Bribed with Our Own Money: Federal Abuse of American Indian Funds in the Termination Era

Native American Voting Rights in Utah: Federal Policy, Citizenship, and Voter Suppression

22 | International Union Rights | 25/4 FOCUS | INDIGENOUS PEOPLES & UNIONS The Tribal Labor Sovereignty Act which narrowly failed to pass Congress provoked strong criticism from US labour.We asked two prominent lawyers what the Act means for Native Americans To understand labour relations in ‘Indian country’ (e.g. ‘reservations’ Native Americans retained after untold land cessions to the US under the barrel of the gun), one must understand the fundamental nature of tribal sovereignty and the relationship between tribal nations and the United States. Indigenous peoples have occupied what is now the US from time out of mind, and in so doing exercised governmental authority over their respective tribal citizens and their lands. After the American Revolution, the US Constitution defined treaties with tribal nations as the ‘Supreme law of the land’. The Constitution also granted Congress broad authority over Indian affairs. Centralising power over Indian affairs within the federal government had practical consequences: it was essential for systematic colonisation. The Supreme Court established early on that tribes are ‘domestic dependent nations’ and that the US has a trust responsibility to protect their sovereign authority as governments. The Supreme Court subsequently described the sovereignty of Indian tribes as of ‘a unique and limited character’, which ‘exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers’1. The Court also established that the federal trust responsibility to protect tribal sovereignty requires ambiguities in statutes affecting tribal nations to be construed in favour of tribal self-determination2. Thus, if Congress is silent on the question of whether a federal law may be imposed on a tribe in a manner that would undermine its inherent sovereign authority, the ‘proper inference… is that the sovereign power remains intact’3. Labour and Employment Relations In Indian Country It is well-established that tribes have inherent sovereign power to govern labour and employment relations within Indian country, their territorial jurisdiction, in accordance with their own laws. Tribal nations engage in a host of economic activities on their lands to raise governmental revenues for the provision of governmental services to their members. These include the operation of casino resorts, timber and other natural resources industries, and many more. In these settings, tribes retain inherent sovereign authority to enact and enforce labour and employment laws. Many tribes have enacted laws to govern unions and collective bargaining as well as employment discrimination. Non-citizens of Indian nations who take up employment with tribes or their enterprises in Indian country are also subject to these laws. The National Labor Relations Act (NLRA) enacted in 1935 – establishes and protects the right of private-sector employees to organise and join unions and to engage in collective bargaining with employers. The NLRA expressly excludes the federal government, states, and municipalities from its application; it applies only to private employers. Labour organising in the public sector is separately governed by state and federal laws, which differ in substantial ways from the NLRA. Congress is silent on the application of the NLRA to tribal nations or their enterprises within Indian country. For nearly 75 years, the National Labor Relations Board (NLRB) had held that tribal nations and their enterprises in Indian country are not ‘employers’ subject to the NLRA, in recognition that tribal nations are sovereign governments, like the state and federal governments. NLRB applies the NLRA to tribal gaming operations In 2004, the NLRB changed course and held that a tribe engaged in gaming within Indian country to generate governmental revenues in accord with the Indian Gaming Regulatory Act (IGRA) was an ‘employer’ subject to the NLRA. The ruling was upheld on appeal4. The Court said that because operation of a casino was ‘not a traditional attribute of self-government’ and the tribe employed noncitizens at the casino, tribal sovereign interests did not warrant construing Congress’s silence in favour of the tribe. The San Manuel decision has been roundly criticised by federal Indian law scholars. Tribal nations engage in gaming pursuant to the IGRA to generate governmental revenues to support badly needed governmental services for tribal members. The IGRA requires that tribes use the net revenues from gaming to...

