Are American Indian Nations ‘Wards of the Federal Government’?
Gale Courey Toensing
Arizona Republican Congressman Paul Gosar got himself into a heap of trouble recently for saying American Indian Nations are “wards of the federal government.” The remark offended tribal members and prompted a former United States attorney to call it “race-baiting.” But the good news is that Gosar’s comment provides the opportunity for a public conversation about the contradictory status of the country’s original nations, a legal expert said.
“What’s most intriguing about Gosar’s statement is it brings the subject of trustship/wardship out as a clear issue so it becomes possible to analyze it,” said Peter d’Errico, a consulting attorney on indigenous issues and ICTMN columnist. Technically, Gosar can point to case law to support his statement that American Indian Nations are wards of the government, but the politics of the world has changed and the court has not caught up with it, d’Errico told ICTMN.
“One of the main things to do now is write about it and talk about it. Isn’t Gosar’s comment strange? Where does it comes from? What does it mean? How did we get here? Isn’t it odd that we can have this outmoded doctrine still legal when we’ve moved so far in the direction of the government-to-government relationship and the internationalization of Indigenous Peoples’ rights? It’s a very contradictory moment,” d’Errico said.
Gosar made the comment during a public meeting in Flagstaff in early December during a discussion about the controversial land swap legislation – the Southeast Arizona Land Exchange and Conservation Act of 2013 – which he sponsored. The bill will allow Resolution Copper Co., a subsidiary of the controversial international mining conglomerate Rio Tinto, to acquire 2,400 acres of the federally protected public land in the Tonto National Forest in southeast Arizona for a massive copper mine. The land is part of the aboriginal territory of the San Carlos Apache Tribe and is a sacred place of ceremony and prayer for other tribes in the region as well.
In exchange for the 2,400 acres of forests, streams, desert, grasslands, craggy mountains, and huge rock formations with ancient petroglyphs, Resolution Copper will give the federal government 5,000 acres of overgrazed grassland, burned out forests and dry riverbeds in various parcels of land scattered around the state. Included is a parcel of approximately 3,000 acres that cannot be mined or developed because it’s in a flood plain. Photos of the exchange properties can be seen here.
The tribes, environmental organizations and local citizens successfully opposed the copper mine for a decade, but this year Sen. John McCain was instrumental in attaching the Orwellian-named Southeast Arizona Land Exchange and Conservation Act of 2013 as a rider to the $559.2 billion National Defense Authorization Act (NDAA) along with several other land-related bills inserted by various lawmakers. The Senate approved the NDAA by a vote of 89-11 on December 11. President Obama is expected to sign it soon.
During the discussion in Flagstaff Paul Stago, a member of the White Mountain Apache Tribe, voiced his concerns about the proposed copper mine, according to the Associated Press. That’s when Gosar made the comment that stunned people at the round table talk, the AP said. “You’re still wards of the federal government,” Gosar responded, according to the report.
Stago said the phrase is antiquated and ignores advances made in tribes managing their own affairs and seeking equal representation when it comes to projects proposed on land they consider sacred.
“He [Gosar] kind of revealed the truth — the true deep feeling of the federal government: ‘Tribes, you can call yourselves sovereign nations, but when it comes down to the final test, you’re not really sovereign because we still have plenary authority over you,’” Stago told the AP.
Troy Eid, a Republican and former U.S. attorney in Colorado, told the AP that “wards of the federal government” is no different from the old and ethnically offensive language that defines core concepts of Indian law.
“That’s just not appropriate,” Eid said. “In the heated context of what this represents, it’s especially inappropriate to be resorting to what amounts to race baiting.”
In an email response to ICTMN’s request for comments, Gosar stood by his comment. “The federal government’s dirty little secret is that Native American tribes are not fully sovereign nations in today’s society as many people are led to believe. My comments made at the roundtable last Friday were about this reality and current laws that govern the relationship between tribes and the federal government,” Gosar said.
