Iowa Tribe of Kansas and Nebraska

Connecticut

Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas

Kansas

Florida

https://www.mptn-nsn.gov/ default.aspx http://mohegan.nsn.us/

Florida

http://www.miccosukee.com/ tribe/ http://www.semtribe.com/

Idaho Idaho Idaho Idaho

http://www.cdatribe-nsn.gov/ http://kootenai.org/main.html http://www.nezperce.org/ http://www.sbtribes.com/

Indiana (also Michigan) Iowa

http://www.pokagon.com/

Kansas

http:// iowatribeofkansasandnebraska. com/ http://www.ktik-nsn.gov/

http://www.meskwaki.org/

(continued)

170 

APPENDIX

Table A.1  (continued) Tribe Name

Tribal Land

Website

Prairie Band Potawatomi Nation Sac and Fox Nation of Missouri Chitimacha Tribe of Louisiana Coushatta Tribe of Louisiana Jena Band of Choctaw Indians Tunica-Biloxi Indian Tribe of Louisiana Aroostook Band of Micmac Indians Houlton Band of Maliseet Indians Passamaquoddy Tribe

Kansas

http://www.pbpindiantribe. com/ http://www.sacandfoxks.com/

Penobscot Nation

Maine

Mashpee Wampanoag Tribe

Massachusetts

Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts Bay Mills Indian Community Grand Traverse Band of Ottawa and Chippewa Indians Hannahville Indian Community Nottawaseppi Huron Band of the Potawatomi Keweenaw Bay Indian Community Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan Little River Band of Ottawa Indians Little Traverse Bay Bands of Odawa Indians Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan

Massachusetts

Kansas (also Nebraska) Louisiana Louisiana Louisiana Louisiana

http://www.chitimacha.gov/ http://www.koasatiheritage.org/ http://www.jenachoctaw.org/ http://www.tunicabiloxi.org/

Maine

http://www.micmac-nsn.gov/

Maine

http://www.maliseets.com/ index.htm http://www.passamaquoddy. com/ https://www.penobscotnation. org/ http://mashpeewampanoagtribe. com/ https://wampanoagtribe-nsn. gov/

Maine

Michigan Michigan

http://www.baymills.org/ http://www.gtbindians.org/

Michigan

http://www.hannahville.net/

Michigan

http://nhbpi.com/

Michigan

http://www.kbic-nsn.gov/

Michigan

http://www.lvdtribal.com/

Michigan

https://lrboi-nsn.gov/

Michigan

http://www.ltbbodawa-nsn.gov/

Michigan

https://gunlaketribe-nsn.gov/

(continued)

 APPENDIX 

171

Table A.1  (continued) Tribe Name

Tribal Land

Website

Pokagon Band of Potawatomi Indians Saginaw Chippewa Indian Tribe of Michigan Sault Ste. Marie Tribe of Chippewa Indians of Michigan Lower Sioux Indian Community in the State of Minnesota Mdewakanton Sioux Indians Minnesota Chippewa Tribe (Six reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Grand Portage Band; Leech Lake Band; Mille Lacs Ban; White Earth Band Prairie Island Indian Community in the State of Minnesota Red Lake Band of Chippewa Indians Shakopee Mdewakanton Sioux Community of Minnesota Upper Sioux Community

Michigan (also Indiana) Michigan

http://www.pokagon.com/

Michigan

http://www.saulttribe.com/

Minnesota

http://lowersioux.com/

Minnesota Minnesota

https://shakopeedakota.org/ http://www.mnchippewatribe. org/

Minnesota

http://prairieisland.org/

Minnesota

http://www.redlakenation.org/

Minnesota

https://shakopeedakota.org/

Minnesota

Mississippi Band of Choctaw Indians Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation Blackfeet Tribe of the Blackfeet Indian Reservation of Montana Chippewa-Cree Indians of the Rocky Boy's Reservation Confederated Salish and Kootenai Tribes of the Flathead Reservation Crow Tribe of Montana Fort Belknap Indian Community of the Fort Belknap Reservation of Montana

Mississippi

http://www. uppersiouxcommunity-nsn.gov/ http://www.choctaw.org/

Montana

http://www.fortpecktribes.org/

Montana

http://blackfeetnation.com/

Montana Montana

http://www.chippewacree-nsn. gov/ http://www.csktribes.org/

Montana Montana

http://www.crow-nsn.gov/ http://www.ftbelknap.org/

http://www.sagchip.org/

(continued)

172 

APPENDIX

Table A.1  (continued) Tribe Name

Tribal Land

Website

Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation Iowa Tribe of Kansas and Nebraska

Montana

http://www.cheyennenation. com/

Nebraska

Omaha Tribe of Nebraska Ponca Tribe of Nebraska Sac and Fox Nation of Missouri Santee Sioux Nation

Nebraska Nebraska Nebraska (also Kansas) Nebraska

http:// iowatribeofkansasandnebraska. com/ http://omaha-nsn.gov/ http://www.poncatribe-ne.org/ http://www.sacandfoxks.com/

