Terry L. Anderson
This story has been corrected since it was first published.
In 1879, after Chief Joseph and his band were sent to live in Oklahoma, far from their ancestral land in the Northwest, he said, “Let me be a free man, free to travel, free to stop, free to work, free to trade where I choose, free to choose my own teachers, free to follow the religion of my fathers, free to talk, think and act for myself.”
Last year, when Mark Zuckerberg visited the Blackfeet Reservation in Montana, not much had changed. As he saw it, the problems on the reservation “come back to the basic idea of freedom.”
American Indians are free to travel from reservations. However, if they choose to stay on reservations, their incomes will be about one-third less than those who leave. In 2015, on-reservation incomes were 68 percent below the U.S. average of $53,657.
Before European contact, American Indians enjoyed the freedom to trade. Lewis and Clark saw this when a trade axe made by their blacksmith and traded during the winter of 1805 in the Mandan villages (now North Dakota) greeted them six months and 2000 miles later at the headwaters of the Columbia River.
Today the ability of reservation Indians to trade is constrained by the fact that they don’t really own their land. Though reservation lands total the size of Idaho, most land in Indian Country is held in trust by the federal government, which means it is owned by the federal government.
The notion of trusteeship dates back to Chief Justice John Marshall’s 1831 declaration that the relationship of Indians to the federal government is like that of “a ward to its guardian.” The guardian is the Bureau of Indian Affairs.
Trusteeship constrains the freedom to trade because trust land cannot be used as collateral to obtain capital investment. Peruvian economist Hernando de Soto calls this “dead capital.” Dead capital makes it nearly impossible for reservation Indians to build a house, to improve productivity of agricultural land, or invest in a business. In essence, Indians are not free to trade their capital.
Trusteeship requires layers of bureaucratic oversight. Responding to regulations requiring more archeological surveys in 2015 on land that has been farmed for 70 years, tribal councilman Stoney Anketell of the Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation said, “It’s been tilled, plowed, planted, harvested. There’s no teepee rings.” Perhaps this is why Crow Tribal Chairman A. J. Not Afraid says BIA stands for “Bossing Indians Around.”
At a recent conference at Stanford’s Hoover Institution, Sheldon Spotted Elk, a former Chief of Staff to the Ute Indian Tribe of the Uintah and Ouray, said that getting a permit to drill a well on trust land takes about 300 days compared to 30 days on private land. Trusteeship and fragmented ownership patterns on the Fort Berthold Reservation in North Dakota significantly delayed energy development during the height of the Bakken fracking boom. Economists Bryan Leonard and Dominic Parker estimate that delays in 2010 reduced royalty income by $20,824 per American Indian living on the reservation. For context, per capita Indian income on Fort Berthold was $13,543 in 2010.
Before European contact, North American Indians had private property rights in everything from teepees to horses to fishing and hunting territories. Not surprisingly. Indians invested in those assets. For example, in the Pacific Northwest, owners of beaches moved boulders and deposited sand in order to create “clam gardens.”
Speaking for indigenous people on both sides of the 49th parallel, Manny Jules, former Canadian First Nation chief, said, we just want the same “real property rights and protections as other Canadians.” Similarly, according to Zuckerberg, “If people have the freedom to do what they want—whether that's taking a chance on a new idea or building their community—the inherent creativity and goodness in people will help different parts of society flourish.”
American Indians will only have freedom when they are released from colonial institutions that hold them and their assets hostage to bureaucratic trustees. They need secure title to their lands and clear jurisdictions for self-governance. On Indigenous People’s Day 2018—139 years after Chief Joseph’s speech—it is time for American Indians to assert jurisdiction over their reservations and for the federal government to release them from guardianship.