Indigenous World 2020: United States of America

Written on 11 May 2020. Posted in United States

The number of Indigenous people in the United States of America is estimated at between 2.5 and 6 million,¹ of which around 20% live in American Indian areas or Alaska Native villages. Indigenous Peoples in the United States are more commonly referred to as Native groups. The state with the largest Native population is California; the place with the largest Native population is New York City. While socio-economic indicators vary widely across different regions, the poverty rate for those who identify as American Indian or Alaska Native is around 27%.

With some exceptions, official status of being American Indian or Alaska Native is conferred on members of federally recognised tribes. Five hundred and seventy-four Native American tribal entities were recognised as American Indian or Alaska Native tribes by the United States in December 2019, and most of these have recognised national homelands. Federally recognised Native nations are inherently sovereign nations but their sovereignty is legally curbed by being unilaterally defined as wards of the federal government. The federal government mandates tribal consultation for many issues but has plenary power over Indigenous nations. Many Native nations have specific treaty rights and the federal government has assumed responsibility for Native peoples through its guardianship, although those responsibilities are often underfunded.

There are also state-recognised and non-recognised American Indian tribes but these are not officially Native nations in the eyes of the federal government.

The United States announced in 2010 that it would support the UNDRIP as moral guidance after voting against it in 2007. The United States has not ratified ILO Convention No. 169. While American Indians in the United States are generally American citizens, they are also citizens of their own nations.

In December, the Little Shell Tribe of Chippewa Indians of Montana became the 574th federally recognised tribe so far. The tribe had been without recognition or a land base since 1892, when Chief Little Shell refused to sign the McCumber Agreement that took most of the Plains Ojibwe’s land in North Dakota and established the Turtle Mountain reservation. Because he refused to sign the agreement, the government no longer recognised his group. The Little Shell Tribe have fought for decades to be recognised; their recognition was finally passed as an amendment to the National Defense Authorization Act.

Climate change

All Native nations in the United States are affected by climate change, and the United States’ policies on climate change affect Indigenous Peoples around the world. In November, President Trump (R) officially notified the United Nations that the United States would withdraw from the Paris Climate Accord. If nothing changes, the withdrawal will take effect one day after the 2020 U.S. presidential elections. The Trump administration has a record of ignoring, restricting, contradicting or prohibiting scientific research into climate change.²

As an example of politics taking precedence over science, in June, a day after President Trump met with Alaska Governor Dunleavy (R), the Environmental Protection Agency (EPA) informed its staff that it would no longer oppose the Pebble Mine project (see The Indigenous World 2015 and 2018). Governor Dunleavy had been meeting with Pebble Limited Partnership officials and had received advice, ghost-written letters, and talking points from them to lobby the president.³

In October, the Alaska Federation of Natives (AFN) declared a climate emergency. Alaska Native villages have been particularly hard hit by the effects of climate change. Melting permafrost, a lack of sea-ice build-up along the coast, drought, wildfires and erosion have made some villages uninhabitable (see The Indigenous World 2016 and 2017). After decades of planning, the Yup’ik village of Newtok was finally able to begin its relocation to a new site, Mertarvik, 10 miles away.

In November, the U.S. Army Corps of Engineers and the University of Fairbanks released a new report on the threats to Native communities from erosion, flooding and permafrost melting. Five communities Shaktoolik, Shishmaref, Kivalina, Golovin and Napakiak ranked highest in all three categories but many more are at high risk.⁴

In December, the Arctic Slope Regional Corporation (ASRC), one of 13 Alaska Native Regional Corporations established in 1972 under the Alaska Native Claims Settlement Act, decided to leave the AFN. In the discussions over a climate emergency at the AFN annual convention in October, ASRC representatives had tried to introduce language supportive of oil extraction. ASRC is a major player in the Alaska oil industry and, since its inception, has paid out over US$915 million in dividends to its shareholders, currently some 11,000 mostly Inupiat Native people. In November, the Bureau of Land Management (BLM) released a draft new Integrated Activity Plan and Environmental Impact Statement for the National Petroleum Reserve area in Alaska, which neighbours the Alaska National Wildlife Refuge (ANWR).⁵ The ASRC has supported expanding oil activities in both areas, while other Alaska Native villages, especially the Gwich’in, have opposed this (see The Indigenous World 2018). In September, the BLM released the final Environmental Impact Statement for the coastal plains of ANWR,⁶ and the Trump administration announced that 1.6 million acres would be opened to drilling.