Winnebago Tribe of Nebraska

Nebraska

Confederated Tribes of the Nevada Goshute Reservation (Nevada and Utah) Duckwater Shoshone Tribe of Nevada the Duckwater Reservation Ely Shoshone Tribe of Nevada Nevada Fort McDermitt Paiute and Nevada Shoshone Tribes of the Fort (also Oregon) McDermitt Indian Reservation Fort Mojave Indian Tribe Nevada (also Arizona and California) Las Vegas Tribe of Paiute Nevada Indians of the Las Vegas Indian Colony Lovelock Paiute Tribe of the Nevada Lovelock Indian Colony Moapa Band of Paiute Indians Nevada of the Moapa River Indian Reservation Paiute-Shoshone Tribe of the Nevada Fallon Reservation and Colony Pyramid Lake Paiute Tribe of Nevada the Pyramid Lake Reservation Reno-Sparks Indian Colony Nevada Shoshone-Paiute Tribes of the Nevada Duck Valley Reservation

http://santeesiouxnation.net/ index.html http://www.winnebagotribe. com/ https://ctgr.us/home/

http://www.duckwatertribe.org/ https://www.elyshoshonetribe. com/ None

http://mojaveindiantribe.com/

https://www.lvpaiutetribe.com/

http://www.lovelockpaiutetribe. com/ http://www. moapabandofpaiutes.com/ http://www.fpst.org/ http://plpt.nsn.us/ http://www.rsic.org/ https://www.shopaitribes.org/ spt/ (continued)

 APPENDIX 

173

Table A.1  (continued) Tribe Name

Tribal Land

Website

Summit Lake Paiute Tribe of Nevada Te-Moak Tribe of Western Shoshone Indians of Nevada (Four bands: Battle Mountain Band; Elko Band; South Fork Band; Wells Band) Walker River Paiute Tribe of the Walker River Reservation Washoe Tribe (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community and Washoe Ranches) Winnemucca Indian Colony of Nevada Yerington Paiute Tribe of the Yerington Colony and Campbell Ranch Yomba Shoshone Tribe of the Yomba Reservation Jicarilla Apache Nation Mescalero Apache Tribe of the Mescalero Reservation Navajo Nation

Nevada Nevada

http://www.summitlaketribe. org/ http://www.temoaktribe.com/

Nevada

https://www.wrpt.org/

Nevada (also California)

https://www.washoetribe.us/

Nevada Nevada

http://winnemuccaindiancolony. weebly.com/ http://yeringtonpaiute.us/

Nevada

http://www.yombatribe.org/

New Mexico New Mexico

https://janofficial.com/ http://mescaleroapachetribe. com/ http://www.navajo-nsn.gov/

Ohkay Owingeh Pueblo of Acoma Pueblo of Cochiti Pueblo of Jemez Pueblo of Isleta

New Mexico (also Arizona and Utah) New Mexico New Mexico New Mexico New Mexico New Mexico

Pueblo of Laguna

New Mexico

Pueblo of Nambe Pueblo of Picuris Pueblo of Pojoaque Pueblo of San Felipe Pueblo of San Ildefonso Pueblo of Sandia

New Mexico New Mexico New Mexico New Mexico New Mexico New Mexico

http://ohkay.org/ http://www.puebloofacoma.org/ None http://www.jemezpueblo.org/ http://www.isletapueblo.com/ index.html http://www.lagunapueblo-nsn. gov/ http://nambepueblo.org/ http://www.picurispueblo.org/ http://pojoaque.org/ https://sfpueblo.com/ http://www.sanipueblo.org/ https://www.sandiapueblo.nsn. us/ (continued)

174 

APPENDIX

Table A.1  (continued) Tribe Name

Tribal Land

Website

Pueblo of Santa Ana Pueblo of Santa Clara Kewa Pueblo Pueblo of Taos Pueblo of Tesuque Pueblo of Zia

New Mexico New Mexico New Mexico New Mexico New Mexico New Mexico

Ute Mountain Tribe of the Ute Mountain Reservation

New Mexico (also Colorado and Utah) New Mexico

http://www.santaana-nsn.gov/ None http://santodomingotribe.org/ http://taospueblo.com/ None http://zia.com/home/zia_info. html http://www. utemountainutetribe.com/

Zuni Tribe of the Zuni Reservation Cayuga Nation

New York

Oneida Nation of New York

New York

Onondaga Nation

New York

Saint Regis Mohawk Tribe Seneca Nation of Indians Shinnecock Indian Nation Tonawanda Band of Seneca Tuscarora Nation of New York Eastern Band of Cherokee Indians Spirit Lake Tribe

New York New York New York New York New York North Carolina

Standing Rock Sioux Tribe

North Dakota (also South Dakota) North Dakota

Three Affiliated Tribes of the Fort Berthold Reservation Turtle Mountain Band of Chippewa Indians of North Dakota Absentee-Shawnee Tribe of Indians Alabama-Quassarte Tribal Town Apache Tribe of Oklahoma Caddo Nation of Oklahoma Cherokee Nation Cheyenne and Arapaho Tribes

North Dakota

http://www.ashiwi.org/ http://www.cayuganation-nsn. gov/ http://www.oneidaindiannation. com/ http://www.onondaganation. org/ http://www.srmt-nsn.gov/ https://sni.org/ None None http://www.tuscaroras.com/ http://ebci.com/ http://www.spiritlakenation. com/ http://standingrock.org/ http://www.mhanation.com/

North Dakota

https://tmchippewa.com/

Oklahoma

http://www.astribe.com/ astribe/?reload http://alabama-quassarte.org/

Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma

http://www.apachetribe.org/ https://mycaddonation.com/ http://www.cherokee.org/ https://cheyenneandarapahonsn.gov/ (continued)

