The assets of American Indian and Alaska Native tribes would make anyone else in the world wealthy. Their landholdings of almost 100 million acres, if aggregated, would form a land base larger than all states except Alaska, Texas and California. And these lands are rich in resources, with timber, range and crop land, oil and gas reserves, uranium deposits and water reserves, and a host of other tangible assets.
Yet tribes are the single poorest population group in the United States, justifying the unique title “land rich, dirt poor.”
The problem is that tribes do not control tribal assets. To the contrary, federal policy toward Native peoples in America has always put others in control of tribal assets. Whether these others are colonial agents of usurpation, or agency superintendents, or businessmen sizing up an Indian deal, or corporations seeking advantage, or state governments demanding tribute from “their” tribes – they have all found ways to gain from tribal assets while the Native owners go without.
Whether in small towns or corporate boardrooms, government offices or legislative assemblies or courtrooms, these mostly sordid gains depend on the same underpinning: the majority of assets still owned by tribes are by law held “in trust” for them by the Department of Interior through its subordinate agency, the BIA.
True enough, not every tribe since the outset of the reservation era has been qualified at all times to manage its own affairs in a cash economy. But this became a self-fulfilling critique as Native peoples in America were habitually discouraged from managing their own affairs – this set the stage for the ongoing transfer of tribal assets into other hands. It is the trust status of tribal assets that has enabled our trustee, the federal government, and its delegates to concentrate the levers of dispossession in judicial, legislative, and administrative venues.
In judicial settings, tribes regularly prove that the greatest wrongs have been committed against them – but tribes generally haven’t been at the table when the laws were drafted, leading to what one Alaska Native leader has called “weasel-worded disclaimer language” that leaves tribes without recourse in the courts. The latest decision to demonstrate this crippling weakness of our legal system is the Supreme Court’s ruling in March that without specific statutory language in place, tribes cannot hold the trustee accountable for its clear and knowing participation in the miscarriage of justice for tribes.
What’s more, on those occasions when evidence of historical mismanagement (that would stagger an ox) is proved to even a courtroom’s satisfaction, settlement almost never includes lost interest or earnings from lost revenues.
In legislative settings, tribes simply cannot count on Congress for the dollar-for-dollar restitution of our losses, or often for correction of the laws that facilitate these losses. The current Cobell litigation over the Individual Indian Monies accounts is a classic example: after 15 years of effort on all sides, Congress passed a reform law in 1994 that may be another 15 years or more in implementation. And just you watch: Congress will not risk bankrupting the country to recompense our losses, but will rather come up with a settlement that falls far short of the dollar-for-dollar obligation other errant trustees must meet.
But perhaps most wrongful of all to tribes is the administrative setting – here over years, government agents have agreed with corporate interests on the valuation of tribal assets for leasing, almost always to the detriment of tribes compared with private sector lessees. Land is leased at below market rates in a clearly co-dependent lowball “bargaining” arrangement that benefits under-funded federal agencies and corporations, but not Native beneficiaries. Oil prices are suggested by companies and accepted by federal agents in negotiations not involving Indian beneficiaries. Royalties are under-collected on the administrative watch of government-indemnified careerists who bite off a solid paycheck while Indians settle for scraps and (often) resign themselves to thinking they’ve got it good.
Where is the safeguard against conflict of interest, de rigueur for other trust administrators? Everywhere else where law abides under the authority of the Securities Exchange Commission, it is well-known that a trustee must conduct client affairs with an undivided interest – conflicted interests are forbidden. Under the duty of care, a trustee is required to execute transactions with prudence and in the manner most favorable to the beneficiary.
One example of how the government’s neglect of these standards works together against Indians should be presented in detail. Until 1962, Interior held it to be illegal, a violation of trust, for tribes to develop their own mineral properties. Like the owners of many other asset classes in Indian country, tribes were simply leaseholders. Negotiations took place, if they took place at all, between government delegates and business interests, an exclusive club that did not admit Indians. The law, the court system and administrative practice kept it thus for generations. The result is that instead of enjoying a fair share of the nation’s $280 billion a year power industry, tribes owning 10 percent of the resources that fuel it received less than 1 percent of power industry revenues in 1999. Although improvement since must be noted, that is the kind of legacy we are up against.
Who in their right mind would want the BIA as an asset manager? But without the right to hire or fire the asset manager, much less to seek a demonstrably more qualified replacement, tribes have watched as probably billions of dollars of natural resource assets have been mismanaged, or rather managed for the benefit of non-Native interests.
Tribal control of trust assets must be the theme of tribal activities and of federal policy going forward.