Severe spring weather brought record flooding to the Missouri River basin, which impacted several tribes. On the Pine Ridge reservation, around half of the 20,000 residents had their water delivery disrupted or had to evacuate during historic flooding in March. The Yankton Sioux Tribe saw inundation of housing areas from March until the end of the year. When the state of South Dakota raised a road to protect it from floodwaters, it inadvertently created a dam that has flooded a tribal housing development. In December, the Cheyenne River Sioux Reservation secured US$5 million of a needed US$120 million to fix the damage to its infrastructure caused by the floods.

Extraction

In August, the Navajo Transitional Energy Company (NTEC) bought three coal mines in Wyoming and  Montana  from  Cloud  Peak  Energy. The Navajo Nation, which owns NTEC, refused to provide financial backing to NTEC in November. This backing would have provided security for US$400 million in bonds that would guarantee the clean-up of the mines should they be closed. The states of Montana and Wyoming are also demanding that NTEC give up its sovereign immunity before signing off on new mining permits. As inherently sovereign nations, tribal governments are immune from civil suits and criminal prosecution unless they abrogate that right or Congress explicitly removes it. Since NTEC is wholly owned by the Navajo Nation, it also enjoys that immunity. This development underscored discussions about energy policies and economic development within Native nations, as some Navajo urged the nation’s government to oppose NTEC’s operation of coal mines. NTEC now also owns development rights over another of Cloud Peak’s potential mines, which would be built on coal rights held by the Crow Tribe of Montana (see The Indigenous World 2017). NTEC is now the third-largest coal producer in the United States.

In March, President Trump issued new permits for the Keystone XL pipeline that would bring oil from Canadian tar sands to U.S. refineries. The new permits were designed to circumvent a federal court decision that halted the pipeline in 2018 (see The Indigenous World 2019) and argued that the authority to permit the pipeline rests solely with the president. In December, a federal court in Montana refused to issue an injunction blocking preliminary work on the pipeline because that work was scheduled to begin only in 2020. However, the court decided that a case against the pipeline brought by the Indigenous Environmental Network and the North Coast Rivers Alliance could go forward.⁷ The court also ruled that the Rosebud Sioux Tribe in South Dakota and the Fort Belknap Indian Community in Montana could move forward with a separate lawsuit against the pipeline. Here, the court decided that both tribes “have alleged sufficiently that depredations will or have occurred already on their land if the 2019 Permit authorises the entire Keystone pipeline” and that the Rosebud Sioux Tribe “has alleged sufficiently that TC Energy is required to comply with tribal laws as it seeks to construct and operate Keystone”.⁸

In  October, the state of South Dakota settled lawsuits against laws it had passed in March that would have largely prevented protests against the pipeline. Since the protests against the Dakota Access Pipeline near Standing Rock Sioux Reservation in 2016, several states have passed such laws, creating stiff penalties for protesting against or near to energy infrastructure projects. The decision in October means that these laws will not be enforced in South Dakota. In May, the Oglala Sioux Tribe Council had voted to ban South Dakota Governor Kristi Noem from the Pine Ridge reservation over the laws the governor had pushed through the state legislature.

In September, a federal judge denied the Trump administration’s attempt to have a lawsuit dismissed that is challenging the 2017 decision to revoke the Bears Ears National Monument (see The Indigenous World 2018).⁹ That decision by President Trump, reversing the creation of the National Monument by President Obama, had lifted protection for archaeological sites and opened the area up to mining and gas and oil extraction. The Hopi Tribe, the Pueblo of Zuni, and the Ute Mountain Ute Tribe, among others, are bringing suit.