 APPENDIX 

175

Table A.1  (continued) Tribe Name

Tribal Land

Website

Citizen Potawatomi Nation Comanche Nation

Oklahoma Oklahoma

Delaware Nation

Oklahoma

Delaware Tribe of Indians Eastern Shawnee Tribe of Oklahoma Fort Sill Apache Tribe of Oklahoma Iowa Tribe of Oklahoma Kaw Nation Kialegee Tribal Town

Oklahoma Oklahoma

https://www.potawatomi.org/ http://www.comanchenation. com/ https://www.delawarenation-nsn. gov/ http://delawaretribe.org/ https://www.estoo-nsn.gov/

Oklahoma

http://fortsillapache-nsn.gov/

Oklahoma Oklahoma Oklahoma

Kickapoo Tribe of Oklahoma

Oklahoma

Kiowa Indian Tribe of Oklahoma Miami Tribe of Oklahoma Modoc Tribe of Oklahoma Muscogee (Creek) Nation Ottawa Tribe of Oklahoma Otoe-Missouria Tribe of Indians Pawnee Nation of Oklahoma Peoria Tribe of Indians of Oklahoma Ponca Tribe of Indians of Oklahoma Quapaw Tribe of Indians Sac and Fox Nation Seminole Nation of Oklahoma Seneca-Cayuga Nation Shawnee Tribe The Chickasaw Nation The Choctaw Nation of Oklahoma The Osage Nation

Oklahoma

http://bahkhoje.com/ http://kawnation.com/ http://kialegeetribal.webstarts. com/ http://kickapootribeofoklahoma. com/ https://www.kiowatribe.org/

Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma

http://miamination.com/ http://www.modoctribe.com/ http://www.mcn-nsn.gov/ http://www.ottawatribe.org/ http://www.omtribe.org/

Oklahoma Oklahoma

http://www.pawneenation.org/ http://peoriatribe.com/

Oklahoma

Thlopthlocco Tribal Town Tonkawa Tribe of Indians of Oklahoma

Oklahoma Oklahoma

http://www.ponca.com/home. html http://www.quapawtribe.com/ http://sacandfoxnation-nsn.gov/ http://sno-nsn.gov/ http://sctribe.com/ http://www.shawnee-tribe.com/ https://www.chickasaw.net/ https://www.choctawnation. com/ https://www.osagenation-nsn. gov/ http://tttown.org/ http://www.tonkawatribe.com/

Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma

(continued)

176 

APPENDIX

Table A.1  (continued) Tribe Name

Tribal Land

Website

United Keetoowah Band of Cherokee Indians in Oklahoma Wichita and Affiliated Tribes (Wichita, Keechi, Waco and Tawakonie) Wyandotte Nation

Oklahoma

http://www.ukb-nsn.gov/

Oklahoma

http://www.wichitatribe.com/

Oklahoma

Burns Paiute Tribe

Oregon

Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon Confederated Tribes of the Grand Ronde Community of Oregon Confederated Tribes of the Siletz Reservation Confederated Tribes of the Umatilla Indian Reservation Confederated Tribes of the Warm Springs Reservation of Oregon Coquille Indian Tribe Cow Creek Band of Umpqua Tribe of Indians Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation Klamath Tribes Narragansett Indian Tribe

Oregon

http://www.wyandotte-nation. org/ http://www.burnspaiute-nsn. gov/ http://ctclusi.org/

Oregon

http://www.grandronde.org/

Oregon

http://ctsi.nsn.us/

Oregon

http://ctuir.org/

Oregon

https://warmsprings-nsn.gov/

Oregon Oregon

http://www.coquilletribe.org/ http://www.cowcreek.com/

Oregon (also Nevada)

None

Oregon Rhode Island

Catawba Indian Nation (Catawba Tribe of South Carolina) Cheyenne River Sioux Tribe of the Cheyenne River Reservation Flandreau Santee Sioux Tribe of South Dakota Lower Brule Sioux Tribe of the Lower Brule Reservation

South Carolina

http://klamathtribes.org/ http://www.narragansett-tribe. org/ http://catawbaindian.net/

South Dakota

http://www.crstgfp.com/

South Dakota

http://www.santeesioux.com/

South Dakota

https://www. lowerbrulesiouxtribe.com/ (continued)

 APPENDIX 

177

Table A.1  (continued) Tribe Name

Tribal Land

Website

Oglala Sioux Tribe Rosebud Sioux Tribe of the Rosebud Indian Reservation Sisseton-Wahpeton Oyate of the Lake Traverse Reservation Standing Rock Sioux Tribe

South Dakota South Dakota

http://oglalalakotanation.info/ http://www.rosebudsiouxtribensn.gov/ http://www.swo-nsn.gov/

Yankton Sioux Tribe of South Dakota Alabama-Coushatta Tribe of Texas Kickapoo Traditional Tribe of Texas Ysleta Del Sur Pueblo Confederated Tribes of the Goshute Reservation Navajo Nation

Northwestern Band of Shoshoni Nation Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes,Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) Skull Valley Band of Goshute Indians of Utah Ute Indian Tribe of the Uintah and Ouray Reservation Ute Mountain Ute Tribe

Pamunkey Indian Tribe Confederated Tribes of the Chehalis Reservation Confederated Tribes of the Colville Reservation

