Tribal Governments Research Articles

COVID-19 Pandemic and Indigenous Representation in Public Health Data.

Public Health 3.0 calls for the inclusion of new partners and novel data to bring systemic change to the US public health landscape. The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) pandemic has illuminated significant data gaps influenced by ongoing colonial legacies of racism and erasure. American Indian and Alaska Native (AI/AN) populations and communities have been disproportionately affected by incomplete public health data and by the COVID-19 pandemic itself. Our findings indicate that only 26 US states were able to calculate COVID-19‒related death rates for AI/AN populations. Given that 37 states have Indian Health Service locations, we argue that public health researchers and practitioners should have a far larger data set of aggregated public health information on AI/AN populations. Despite enormous obstacles, local Tribal facilities have created effective community responses to COVID-19 testing, tracking, and vaccine administration. Their knowledge can lead the way to a healthier nation. Federal and state governments and health agencies must learn to responsibly support Tribal efforts, collect data from AI/AN persons in partnership with Indian Health Service and Tribal governments, and communicate effectively with Tribal authorities to ensure Indigenous data sovereignty. (Am J Public Health. 2021;111(S3): S208-S214. https://doi.org/10.2105/AJPH.2021.306415).

Mechanical thinning without prescribed fire moderates wildfire behavior in an Eastern Oregon, USA ponderosa pine forest

Reducing fuels to better manage risk of high severity wildfire in seasonally dry, fire-prone forests of the western U.S. is an important goal of forest managers, including private landowners, non-governmental organizations, tribal, state, and local governments, and federal agencies. Managing fire risk is a critical objective of the U.S. Forest Service, which emphasizes the use of thinning to reduce tree density and ladder fuels followed by prescribed fire to reduce surface fuel. But the area of Forest Service land treated with thinning and prescribed fire is lagging far behind the area treated only with mechanical thinning due to regulatory and logistical challenges in prescribed fire implementation. Determining if mechanical thinning alone (without prescribed fire) can achieve adequate fire risk reduction has important implications for addressing the fire and fuel management goals set by Congress and the Administration, as well as the management objectives set by non-federal actors. In this study, we report on the effects of mechanical thinning and standard post-thinning fuels management but without prescribed fire on modeled fire behavior and changes in fuel loading over time in a ponderosa pine forest in Eastern Oregon. Thinning without prescribed fire significantly reduced potential crown fire immediately following thinning and also moderated surface modeled fire behavior beginning 2–3 years following thinning. Although small (<7.6 cm diameter) woody surface fuel loading increased following thinning, other ground and surface fuels (i.e., litter and duff) declined substantially, which we attribute to surface disturbance from ground-based logging, decreased deposition of litter, and increased decomposition. These results suggest that fuel reduction and fire risk management objectives can be met with mechanical thinning alone for a number of years. Prescribed fire is likely necessary to extend the effectiveness of mechanical thinning after significant tree or shrub regeneration. Continued monitoring will allow managers to use prescribed fire most efficiently to achieve fire and fuel management objectives.

A typology of drought decision making: Synthesizing across cases to understand drought preparedness and response actions

Drought is an inescapable reality in many regions, including much of the western United States. With climate change, droughts are predicted to intensify and occur more frequently, making the imperative for drought management even greater. Many diverse actors – including private landowners, business owners, scientists, non-governmental organizations (NGOs), and managers and policymakers within tribal, local, state, and federal government agencies – play multiple, often overlapping roles in preparing for and responding to drought. Managing water is, of course, one of the most important roles that humans play in both mitigating and responding to droughts; but, focusing only on “water managers” or “water management” fails to capture key elements related to the broader category of drought management. The respective roles played by those managing drought (as distinct from water managers), the interactions among them, and the consequences in particular contexts, are not well understood. Our team synthesized insights from 10 in-depth case studies to understand key facets of decision making about drought preparedness and response. We present a typology with four elements that collectively describe how decisions about drought preparedness and response are made (context and objective for a decision; actors responsible; choice being made or action taken; and how decisions interact with and influence other decisions). The typology provides a framework for system-level understanding of how and by whom complex decisions about drought management are made. Greater system-level understanding helps decision makers, program and research funders, and scientists to identify constraints to and opportunities for action, to learn from the past, and to integrate ecological impacts, thereby facilitating social learning among diverse participants in drought preparedness and response.