There is nothing in the Constitution that gives Congress its claimed plenary power, meaning complete control, over Indian nations that were fully sovereign before the European invasion and colonization of the continent. But there are a number of laws on the books that assume that power and describe Indians as “wards of the government,” beginning with the 1823 ruling in Johnson v McIntosh. That case asserted the Doctrine of Discovery (DoD) as the basis of federal power. The racist and discredited doctrine, based on 15th century papal bulls, gave Christian explorers the right to claim and exploit on behalf of their monarchs any lands they “discovered” that were not occupied by Christians.
The Johnson ruling, which laid the foundation for federal Indian law, said that tribes had no ownership rights to property but ”were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it [the discovery].”
A few years later in Cherokee Nation v. Georgia, the court further defined the status of tribes. They could not be considered as “foreign” states, the court said. “They may, more correctly, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage; their relation to the United States resembles that of a ward to its guardian.”
The phrase – wards of the federal government – has been used most notoriously in the 1885 case United States v. Kagama, d’Errico said. “That court was infamous also for saying it couldn’t find any basis in the law to support the notion [that Congress has plenary power over Native Americans], but it was going to do it anyway.”
Describing Native Americans as “wards of the nation,” the court, in an oddly circular argument, concluded, “From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.”
More recently, the 1955 case of Tee-Hit-Ton Indians v. United States reaffirmed the Doctrine of Discovery and institutionalized religious discrimination against Native Americans, d’Errico said.
“And Te-Hit-Ton was decided by the very same court that overruled the separate but equal doctrine. So we have this very famous decision – Brown v. Board of Education – ending legalized racism and you have the same court 13 months later legalizing religious discrimination! It’s just so bizarre that those old doctrines, those notions of wardship in a political sense have been surpassed and superseded, but in a legal sense are still there.”
Even more recently is the case of State of Michigan v. Bay Millis Indian Community which was ostensibly a win for tribal sovereign immunity, but the Supreme Court justices “all pointed to plenary power, saying if congress wanted to get rid of Bay Mills, they could do it,” d’Errico said.
So the notion that Congress has plenary power over Indians whom Congress claims are wards of Congress was built through case law based on the discredited Doctrine of Discovery and continues because these cases have never been overturned?
Yes, d’Errico said, but aside from being outdated and unfounded, the 19th century notion of ‘wardship’ has clearly been surpassed by the government-to-government relationship. “That relationship has been articulated very strongly even in the Nixon administration and continuously thereafter but there’s still the infrastructure of federal Indian law that continues these archaic primitive notions.”
Appealing to the courts that created these laws to undo them is not likely to succeed. D’Errico said it’s up to Indian leaders to right these wrongs.
“Tribal nation leadership has to be alert to the ways these outmoded doctrines still exist in federal Indian law. What I see time and time again is many of them seem to look the other way as long as things seem to be going smoothly and they don’t realize how much danger there is. Then all of a sudden something like the Rio Tinto copper mine happens and they say, ‘Oh, my! We have no protection at all. What are we going to do?’ Well, they shouldn’t be waiting for the crisis moment to turn their attention to these dangerous disabling doctrines,” he said.
The United Nations should be used to the advantage of the original nations, d’Errico said. He noted that the UN Permanent Forum on Indigenous Issues’ special report on the Doctrine of Discovery, which was written by ICTMN columnist Steve Newcomb and presented by Tonya Gonnella Frichner, was discussed at three different forums, but was not mentioned at the recent World Conference on Indigenous Peoples(WCIP) .
“If one of your most important issues is land and you’ve already developed a critique of the Doctrine of Discovery right at the U.N. you should be saying the U.N. should at least be paying attention to itself!” d’Errico said.
Perhaps most important, d’Errico said, is the need for leaders and others to de-colonize their minds. He pointed to a recent rift over participation at the WCIP between those who insisted on attending because they would be given “a seat at the table” ad those who called for cancelling the event, saying the seat at the table is useless because the U.N. state members aren’t really paying attention to indigenous voices.
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“Leadership should be paying attention to what’s really at stake and not be waylaid by empty promises and the so-called flash and glamor of being able to sit at the table,” d’Errico said. “Once the colonizer has set in motion this process by which local elites want to get on board to get the perks of being a colonial operator, the game’s over. The colonizer can just sit back, they’ve created a self-perpetuating machine and the colonized will take care of policing themselves for the benefit of the colonizee.”