South Dakota South Dakota (also North Dakota) South Dakota Texas Texas Texas Utah (also Nevada) Utah (also Arizona and New Mexico) Utah

http://standingrock.org/ http://www.yanktonsiouxtribe. net/ http://www.alabama-coushatta. com/ https://kickapootexas.org/ http://www.ysletadelsurpueblo. org/ https://ctgr.us/home/ http://www.navajo-nsn.gov/

http://www.nwbshoshone.com/

Utah

http://www.utahpaiutes.org/

Utah

None

Utah

http://www.utetribe.com/

Utah (also Colorado and New Mexico) Virginia Washington

http://www. utemountainutetribe.com/

Washington

http://www.colvilletribes.com/

http://pamunkey.org/ http://www.chehalistribe.org/

(continued)

178 

APPENDIX

Table A.1  (continued) Tribe Name

Tribal Land

Website

Confederated Tribes and Bands of the Yakama Nation Cowlitz Indian Tribe Hoh Indian Tribe Jamestown S’Klallam Tribe Kalispel Indian Community of the Kalispel Reservation Lower Elwha Tribal Community Lummi Tribe of the Lummi Reservation Makah Indian Tribe of the Makah Indian Reservation Muckleshoot Indian Tribe

Washington Washington Washington Washington Washington

http://www.yakamanation-nsn. gov/ https://www.cowlitz.org/ http://hohtribe-nsn.org/ http://www.jamestowntribe.org/ http://www.kalispeltribe.com/

Washington

http://www.elwha.org/

Washington

http://www.lummi-nsn.org/

Washington

http://makah.com/

Washington

Nisqually Indian Tribe Nooksack Indian Tribe of Washington Port Gamble S'Klallam Tribe Puyallup Tribe of the Puyallup Reservation Quileute Tribe of the Quileute Reservation Quinault Indian Nation

Washington Washington

http://www.muckleshoot.nsn. us/ http://www.nisqually-nsn.gov/ http://nooksacktribe.org/

Washington Washington

https://www.pgst.nsn.us/ http://www.puyallup-tribe.com/

Washington

http://www.quileutenation.org/

Washington

Samish Indian Nation Sauk-Suiattle Indian Tribe of Washington Shoalwater Bay IndianTribe of the Shoalwater Bay Indian Reservation Skokomish Indian Tribe Snoqualmie Indian Tribe Spokane Tribe of the Spokane Reservation Squaxin Island Tribe of the Squaxin Island Reservation Stillaguamish Tribe of Indians of Washington Suquamish Indian Tribe of the Port Madison Reservation

Washington Washington

http://www. quinaultindiannation.com/ http://www.samishtribe.nsn.us/ http://www.sauk-suiattle.com/

Washington

http://www.shoalwaterbay-nsn. gov/

Washington Washington Washington

http://www.skokomish.org/ http://www.snoqualmietribe.us/ http://www.spokanetribe.com/

Washington

http://squaxinisland.org/

Washington

http://www.stillaguamish.com/

Washington

http://www.suquamish.nsn.us/ (continued)

 APPENDIX 

179

Table A.1  (continued) Tribe Name

Tribal Land

Website

Swinomish Indian Tribal Community Tulalip Tribes of Washington

Washington

http://www.swinomish.org/

Washington

Upper Skagit Indian Tribe of Washington Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation Forest County Potawatomi Community Ho-Chunk Nation of Wisconsin Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin Menominee Indian Tribe of Wisconsin Oneida Tribe of Indians of Wisconsin Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin St. Croix Chippewa Indians of Wisconsin Sokaogon Chippewa Community Stockbridge Munsee Community Arapaho Tribe of the Wind River Reservation Shoshone Tribe of the Wind River Reservation

Washington Wisconsin

https://www.tulaliptribes-nsn. gov/ https://upperskagit.nsopw.gov/ Home.aspx http://www.badriver-nsn.gov/

Wisconsin

https://www.fcpotawatomi.com/

Wisconsin Wisconsin

http://www.ho-chunknation. com/ http://www.lco-nsn.gov/

Wisconsin

https://www.ldftribe.com/

Wisconsin Wisconsin

http://www.menominee-nsn. gov/ https://oneida-nsn.gov/

Wisconsin

http://redcliff-nsn.gov/

Wisconsin

http://www.stcciw.com/

Wisconsin

http://sokaogonchippewa.com/

Wisconsin

http://www.mohican.com/

Wyoming

http://northernarapaho.com/ wp/ http://easternshoshone.org/

Wyoming

Source: Compiled by Wayne Edwards Note: Many tribes are listed on other sites, and many tribes have Facebook pages. The URLs listed in this table are for official sites only

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Table A.2  Alaska Regional Corporations Websites Name

Website

Atna, Incorporated Aleut Corporation Arctic Slope Regional Corporation Bering Straits Native Corporation Bristol Bay Native Corporation Calista Corporation Chugach Corporation Cook Inlet Incorporated Doyon Limited Koniag Incorporated Nana Regional Corporation Sealaska Corporation

https://www.ahtna.com/ http://www.aleutcorp.com/ https://www.asrc.com/ http://www.beringstraits.com/ http://www.bbnc.net/ http://www.calistacorp.com/ https://www.chugach.com/ http://www.ciri.com/ http://www.doyon.com/ http://www.koniag.com/ http://www.nana.com/ http://www.sealaska.com/

Source: Compiled by Wayne Edwards Note: Many tribes are listed on other sites, and many tribes have Facebook pages. The URLs listed in this table are for official sites only

Table A.3  Alaska Village Corporations Websites Regional Corporation

Village Community

Ahtna, Incorporated Native Village of Cantwell Cheesh-Na Tribe

Native Village of Chitina Native Village of Kluti Kaah (aka Copper Center) Native Village of Gakona Mentasta Traditional Council Native Village of Tazlina