22 | International Union Rights | 25/4 FOCUS | INDIGENOUS PEOPLES & UNIONS The Tribal Labor Sovereignty Act which narrowly failed to pass Congress provoked strong criticism from US labour.We asked two prominent lawyers what the Act means for Native Americans To understand labour relations in ‘Indian country’ (e.g. ‘reservations’ Native Americans retained after untold land cessions to the US under the barrel of the gun), one must understand the fundamental nature of tribal sovereignty and the relationship between tribal nations and the United States. Indigenous peoples have occupied what is now the US from time out of mind, and in so doing exercised governmental authority over their respective tribal citizens and their lands. After the American Revolution, the US Constitution defined treaties with tribal nations as the ‘Supreme law of the land’. The Constitution also granted Congress broad authority over Indian affairs. Centralising power over Indian affairs within the federal government had practical consequences: it was essential for systematic colonisation. The Supreme Court established early on that tribes are ‘domestic dependent nations’ and that the US has a trust responsibility to protect their sovereign authority as governments. The Supreme Court subsequently described the sovereignty of Indian tribes as of ‘a unique and limited character’, which ‘exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers’1. The Court also established that the federal trust responsibility to protect tribal sovereignty requires ambiguities in statutes affecting tribal nations to be construed in favour of tribal self-determination2. Thus, if Congress is silent on the question of whether a federal law may be imposed on a tribe in a manner that would undermine its inherent sovereign authority, the ‘proper inference… is that the sovereign power remains intact’3. Labour and Employment Relations In Indian Country It is well-established that tribes have inherent sovereign power to govern labour and employment relations within Indian country, their territorial jurisdiction, in accordance with their own laws. Tribal nations engage in a host of economic activities on their lands to raise governmental revenues for the provision of governmental services to their members. These include the operation of casino resorts, timber and other natural resources industries, and many more. In these settings, tribes retain inherent sovereign authority to enact and enforce labour and employment laws. Many tribes have enacted laws to govern unions and collective bargaining as well as employment discrimination. Non-citizens of Indian nations who take up employment with tribes or their enterprises in Indian country are also subject to these laws. The National Labor Relations Act (NLRA) enacted in 1935 – establishes and protects the right of private-sector employees to organise and join unions and to engage in collective bargaining with employers. The NLRA expressly excludes the federal government, states, and municipalities from its application; it applies only to private employers. Labour organising in the public sector is separately governed by state and federal laws, which differ in substantial ways from the NLRA. Congress is silent on the application of the NLRA to tribal nations or their enterprises within Indian country. For nearly 75 years, the National Labor Relations Board (NLRB) had held that tribal nations and their enterprises in Indian country are not ‘employers’ subject to the NLRA, in recognition that tribal nations are sovereign governments, like the state and federal governments. NLRB applies the NLRA to tribal gaming operations In 2004, the NLRB changed course and held that a tribe engaged in gaming within Indian country to generate governmental revenues in accord with the Indian Gaming Regulatory Act (IGRA) was an ‘employer’ subject to the NLRA. The ruling was upheld on appeal4. The Court said that because operation of a casino was ‘not a traditional attribute of self-government’ and the tribe employed noncitizens at the casino, tribal sovereign interests did not warrant construing Congress’s silence in favour of the tribe. The San Manuel decision has been roundly criticised by federal Indian law scholars. Tribal nations engage in gaming pursuant to the IGRA to generate governmental revenues to support badly needed governmental services for tribal members. The IGRA requires that tribes use the net revenues from gaming to...

The Inflation Reduction Act, the largest US investment in renewable energy development and climate mitigation, provides incentives for critical minerals to be mined in North America. The rise in domestic mineral procurement is already reigniting historic conflicts between the Federal Government and Indigenous peoples over Tribal sovereignty. This study utilizes a Conflict Transformation framework to investigate the structural roots of mining conflicts and their impacts on Tribal Nations through two parts. Part One examines the extent to which Tribes were engaged in the formulation of the Inflation Reduction Act. Part Two presents three case studies of the local impacts of mining conflicts and includes the perspectives of a range of stakeholders involved in mining conflicts. The study finds that Tribal Nations were not sufficiently included in the formulation of the Inflation Reduction Act and that local conflicts are rooted in patterns of environmental degradation, colonialism, and broken promises to Tribal communities. Recommendations for transforming this conflict include strengthening environmental regulations, improving Tribal consultation, and commencing a long-term Truth and Reconciliation process between the Federal government and Tribal Nations.

U.S. Department of Energy (DOE) employees and contractors frequently work with Indian tribes or nations as part of their jobs. The purpose of this guide is to help DOE employees and contractors initiate contact with tribes and build effective relationships. DOE maintains a unique government-to government relationship with tribal nations. This guide presents an overview of the history of the relationship between the tribes and the Federal government, as well as the laws and Executive Orders that define that relationship. The guide discusses the Federal government’s trust responsibility to the tribes, tribal treaty rights, and the Department of Energy’s American Indian policy. The guide also discusses important cultural differences that could lead to communication problems if not understood and provides examples of potential cultural misunderstandings. In particular the guide discusses tribal environmental beliefs that shape tribal responses to DOE actions. The guide also provides pointers on tribal etiquette during meetings and cultural ceremonies and when visiting tribal reservations. Appendix 1 gives examples of the tribal nations with whom DOE currently has Memoranda of Understanding. While this guide provides an introduction and overview of tribal relations for DOE staff and contractors, DOE has also designated Tribal Issues Points of Contacts at each of its facilities. A list of these Points of Contact for all DOE facilities is provided in Appendix 2. DOE staff and contractors should consult with the appropriate tribal representatives at their site before initiating contact with a tribal nation, because many tribes have rules and procedures that must be complied with before DOE staff or contractors may go on tribal lands or conduct interviews with tribal members. Appendix 3 is the complete DOE American Indian Policy. Appendices 4-6 are Executive Orders that govern the relationship of all federal agencies with tribal nations. DOE employees and staff are encouraged to educate themselves about the history and culture of tribal nations near DOE facilities.This guide provides a first step in that direction.