Treaty rights

The U.S. Supreme Court decided two cases in favor of tribes in March and May. In Washington State Department of Licensing v. Cougar Den, the court held that the treaty rights of the Confederated Tribes and Bands of the Yakama Nation should protect a tribal member, the owner of a gas station, from having to pay fuel tax to the state of Washington.¹⁰ In Herrera v. Wyoming, the court upheld the treaty rights of the Crow Tribe in Montana to hunt on off-reservation lands that the nation had ceded in the state of Wyoming. In its decision, the Supreme Court also explicitly overruled an 1896 case, Ward v. Race Horse, which had argued that the establishment of the state of Wyoming had automatically voided the treaty hunting rights of the Shoshone-Bannock Tribes.¹¹

Off-reservation hunting, fishing and gathering rights often create conflict between states and tribes, as states often do not accept that treaties, which are federal law, can give tribes sovereign powers on state territory. The Makah Tribe in the state of Washington is seeking to revive its treaty right to whaling after a decades-long process of academic studies and an initial whale hunt in 1997.¹² Based on a 2015 Environmental Impact Statement,¹³ National Oceanic and Atmospheric Administration (NOAA) Fisheries proposed a 10-year waiver to the Marine Mammal Protection Act in April. A hearing was held in November.¹⁴ Many environmental and conservation organizations continue to oppose the hunt.

The Supreme Court did not render a verdict in the most widely anticipated Native case, however. Instead, in July, it decided to have Carpenter v. Murphy, now Sharp v. Murphy, re-argued. The case should determine whether the state of Oklahoma has jurisdiction over major crimes committed by Native people on land that was guaranteed to the Muscogee (Creek), Cherokee, Choctaw, Seminole and Chickasaw nations in the 19th century. These lands, held by the nations in common, were broken up into individually owned parcels when Oklahoma became a state. The state has long argued and assumed that this terminated the reservation status of the land. However, legal precedent holds that land remains in reservation status unless Congress has explicitly declared otherwise. This would give the federal government jurisdiction over major crimes committed by Native people. In the Sharp v. Murphy case, the offender was sentenced to death by the state but could have received a different sentence in a federal court. In the wider context, if the reservations were never explicitly disestablished, the state would not have jurisdiction over Native people committing major crimes in most of eastern Oklahoma. In December, the Supreme Court announced the addition of a new case to its docket, McGirt v. Oklahoma. This case revolves around the exact same issue. While one of the Justices, Neil Gorsuch, had to recuse himself from Sharp v. Murphy, setting up the potential for an impasse, all nine Justices will be able to hear McGirt. This is one of the most consequential court cases of the past decades.

Indigenous women

In November, President Trump signed an executive order creating the Task Force on Missing and Murdered American Indians and Alaska Natives.¹⁵ The task force will establish protocols of cooperation and data sharing between law enforcement agencies and governments and establish a multi-jurisdictional team to look at cold cases, among other initiatives. The federal government will also invest US$1.5 million to hire coordinators for 11 U.S. Attorney’s offices to better respond to violence against Indigenous people. In September, the Minnesota Missing and Murdered Indigenous Women Task Force met for the first time, one of seven such task forces established by states to study the scope of violence against Native women and the responses by law enforcement (see The Indigenous World 2015).

In December, the Senate failed to pass a bill to re-authorise the Violence Against Women Act. Since 2013, this act has given tribes limited jurisdiction over non-Native perpetrators of domestic violence against Native women if the tribes meet specific guidelines (see The Indigenous World 2014 and 2015). Tribes have seen this as a cornerstone of preventing violence against women. However, the Republican-controlled Senate could not find a way to vote on two opposing re-authorization bills. The bills differ in gun control measures, which is a big obstacle, but the one written by Senator Feinstein (D, California) would also enlarge tribal jurisdiction, and the one written by Senator Ernst (R, Iowa) would put more burdens on tribal jurisdictional efforts and shift authority away from tribal courts.