Village Community Website

None http://cheeshna.com/ Cheeshna_Tribal_Council/ Home.html http://www.chitinanative. com/ http://www.klutikaah.com/ http://www.nvgakona.com/ None http://www.tazlina.org/

Aleut Corporation Native Village of Akutan Native Village of Belkofski Native Village of False Pass Agdaagux Tribe of King Cove

None None None http://www. kingcovecorporation.com/ (continued)

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181

Table A.3  (continued) Regional Corporation

Village Community

Village Community Website

Native Village of Nelson Lagoon Native Village of Nikolski Pauloff Harbor Village Qagan Tayagungin Tribe of Sand Point Village St. Paul Island Pribilof Islands Aleut Communities of St. Paul and St. George Islands St. George Island Qawalangin Tribe of Unalaska

None None None http://www.qttribe.org/

Native Village of Unga Arctic Slope Regional Corporation Village of Anaktuvuk Pass Atqasuk Village (Atkasook) Native Village of Barrow Inupiat Traditional Government Kaktovik Village (aka Barter Island) Native Village of Point Hope Village of Wainwright Inupiat Community of the Arctic Slope Bering Straits Native Corporation Native Village of Brevig Mission Native Village of Elim King Island Native Community Koyuk Native Village of Mary's Igloo Nome Eskimo Community Native Village of Shaktoolik Native Village of Shishmaref Village of Solomon Stebbins Native Village of Teller Native Village of Unalakleet Native Village of Wales Native Village of White Mountain Native Village of Council

None None None https://www. theqawalangintribe.com/ None None None http://www.nvbarrow.com/ None None http://www. villageofwainwright.org/ http://www.inupiatgov.com/

None None None None None http://www.necalaska.org/ None None https://www.villageofsolomon. org/ None None https://www. nativevillageofunalakleet.org/ None None None (continued)

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Table A.3  (continued) Regional Corporation

Village Community

Bristol Bay Native Corporation Native Village of Aleknagik

Chignik Bay Tribal Council Native Village of Chignik Lagoon Chignik Lake Village Egegik Village Native Village of Ekuk Ekwok Village Igiugig Village Village of Iliamna Ivanoff Bay Village Iqurmuit Traditional Council Kokhanok Village New Koliganek Village Council Levelock Village Manokotak Village South Naknek Village Newhalen Village New Stuyahok Village Nondalton Village Pedro Bay Village Native Village of Perryville Native Village of Pilot Point Native Village of Port Heiden Portage Creek Village (aka Ohgsenakale) South Naknek Village Traditional Village of Togiak Twin Hills Ugashik Village Village of Clarks Point Curyung Tribal Council

Village Community Website

http://www. aleknagiktraditionalcouncil. com/ None http://www.chigniklagoon. net/index.html None None https://nveyak.com/ None http://www.igiugig.com/ https://www.villageofiliamna. org/ http://ivanofbaytribe.org/ None https://www.kokhanok.com/ None None None http://www.southnaknek. info/ None None None http://www.pedrobaycorp. com/ None None http://www. nativevillageofportheiden.com/ None http://www.southnaknek. info/ None None http://www.ugashikvillage. com/ None http://www.curyungtribe. com/ (continued)

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183

Table A.3  (continued) Regional Corporation

Village Community

Calista Corporation Akiachak Native Community Akiak Native Community Village of Alakanuk Village of Aniak Village of Atmautluak Orutsararmuit Native Village (aka Bethel) Village of Bill Moore’s Slough Chevak Native Village Chuloonawick Native Village Village of Crooked Creek Native Village of Eek Emmonak Village

Village Community Website

None None None None None http://nativecouncil.org/

None None None None None https://emmonakcorporation. com/ Native Village of Georgetown http://www.georgetowntc. com/ Native Village of Goodnews Bay None Native Village of Hamilton None Native Village of Hooper Bay None Village of Lower Kalskag None Kasigluk Traditional Elders Council None Native Village of Kipnuk None Native Village of Kongiganak None Village of Kotlik None Organized Village of Kwethluk None Native Village of Kwigillingok http://kwigtribe.org/ Lime Village None Village of Lower Kalskag None Native Village of Marshall (aka None Fortuna Ledge) Native Village of Mekoryuk http://www.mekoryuktc.org/ about-us/ Native Village of Napaimute http://napaimute.org/ Native Village of Napakiak None Newtok Village None Native Village of Nightmute None Ohogamiut None Oscarville Traditional Village None Native Village of Paimiut None Pilot Station Traditional Village None (continued)

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Table A.3  (continued) Regional Corporation

Village Community

Native Village of Pitka’s Point Platinum Traditional Village Native Village of Kwinhagak (aka Quinhagak) Village of Red Devil Village of Stony River Native Village of Scammon Bay Native Village of Nunam Iqua Village of Sleetmute Algaaciq Native Village (St. Mary’s) Nunakauyarmiut Tribe Tuluksak Native Community Native Village of Tuntutuliak Native Village of Tununak Umkumiute Native Village Village of Chefornak Chugach Alaska Corporation Native Village of Chenega (aka Chanega) Native Village of Nanwalek (aka English Bay) Native Village of Eyak (Cordova) Gulkana Village Native Village of Port Graham Native Village of Tatitlek Cook Inlet Region, Incorporated Chickaloon Native Village Eklutna Native Village Kenaitze Indian Tribe Knik Tribe Ninilchik Village