Why the Navajo Nation was hit so hard by coronavirus: Understanding the disproportionate impact of the COVID-19 pandemic

The COVID-19 (SARS-CoV-2) pandemic of 2019–2020 has incurred astonishing social and economic costs in the United States (US) and worldwide. Native American reservations, representing a unique geography, have been hit much harder than other parts of the country. This study seeks to understand the reasons for the disproportionate impact of the pandemic on Native American communities by focusing on the Navajo Nation – the largest Native American reservation in the US. I first reviewed the historical pandemics experienced by Native Americans. Guided by the literature review, an institutional analysis focusing on the Navajo Nation suggests a lack of both institutional resilience and healthcare preparation. The analysis further identified four factors that could help explain the Navajo's slow response to the COVID-19 pandemic: prevalence of underlying chronic health conditions, lack of institutional resilience, the relationship between the federal government and tribal governments, and lack of social trust. Relevant policy implications are discussed. For instance, to better prepare Native American communities for shocking events like the COVID-19 pandemic in the future, policymaking should integrate informal institutions to build efficient formal institutions for self-governance. Promoting public health education and establishing collaborations between Native and non-Native communities are also necessary long-run strategies.

Partnering on the Evaluation of the Montana Tribal Tobacco Program: The Story of a Successful State-Tribal Collaboration

American Indian and Alaska Native (AI/AN) communities have historically been subject to unethical research and evaluation practices imposed upon them by outsiders. Given this history and the often, strained relationships between state and tribal governments, tribes can be hesitant to work with and trust state agencies to conduct research and evaluation in their communities. This paper shares a collaborative process undertaken by the Montana Department of Public Health and Human Services, American Indian Tobacco Prevention Specialists, and James Bell Associates, Inc., to successfully develop and implement a locally meaningful evaluation project. Together, we designed a culturally responsive evaluation study to examine the impact of the Montana Tobacco Use Prevention Program being implemented in tribal and urban Indian communities. We co-authored this paper to ensure the perspectives of all three groups were represented. We share lessons learned and recommendations for state agencies, tribes, and urban Indian organizations seeking to evaluate tribal public health programs.

Participation or frustration? Local stakeholders and the National Environmental Policy Act (NEPA): Donlin gold project, Western Alaska

This paper examines the implementation of the National Environmental Policy Act (NEPA) at the Donlin Gold project in Western Alaska. The Donlin Environmental Impact Statement (EIS) was led by the Army Corps of Engineers to inform federal agency decisions about the issuance of permits including a Section 404 Clean Water Act Permit and a Section 10 Rivers and Harbors Act Permit. As is required by the law, the EIS also investigated and disclosed many environmental impacts that were beyond the scope of the federal permits. The Donlin EIS was widely viewed as more detailed than most other EISs. The EIS process also included local tribal governments as cooperating agencies. Despite the EIS's detail and stakeholders’ increased role, many stakeholders felt that these efforts were insufficient. Stakeholders expressed frustration with the NEPA process and the regulators who implemented it. They reported that they felt patronized by a bureaucratic process that focused on fitting stakeholder concerns into technical and scientific disciplines for analysis by outside experts. This study concludes that augmenting the quantity of scientific study, even in response to the concerns of stakeholders, is unlikely to increase local stakeholders’ satisfaction with NEPA. Rather, regulatory personnel must focus on building trust between their agencies and local communities through 1) direct engagement with local stakeholders beyond the one-way forum of public meetings and 2) transparent dialog early in the NEPA process about the law's limitations with respect to turning stakeholders’ concerns into enforceable project requirements.

As a Squash Plant Grows

Researching and designing Internet infrastructure solutions in rural and tribal contexts requires reciprocal relationships between researchers and community partners. Methodologies must be meaningful amid local social textures of life. Achieving transdisciplinarity while relating research impacts to partner communities takes care work, particularly where technical capacity is scarce. The Full Circle Framework is an action research full stack development methodology that foregrounds reciprocity among researchers, communities, and sovereign Native nations as the axis for research purpose and progress. Applying the framework to deploy television white space infrastructure in sovereign Native nations in northern New Mexico reveals challenges for rural computing, including the need to design projects according to the pace of rural and tribal government workflows, cultivate care as a resource for overworked researchers and community partners, and co-create a demand for accurate government data around Internet infrastructures in Indian Country and through rural counties.

American Indians and Alaska Natives in the COVID-19 Pandemic: The Grave Burden We Stand to Bear.

The United States is bearing witness as a crisis-within-a-crisis unfolds across Indian Country, where a persistently underfunded system with inadequate resources and outdated facilities set the stage for coronavirus disease 2019 (COVID-19) to overwhelm Tribes. Now is the time to reimagine our way forward as a country beyond the pandemic. To address these issues, we recommend that (1) the federal government appropriately fund the Indian Health Service and work more closely with tribal governments, and (2) programs that recruit, train, and retain American Indian and Alaska Native (AIAN) health professionals be expanded. We offer guidance on decisive and impactful steps that can be taken, together, today.