In August, a three-judge panel of the Fifth Circuit Court of Appeals affirmed that the Indian Child Welfare Act (ICWA) was constitutional and reaffirmed the unique political status of Native nations.¹⁶ In Brackeen v. Bernhardt, the states of Texas, Indiana and Louisiana, together with a few individuals, had challenged the constitutionality of the law that gives sovereignty over Native children in adoption and foster care decisions to tribes (see The Indigenous World 2016 and 2019). The case will be reconsidered by the full court.

Sebastian Braun is Director of American Indian Studies and Associate Professor of Anthropology in the Department of World Languages and Cultures at Iowa State University. This email address is being protected from spambots. You need JavaScript enabled to view it.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

1. Estimates vary depending on definitions. The official Census uses selfidentification. It provides much smaller numbers for those who only identify as American Indian / Alaska Native than it does for those who identify as American Indian / Alaska Native and another population group. The Bureau of Indian Affairs, the Indian Health Service and other agencies of the federal government provide numbers based on enrollment in federally-recognised tribes and/or based on eligibility for their
2. Silencing Science Tracker. Sabin Center for Climate Change Law and the Climate Science Legal Defense Fund. https://climate.law.columbia.edu/ Silencing-Science-Tracker
3. Exclusive: Controversial mining company coached Alaska’s governor to lobby White House. CNN, 20 December 2019. https://www.cnn.com/2019/12/19/ politics/pebble-mine-alaska-governor-controversy-invs/index.html
4. Statewide Threat Assessment: Identification of Threats from Erosion, Flooding, and Thawing Permafrost in Remote Alaska Communities. Report Prepared for the Denali Commission by the University of Alaska Fairbanks Institute of Northern Engineering, U.S. Army Corps of Engineers Alaska District, and U.S. Army Corps of Engineers Cold Regions Research and Engineering Laboratory. Report #INE 19.03. November 2019
5. BLM 2019 National Petroleum Reserve in Alaska. Integrated Activity Plan and Environmental Impact Statement. DRAFT. Volume I: Executive Summary, Chapters 1-3, Glossary, and References. November 2019.
6. BLM 2019 Coastal Plain Oil and Gas Leasing Program. Environmental Impact Statement. FINAL. Volume I: Executive Summary, Chapters 1-3, References, and Glossary. September 2019
7. United States District Court for the District of Montana, Great Falls Indigenous Environmental Network v. Trump. CV-19-28-GF-BMM. Order. Filed 20 December 2019
8. United States District Court for the District of Montana, Great Falls Rosebud Sioux Tribe v. Trump. CV-18-118-GF-BMM. Order. Filed 20 December 2019
9. United States District Court for the District of Hopi Tribe at al. v. Trump. Case No. 17-cv-2590 / 17-cv-2605 / 17-cv-2606 (TSC), Consolidated Cases.
10. Supreme Court of the United Washington State Department of Licensing v. Cougar Den. 586 U.S. (2019). No. 16-1498. 19 March 2019
11. Supreme Court of the United States. Herrera Wyoming. 587 U.S. (2019). No. 17-532. 20 May 2019
12. National Oceanic and Atmospheric Administration 2019 50 CFR Part 216 [Docket 190212104–9261–01] RIN 0648–BI58. “Regulations Governing the Taking of Marine Mammals.” Proposed Rule. Federal Register 84 (66), 1360413624.
13. Makah Tribal Whale Hunt. NOAA https://www.fisheries.noaa.gov/ west-coast/makah-tribal-whale-hunt
14. Formal Rulemaking on Proposed MMPA Waiver and Hunt Regulations Governing Gray Whale Hunts by the Makah Tribe. NOAA Fisheries. https://www.fisheries.gov/action/formal-rulemaking-proposed-mmpa-waiver-and-hunt- regulations-governing-gray-whale-hunts-makah
15. Donald J. Trump. Executive Order on Establishing the Task Force on Missing and Murdered American Indians and Alaska Natives. Issued on 26 November 2019. https://www.whitehouse.gov/presidential-actions/executive-order- establishing-task-force-missing-murdered-american-indians-alaska-natives/
16. United States Court of Appeals for the Fifth Circuit. Brackeen v. Bernhardt. No. 18-11479. Filed 08/09/2019

Tags: Land rights, Women, Business and Human Rights , Climate