Village Community Website None None http://kwinhagak.org/ None None None None None None None None None None None None http://www.chenega.com/ None http://nveyak.com/ None http://portgraham.net/ http://www.tazlina.org/

Village of Salamatoff Seldovia Village Tribe Native Village of Tyonek

http://www.chickaloon.org/ http://eklutna-nsn.gov/ https://www.kenaitze.org/ https://kniktribe.org/ http://www.ninilchiktribe-nsn. gov/ http://www.salamatof.com/ http://www.svt.org/ http://www.tyonek.com/

Alatna Village Allakaket Village Anvik Village Beaver Village Birch Creek Tribe

None None http://anviktribalcouncil.com/ None https://birchcreektribe.org/

Doyon, Limited

(continued)

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185

Table A.3  (continued) Regional Corporation

Village Community

Village Community Website

Chalkyitsik Village Circle Native Community Village of Dot Lake Native Village of Eagle Evansville Village (aka Bettles Field) Native Village of Fort Yukon Galena Village (aka Louden Village) Organized Village of Grayling (aka Holikachuk) Healy Lake Village Holy Cross Village Hughes Village Huslia Village Village of Kaltag Koyukuk Native Village Manley Hot Springs Village McGrath Native Village Native Village of Minto Nenana Native Association Nikolai Village Northway Village

None None None None None

Nulato Village Rampart Village Native Village of Ruby Shageluk Native Village Native Village of Stevens Takotna Village Native Village of Tanacross Native Village of Tanana Telida Village Native Village of Tetlin Village of Venetie Koniag, Incorporated Native Village of Afognak Native Village of Akhiok Native Village of Larsen Bay Kaguyak Village Native Village of Karluk Sun’aq Tribe of Kodiak

http://www.fortyukon.org/ None None None None None None None None None None None None None http://northwayvillagecouncil. org/ http://www.nulatotribe.net/ None None None None None None None None https://www.tetlincorp.com/ None http://www.afognak.org/ None None None None http://sunaq.org/ (continued)

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Table A.3  (continued) Regional Corporation

Village Community

Village Community Website

Native Village of Larsen Bay Village of Old Harbor

None https://www. oldharbornativecorp.com/ http://ouzinkie.org/ https://portlionstribe.net/ http://www.ugashikvillage. com/ None None

Native Village of Ouzinkie Native Village of Port Lions Ugashik Village Uganik Kaguyak Village NANA Regional Corporation Native Village of Ambler Native Village of Buckland Native Village of Deering Native Village of Kiana Native Village of Kivalina Native Village of Kobuk Native Village of Kotzebue Native Village of Noatak Noorvik Native Community Native Village of Selawik Native Village of Shungnak Sealaska Corporation Angoon Craig Tribal Association Hoonah Indian Association Hydaburg Cooperative Association Allakaket Village Organized Village of Kasaan Klawock Cooperative Association Chilkat Indian Village (Klukwan) Organized Village of Saxman Sitka Tribe of Alaska Yakutat Tlingit Tribe Organized Village of Kake

None None None None None None http://www.kotzebueira.org/ None None None None None http://www.craigtribe.org/ http://www.hiatribe.org/ https://hcatribe.org/ None http://www.kasaan.org/ http://www.klawocktribe.org/ http://chilkatindianvillage. org/ None http://www.sitkatribe.org/ https://yakutattlingittribe. org/ http://www.kakefirstnation. org/

Source: Compiled by Wayne Edwards Note: The URLs listed in this table are for official sites only. Many villages do not have their own websites. A good index of community information is The Alaska Department of Commerce, Community, and Economic Development (DCCED), https://dcra-cdo-dcced.opendata.arcgis.com/

 APPENDIX 

187

2. Office of Hawaiian Affairs, http://www.oha.org/. The Office of Hawaiian Affairs is a public agency with a high degree of autonomy. OHA is responsible for improving the well-being of Native Hawaiians. 3. Map of Trust Land, Hawaiian Islands Land Trust, http://www.hilt. org/protected-lands/. Non-political by design, Hawaiian Islands Land Trust is a non-profit organization committed to working with private landowners, community groups, community leaders and government partners to protect Hawai‘i’s precious lands. Using a variety of tools, we help landowners integrate conservation into their land use plans in perpetuity. This collaborative work today helps to avert inappropriate land use tomorrow—and the benefits of conservation are triumphs that resound for all generations to come. 4. Native Hawaiian Data Book, http://www.ohadatabook.com/. The Office of Hawaiian Affairs’ (OHA) Native Hawaiian Data Book is an effort initiated in 1994. The data book was produced as a response to OHA’s fiduciary obligation of compiling “basic demographic data on native Hawaiians and Hawaiians” and identify “the physical, sociological, psychological, and economic needs of native Hawaiians and Hawaiians” [Hawai‘i Revised Statute, Chapter 10, Section 10–6(1)]. Moreover, OHA’s Master Plan at the time called for OHA to “Collect, analyze, maintain, and provide extant and new data on Hawaiians so that in five years, OHA is recognized as a major repository for Hawaiian data. [Goal 4, Objective 4.2, Policy 4.2.c]. The objective of the data book, at the time, was to serve as a resource for information on the Native Hawaiian population to the Native Hawaiian community and general public. 5. Na‘i Aupuni, http://www.naiaupuni.org/. Na‘i Aupuni is an independent organization made up of a volunteer board of directors from the Hawaiian community. It exists solely to help establish a path for Hawaiian self-determination. It will do this through inclusion of as many Hawaiians as possible and in a transparent way. Na‘i Aupuni is separate and independent from OHA and the State of Hawai‘i. 6. Hawai‘inuiākea School of Hawaiian Knowledge, http://manoa.hawaii. edu/hshk/.