Evaluating hazard awareness brochures: Assessing the textual, graphical, and numerical features of tsunami evacuation products

Many people visit or live in areas that are exposed to natural or technological hazards but lack sufficient information to protect themselves when a disaster threatens. Hazard and emergency managers in federal, state, local and tribal government, as well as scientists and educators in tsunami warning centers, try to meet this need by providing essential information about hazards and appropriate protective actions. To date, however, there has been limited guidance for the preparation of hazard education products such as maps and brochures. Accordingly, this article reviews research on hazard education, warning systems, and warning response, as well as research findings on the communication of textual, numeric, graphic, and cartographic information in risk messages. This review produced an evaluation rubric comprising eight criteria—1) general evaluation criteria, 2) hazard-specific content, 3) environmental cues content, 4) hazard warning (sources/channels/messages) content, 5) preparedness actions content, 6) response actions content, 7) numeric information, and 8) maps. These criteria are illustrated by four experts’ evaluations of six tsunami evacuation products (TEPs—brochures and standalone maps). Although the small samples of raters and TEPs limit the generalizability of the results, this evaluation shows how hazard and emergency managers can assess the quality of preliminary TEP designs before conducting more scientifically rigorous evaluations using experimental or quasi-experimental designs.

Decolonizing VAWA 2021: A Step in the Right Direction for Protecting Native American Women

The Violence Against Women Act (VAWA) was hallmark legislation aimed at combating violence against women. While violence against women is a national issue that affects women of all race/ethnicities, it affects Native American women the most, as Native women experience the highest rates of violence. Violence against Native women is rooted in colonization because it decreases the power of tribal government, diminishes tribal sovereignty, and devalues Native Americans, which in turn leaves Native women more vulnerable to victimization. As such, amendments to VAWA must take particular action on violence against Native women, including actions that support decolonization. The 2013 VAWA reauthorization acknowledged colonization and was the federal government’s first step in the decolonization process. It restored tribal jurisdiction over some VAWA crimes, but there are still gaps regarding protecting Native women. This policy analysis examines the proposed VAWA reauthorization, HR 1620, and provides three specific recommendations in order to better protect Native women: (1) allow tribes to write their own rape laws, (2) expand tribal jurisdiction to all VAWA crimes and stranger and acquaintance violence, and (3) enhance tribes’ abilities to secure VAWA funds and resources. These recommendations are discussed in terms of existing literature and implications for Native people and Native communities.

The Navajo Nation Healthy Diné Nation Act: A Description of Community Wellness Projects Funded by a 2% Tax on Minimal-to-No-Nutritious-Value Foods.

To promote the health of the Navajo people, the Navajo Nation passed the Healthy Diné Nation Act (HDNA) in 2014. The HDNA included a 2% tax on "minimal-to-no-nutritional-value" foods and waived 5% sales tax on healthy foods, the first such policy in the United States and any sovereign Tribal nation. Uniquely aligned with Tribal government structures, revenue was directly allocated to 110 small local government entities (Chapters) for self-determined wellness projects. To characterize HDNA-funded wellness projects, test for variation in project type, and funding amount over time by region and community size. Longitudinal study assessing funded wellness projects from tax inception through 2019. The Navajo Nation. One hundred ten Navajo Nation Chapters receiving funding for self-determined wellness projects. The categories and specific types of wellness projects and funding over 4 years by region and community size. Of revenue collected in 2015-2018, more than 99.1% was disbursed through 2019 ($4.6 million, $13 385 annually per community) across 1315 wellness projects (12 per community). The built recreational environment category received 38.6% of funds, equipment/supplies 16.5%, instruction 15.7%, food and water initiatives 14.0%, and social events 10.2%. Most common specific projects were walking trails ($648 470), exercise equipment ($585 675), food for events ($288 879), playgrounds ($287 471), and greenhouses ($275 554). Only the proportion allocated to instruction changed significantly over time (increased 2% annually, P = .02). Smaller communities (population <1000) allocated significantly higher proportions to traditional, agricultural, and intergenerational projects and less to the built environment. Through 2019, more than 99% of HDNA revenue was successfully disbursed to 110 rural, Tribal communities. Communities chose projects related to promoting the built recreational environment, agriculture, and fitness/nutrition education, with smaller communities emphasizing cultural and intergenerational projects. These findings can inform other indigenous nations considering similar policies and funding distributions.