Native Americans in the Susquehanna River Valley, Past and Present and In the Shadow of Kinzua: The Seneca Nation of Indians since World War II

Examining Tribal Environmental Law

Enhancing Language Services to Native American Children: A Look From the Inside

Indigenous peoples worldwide face barriers to participation in water governance, which includes planning and permitting of infrastructure that may affect water in their territories. In the United States, the extent to which Indigenous voices are heard—let alone incorporated into decision-making—depends heavily on whether or not Native nations are recognized by the federal government. In the southeastern United States, non-federally recognized Indigenous peoples continue to occupy their homelands along rivers, floodplains, and wetlands. These peoples, and the Tribal governments that represent them, rarely enter environmental decision-making spaces as sovereign nations and experts in their own right. Nevertheless, plans to construct the Atlantic Coast Pipeline prompted non-federally recognized Tribes to demand treatment as Tribal nations during permitting. Actions by the Tribes, which are recognized by the state of North Carolina, expose barriers to participation in environmental governance faced by Indigenous peoples throughout the United States, and particularly daunting challenges faced by state-recognized Tribes. After reviewing the legal and political landscapes that Native nations in the United States must navigate, we present a case study focused on Atlantic Coast Pipeline planning and permitting. We deliberately center Native voices and perspectives, often overlooked in non-Indigenous narratives, to emphasize Indigenous actions and illuminate participatory barriers. Although the Atlantic Coast Pipeline was cancelled in 2020, the case study reveals four enduring barriers to Tribal participation: adherence to minimum standards, power asymmetries, procedural narrowing, and “color-blind” planning. We conclude by highlighting opportunities for federal and state governments, developers, and Indigenous peoples to breach these barriers.

What Is the Relationship between Higher Education and Neoliberalism in the United States?

When the United States initiated possessory claims to what became the state of Alaska in 1867, government officials and lawmakers disagreed on whether the Indigenous inhabitants (collectively referred to as Alaska Natives) should be included in the purview of federal Indian policy. Preceding the 1871 cessation of US treaty making with tribal nations by only four years, the federal government did not dispatch any treaty commissioners to Alaska, and the commissioner of Indian affairs argued against extending the jurisdiction of the Bureau of Indian Affairs to Alaska Natives. Consequently, government officials never signed treaties with Alaska Native nations, and Congress refrained from adopting legislation that would recognize the existence of Indian Country or aboriginal title in Alaska. This foreclosed the customary means by which the United States recognized and negotiated with Indigenous people as members of sovereign nations. Because Indigenous legal and political rights hinged on nation-to-nation negotiating status in the United States, these decisions had profound implications for Alaska Natives throughout the major federal Indian policy eras of treaty making and removal, assimilation and allotment, the Indian Reorganization Act, Termination Policy, and Self-Determination. Government officials and lawmakers racially and legally conceived of Indigenous Alaskans as distinct from Indigenous peoples of the contiguous states and territories, and these distinctions came to inform law and policy at the outer reaches of US territorial expansion. This ambiguity of their legal status also informed Alaska Native legal and political strategies as they sought to compel the federal government to recognize their land rights, sovereign rights to self-government, and rights as US citizens. To this end, they mobilized their longstanding Indigenous legal and political orders and their relationships to their homelands in navigating US colonialism throughout the 19th and 20th centuries.