188 

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Hawai‘inuiākea School of Hawaiian Knowledge is the first new school or college established on the Mānoa campus since 1982, and it is the only college of indigenous knowledge in a Research I institution in the United States. Hawaiʻinuiākea is comprised of four centers including two academic units, one traditional cultural garden, and a student services unit.

Notes 1. For example, from the Federal Register, https://www.federalregister.gov/documents/2013/05/06/2013-10649/indian-entitiesrecognized-and-eligible-to-receive-services-from-the-united-statesbureau-of-indian. The Bureau of Indian Affairs is another source, www.bia.gov/cs/groups/xraca/documents/text/idc1-033010. pdf. Wikipedia has a good list as well, but it should always be verified because of the nature of the source, https://en.wikipedia.org/ wiki/List_of_federally_recognized_tribes. See also Tiller (2015) for a comprehensive list. 2. As in note 1, the Federal Register, https://www.federalregister. gov/documents/2013/05/06/2013-10649/indian-entities-recognized-and-eligible-to-receive-services-from-the-united-statesbureau-of-indian. The Bureau of Indian Affairs is another source, www.bia.gov/cs/groups/xraca/documents/text/idc1-033010. pdf. Wikipedia has a good list as well, but it should always be verified because of the nature of the source, https://en.wikipedia.org/ wiki/List_of_federally_recognized_tribes. See also Tiller (2015) for a comprehensive list. 3. Department of Hawaiian Home Lands Facebook page, accessed 1-18-2017, https://www.facebook.com/dhhl.hawaii.gov/about/

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Index1

A Aboriginal Land Rights Act, 142 Administrative recognition, 53, 54 Akaka Bill, 31, 137 Alaska National Interest Lands Conservation Act (ANILCA), 21, 24–26, 102 Alaska Native, v, 2, 11–13, 21, 22, 24, 25, 57, 74–76, 83, 85, 86, 92, 98, 99, 102, 106, 113, 127, 128, 133–137, 140, 147 Alaska Native Claims Settlement Act (ANCSA), 21–26, 57, 62, 98, 99, 102, 136, 137, 140–142, 147 Alaska Regional Corporation, 99, 100, 106, 141, 180–186 Alaska Statehood Act, 22 American Indian Religious Freedom Act, 44 American Indians, v, 2, 11–13, 15–22, 41, 42, 44, 51, 57, 72–74, 76, 83, 91, 92, 99, 100, 106, 113, 121, 124, 125, 127, 128, 133, 137, 138, 140, 141, 145, 156

Articles of Confederation, 1, 15 Assimilation, 17–18, 27–28, 49, 79, 144 Assimilation vs. separation, 106–107 B Blood quantum, 22, 50, 55–58, 97, 105 Bureau of Indian Affairs (BIA), 5, 12, 13, 18, 27, 53, 59, 83, 118, 121, 139 Bureau of Land Management, 120 Bureau of Reclamation, 19, 20 C Capability, 72 Casinos economies, 116–118 Census Bureau, v, 72, 73 Census data, 72 Collective land, 41, 44, 92, 94–96, 104, 145 Collective ownership, 2, 17, 18, 98

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 W. Edwards, Sovereignty and Land Rights of Indigenous Peoples in the United States, https://doi.org/10.1057/978-1-137-59400-6

201

202 

INDEX

Colonialism, 13–14, 50, 99 Cultural exports, 111–113, 118–120, 145–147 Cultural preservation, 8, 28–31, 64, 95, 96, 103, 107, 136, 138, 140, 141, 161 Cultural sovereignty, 63–66 Cultural tourism, 119 Cultural value, 9, 20, 41–42, 91, 153 Culture, 7, 8, 24, 29–31, 41, 42, 45, 46, 54, 61, 64, 65, 91, 95, 100, 103, 112, 118, 122, 124–125, 127, 136, 139, 140, 144, 147, 148n5 D Dawes Act, 17 Department of Hawaiian Home Lands (DHHL), 28, 29, 63, 102–105, 161 Department of the Interior (DOI), 12, 31, 43, 51, 102, 104, 117, 119 Descendancy, 48, 55, 56, 58 Diminishment, 63, 64, 136 Diminishment doctrine, 63 Disenrollment, 59–61, 96, 97, 118 Division of Self-Determination Services, 139–140 E Economic development, 6–8, 13, 18, 23, 26, 61, 86, 94–96, 99, 100, 111, 112, 118, 125, 127, 156 Executive recognition, 54 Extractable resources, 113, 120–121 F Federal recognition, 6, 28, 31, 42–55, 117, 137, 144 Five Civilized Tribes, 67n49

G General Allotment Act (GAA), 17–18, 22, 56, 63, 141 The Great Father, 11 H Hawaiian Native, v, vi, 2, 3, 9, 11–13, 26–32, 54, 56, 57, 63, 72, 82–85, 92, 102–107, 113, 120, 127, 128, 133, 134, 136–138, 140, 141, 145, 147, 148n3, 148n5, 156, 161–188 House Concurrent Resolution Number 108 (HCR 108), 18, 19, 59 I Indian, 2, 5, 7, 14–20, 26, 35, 40–56, 58, 59, 61–63, 65, 73, 78, 79, 86, 118, 119, 121, 123, 126, 138, 140 Indian Arts and Crafts Act, 113, 118, 119, 147 Indian Arts and Crafts Board (IACB), 119 Indian Citizenship Act of 1924, 27 Indian Civil Rights Act, 61 Indian Country, 6, 7, 12, 13, 19, 25, 32n2, 62–64, 74, 78, 79, 84, 86, 92–94, 97, 112–116, 147, 152, 156 Indian Gaming Regulatory Act (IGRA), 117, 118 Indian Health Service (IHS), 77, 154, 155 Indian Nations, 1, 2, 14, 15, 17, 57, 60, 61, 64, 95, 154 Indian Removal Act, 16 Indian Reorganization Act, 18, 41–42, 55, 59, 79

