The U.S. Department of Interior (DOI), through the BIA, is trying to change 280 provisions in federal law, which for centuries have governed the legal relationship between tribal governments and the U.S. government. The proposal calls these laws in Title 25 of the United States Code “outdated,” “conflicting” and “archaic.” In February of 2003, the Department plans to submit this proposal to Congress for legislative action.
Unless the DOI can be persuaded to include adequate input from Indian country into the proposal, tribal governments are going to face additional paternalistic advances from the federal government and perhaps even threats to their unique existence.
The National Congress of American Indians recently weighed in on this plan and stated, “Moving forward with this broad proposal for overhauling the entire title of the United States Code devoted to federal Indian law is not in the best interests of Indian tribes, nor of the Department of Interior.”
I am concerned that some federal lawmakers appear to support the proposal, though adequate consultation and negotiated rule making between the federal government and tribal governments have not occurred. Rather than DOI adequately including tribal governments in the decision-making aspect of the proposal, the Department moved on its own. It simply sent out information packets to the tribes with an indication that the proposal would be used as a guideline for legislation. Not surprisingly, the vast majority of Indian country is opposed to DOI’s proposal.
There are some outdated laws governing Indian country. For example, a law providing funds to Indians who want to adopt the habits of civilized life (25 U.S.C. section 185) and another requiring the Secretary to certify which persons are permitted to trade with the Indians (25 U.S.C. section 262). In fact, tribal governments may want these laws changed. However, tribal governments must have the right to weigh in on all matters that affect their people and land.
Overall, tribal governments simply want the federal government to adhere to the government-to-government relationship and the Executive Order on tribal consultation as they relate to this proposal for Title 25.
Many of the laws slated for change or termination in the proposal are among the pillars of federal Indian law, including the important concept of federal preemption of state laws in Indian country. The limited role of state government in Indian country is no accident. It results from both retained tribal sovereignty as well as the Supremacy Clause as applied in Indian affairs. Such laws are used to show federal preemption over use and alienation of tribal government property and control over economic development and trade activities.
Title 25 also contains the history of tribal governments and the laws that govern the relationships among tribes, their neighbors and the federal government. Their abolishment would negatively impact tribal self-government. Each tribal government has a unique legal relationship and history with the federal government. Determining which laws are in fact “archaic” would require a tremendous amount of legal analysis and input from tribal governments.
In July of 1790, the first Congress enacted the Non-Intercourse Act, which is fundamental to federal Indian law. This act defined substantive rights and duties in the field of Indian affairs. The law invokes federal power under the Constitution over the sale or conveyance of Indian lands and serves as a major pillar of federal law that protects Indian lands. Under DOI’s plan to revise or eliminate unnecessary sections of Title 25, this act would be terminated.
DOI seems to be missing or overlooking the major flaws inherent in its proposal to overhaul Title 25. The Department should divert the time and energy allocated for this task to matters of more immediate concern. Health care, education, employment, housing, sacred sites, homeland security and the economy are all in pressing need of attention. In any case, DOI should not move forward with changing Title 25 without consultation with tribal governments.
Congressman Frank Pallone, Jr., D-N.J. currently serves as an active member of the Native American Caucus of the U.S. House of Representatives. As a member of the House Resources Committee – the committee with jurisdiction over all matters regarding the relations of the United States with Native Alaskans and American Indian tribes – he has been a defender of the sovereign status of Indian tribal governments.