Tribes are Public Health Authorities: Protecting Tribal Sovereignty in Times of Public Health Crisis

Synching Science and Policy to Address Climate Change in Tribal Communities

Claiming Turtle Mountain’s Constitution examines the formation and adoption of the first constitution of the Turtle Mountain Band of Chippewa Indians through the eyes of the tribal members who voted to adopt it. Focusing on the late nineteenth and early twentieth centuries, this work of legal and social history describes the seminal moment in which the people of Turtle Mountain chose their constitution as a means to accomplish a much larger political goal: beginning a lawsuit against the federal government. By decentering the federal government, the federal actors of the time, and federal legislation such as the Indian Reorganization Act, Claiming Turtle Mountain’s Constitution reorients the tribal citizens who made this important decision at the heart of their own governance and legal, political, and social history. The Plains Ojibwe and Métis who merged together – within the vise of settler colonialism – to become the Turtle Mountain Band of Chippewa Indians were distressed at the federal government’s disruption of their leadership structure, their treaty, and their reservation and for decades sought a lawsuit against the federal government to rectify these wrongs. The tribal nation adopted a constitution in 1932 that many recognized as deficient and limiting in the hopes that it would lead toward a lawsuit. Tribal citizens have lived with the consequences of this difficult choice ever since. Claiming Turtle Mountain’s Constitution argues that understanding the origins of tribal constitutions from the tribal nation’s perspective is crucial to understanding both historical and contemporary tribal governance and American constitutionalism more broadly.

J O U R N A L O F A M E R I C A N I N D I A N E D U C A T I O N – 5 4 , I S S U E 1 1 Editors’ Introduction Sovereignty and Education: An Overview of the Unique Nature of Indigenous Education bryan mckinley jones brayboy, susan c. faircloth, tiffany s. lee, margaret j. maaka, and troy a. richardson According to creek scholar K. Tsianina Lomawaima (2000), “The history of American Indian education can be summarized in three simple words: battle for power” (p. 2). This statement concisely illustrates the larger complex struggle regarding the schooling of American Indians, Alaska Natives, and Native Hawaiians. Education was and in many ways continues to be (1) a battle for the hearts and minds of Indigenous nations; (2) a colonial call for assimilation; and (3) a responsibility of the federal government arising from a series of agreements between Indian nations and the United States meant to open up land bases to a burgeoning immigrant population. In short, the education of Indigenous peoples is intricately intertwined with the legal/political relationship between Indigenous peoples and the U.S. government, as well as myriad racist policies and practices that have devastated Indian children and communities.1 In this introduction, we briefly outline this relationship and offer an overview of the articles that follow. Indigenous peoples2 have inhabited the lands that comprise the contemporary “United States of America” since long before its origination as a nation-state. Without the almost 400 treaty3 agreements signed between the first inhabitants and the European emigrants, which resulted in the ceding of over 1 billion acres of land, the United States could not have been established (for more details regarding this subject see, generally , the work of: Vine Deloria Jr., Vine Deloria Jr. and Clifford M. Lytle, Rebecca A. Tsosie, David Wilkins, and Robert A. Williams). Congress later ratified these treaties, or agreements between equals. Today, these treaty agreements remain in effect, holding the United States responsible 2 J O U R N A L O F A M E R I C A N I N D I A N E D U C A T I O N – 5 4 , I S S U E 1 for providing for the general welfare of the American Indian peoples as well as supplying critical social services, such as health care and education (Deloria & Lytle, 1983). This arrangement, which confers a special relationship unlike any other, has historically influenced and continues to influence schooling for American Indians. In order to better understand and appreciate the unique educational challenges facing present-day American Indian and Alaska Native communities,4 it is important to understand their unique history and political relationship with the United States. The legacy of European invasion, incessant attempts to dispossess American Indians of their lands and culture(s), and the cumulative effects of colonization and forced assimilation have resulted in a unique context from which to understand Indigenous education and the persistence of tribal communities . Our hope is to offer a primer for those unfamiliar with Indigenous education and to offer a refresher and framing mechanism for those familiar with the education of Indigenous peoples. What Does American Indian “Sovereignty” Mean? American Indian, as well as Alaska Native (AI/AN) and Native Hawaiian populations, are the most diverse in the country. American Indians, in particular, represent more than 560 distinct federally recognized tribes (sometimes referred to as tribal nations)5 and at least half as many distinct state-recognized groups (U.S. Census Bureau, 2007). Each tribal nation has its own history, culture, and language. Although not all tribes are federally recognized, those who are share in common their distinctive government-to-government relationship with the federal government. Moreover, enrolled members of such tribes have the benefit of multiple citizenships (e.g., to tribal/Indigenous nation, nationstate , state, and in some cases, clan societies) wherein they do not lose civil rights because of their status as tribal citizens, and individual tribal citizens are not denied tribal rights because of their U.S. citizenship (Deloria & Lytle, 1983). Given their unique history and political...