 INDEX 

Indian Self-Determination and Education Assistance Act of 1975, 140 Indian tribal governments, 5 Indigenous people, v, 1–6, 8, 11–32, 36, 38–41, 71, 72, 74, 82, 83, 85, 92, 102, 105, 107, 112, 113, 118, 123–125, 127, 128, 133–135, 138, 142–144, 147, 148, 151–188 Indigenous Protected Areas (IPA), 142, 143 Intercourse Law of 1796, 16 International Union for the Conservation of Nature (IUCN), 7 J Judicial recognition, 53 L Land, 2, 12, 36, 71, 91, 111, 133, 151 Land leases, 105 Land rights, 4, 11, 13, 21, 22, 25, 26, 94, 127, 135, 138, 142, 145, 161 Land use, 4, 19, 24–26, 29, 62–63, 92–94, 96, 102, 104, 105, 111, 124–125, 140, 142–143, 187 Legislative recognition, 53, 54 Line of Royal Proclamation, 15 M Marijuana cultivation, 6, 107n2, 111, 113–116, 138, 151 Market value, 3, 4, 6, 23, 35, 91, 138, 145 Meriam Report, 18, 59

203

N National Congress of American Indians (NCAI), 77, 80 National Indian Gaming Commission (NIGC), 116 Nation-to-nation relationship, 12, 14–16, 19, 31–32, 153, 156 Native Allotment Act of 1906, 21, 22 Native Americans, 1, 3, 8, 18, 40, 54, 91, 119, 121, 133, 134, 140, 147, 153, 154 Native Hawaiian Trust Fund (NHTF), 30 Native Title Act, 142 O Office of Federal Acknowledgement, 50 Office of Hawaiian Affairs (OHA), 28–30, 102, 103, 187 Opportunity cost, 6, 7 P Paternalism, 18, 50, 99 Persistent poverty, 72, 85–87, 138 Political sovereignty, 4, 5, 18, 19, 26–28, 35–37, 41, 54, 61, 63–65, 76, 85, 92, 106, 111, 113, 120, 127, 133, 134, 136, 137, 139, 140, 143, 145, 147, 156 Poverty, 4, 7, 19, 71, 72, 76–78, 81–83, 85, 96, 117 Private ownership, 3, 4, 25, 65, 92, 98, 111, 145 Privatized trust management, 143–145 Property rights, 3, 24, 26, 27, 65 Public Law 83-280 (PL 280), 18, 19

204 

INDEX

R Racial Integrity Act, 51 Remote place, 8, 78, 84, 102, 136, 138 Reservation, 2, 7, 12, 13, 16–19, 22, 25, 35, 39–42, 54, 58–60, 63, 66n7, 73–80, 85, 86, 92–98, 106, 107n2, 111, 112, 114–117, 120, 121, 123–125, 137, 138, 141, 152, 153, 156 Resource extraction, 2 Rural place, 24, 77–79, 85, 100, 105 Rural vs. urban priorities, 100–102 S Sacred lands, 7, 8, 42 Sacred places, 8, 87, 124, 139, 142–143, 152, 154 Sacred sites, 120, 124–125, 153 Seward’s purchase, 20–22 Sovereign land, 61–63, 71, 83, 102, 107, 112, 147 Sovereign rights, 13, 134, 135, 142, 144 Sovereignty, 2–6, 8, 11–13, 15, 17, 19, 23, 27, 35–66, 71, 72, 74, 81, 105, 106, 111–128, 133–135, 138–140, 147, 153, 155 State recognition, 28, 43, 49, 51–55, 144 Stewardship, 19–20, 30, 103, 124 T Termination, 18–19, 49–51, 59–61, 79 Termination policy, 18

Tribal, v, 5, 6, 12, 13, 17–19, 26, 40, 42, 43, 48–50, 52–55, 57–61, 63–65, 73–75, 78, 79, 81, 93, 95, 97, 102, 111, 112, 114, 116–118, 120–123, 125–127, 137–141, 144, 145, 147, 153 Tribal governments, 5, 12, 20, 22, 40, 43, 62–64, 95, 96, 116–118, 122, 125, 127, 138, 141, 153 Tribal group, 75 Tribal member, 6–9, 25, 43, 44, 54, 57, 58, 60, 75, 93, 95–97, 115, 117, 118, 122, 123, 125, 151, 152 Tribal membership, 50, 55–61, 97 Tribal recognition, 12, 42–55, 63, 97, 148n3 Tribe, 1, 12, 39, 75, 91, 112, 133, 152 U United Nations Declaration of the Rights of Indigenous Peoples, 38, 39, 134 V Value of sovereignty, 4–7, 35, 36, 63, 138 W Well-being, 7, 29, 71, 72, 76–82, 87, 95, 97–100, 103, 136, 137, 140, 187 World Conservation Congress, 7