Secured Transactions Laws and Economic Development on American Indian Reservations

Harmonized commercial laws are considered an essential ingredient to commerce and trade and have been called the backbone of American commerce. Key components of these laws are those governing secured transactions. In recent years, Native American tribal governments have moved to adopt commercial codes to increase economic development on their reservations, but many have modified these codes to address challenges to tribal sovereignty and culture. This paper compares reservations that adopted modified secured transaction acts to reservations that adopted uniform laws. We demonstrate that reservations can potentially experience substantial economic gains from either form of adoption.

“The Jesuit mission proves we were here”: The Case of Eighteenth-Century Jesuit Missions Aiding Twenty-First Century Tribal Recognition

Abstract Records indicate that during the French colonial period, Jesuits established four mission congregations within the territory now known as Vermont. These missions were established to preach to both French colonists and Native converts on Isle La Motte, on the Missisquoi River in Swanton, at Fort Saint-Frédéric on Lake Champlain, and in the area known as the Koas on the Connecticut River. In the twentieth and twenty-first centuries, the Abenaki peoples of Vermont have had a long and difficult road to gain state and federal recognition. These descendant communities have invoked the existence of Jesuit missions to the Abenaki as proof of the current tribal governments’ legitimacy. This is intriguing considering the blame for cultural destruction is often laid at the feet of Jesuit missionaries. This paper examines the relationship between historical and archaeological evidence of French Jesuits and the legal legitimization of the Abenaki of Vermont.

Commercial Tobacco Retailing in Tribal Jurisdictions: A Field Study

Objectives: Our objective was to provide data contrasting commercial tobacco retailing in Tribal versus non-Tribal jurisdictions, in 3 states. These data may be relevant for US Food and Drug Administration regulation of Tribal retailing. Methods: With Tribal permission, observations were made on commercial tobacco advertising, product variety, pricing, and retail concept for stores within and just outside Tribal jurisdictions in areas of Arizona (AZ), California (CA), and Oklahoma (OK). Results: A total of 87 Tribal (20 AZ, 53 CA, 14 OK) and 67 (10, 43, 14) non-Tribal retailer visits were completed. There was substantial variation across tribes, with sales in AZ and most CA Tribal jurisdictions handled at convenience stores, whereas OK Tribal retailing was done mostly in specialized tobacco-specialty shops. Electronic cigarettes were ubiquitous across Tribal and non-Tribal outlets. Advertising and breadth of cigarette offerings was most extensive in the tobacco specialty retailers of Tribal OK. Surprisingly, Tribally manufactured cigarettes were found only at some CA Tribal retailers. Conclusions: Some Tribal commercial tobacco outlets actually price above their non-Tribal competitors and there is substantial variation in retailing strategy across Tribal jurisdictions. Tribal governments can continue to evaluate and reform commercial tobacco retailing so as to improve Tribal health.

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

The COVID-19 pandemic has highlighted existing gaps in public health systems across the country including federal Indian health systems. Despite treaty obligations to provide health care to American Indians and Alaska Natives, the federal government has consistently underfunded Indian health facilities. Federal Indian health programming remains piecemeal, often falling victim to Congressional politics for continued funding, requiring inter-Tribal competition for grant and cooperative agreement funding, or requiring Tribal cost sharing. Tragically, but, unsurprisingly given failures in federal Indian health policy, many American Indian and Alaska Native communities have experienced health inequities throughout the pandemic. In several states, American Indians have higher rates of COVID-19 infections as well as worse health outcomes, including higher mortality, than their non-Indian counterparts. By exercising their inherent sovereignty as Tribal Nations, many Tribes have been able to mitigate failings in federal Indian health policy in their COVID-19 response. Unfortunately, reports across Indian country have found instances of state and local governments failing to adequately engage Tribal governments in public health activities, even those implicating Tribal members on Tribal lands, citing lack of Tribal public health authority. Not only is this legally inaccurate, but it also limits Tribal public health response efforts, and infringes on Tribal sovereignty.This issue brief discusses the legal authority for Tribes to serve as public health authorities. First, it describes the inherent authority of Tribes to engage in public health activities. Second, it discusses the recognition of Tribal public health authority across federal law and programs. This issue brief ends by discussing strategies to reinforce Tribal authority in times of public health crisis.

The chronic uncertainty of American Indian property rights

AbstractProperty institutions should ideally provide economic actors with certainty that their local choices about investment will not be unsettled by shifting political economic equilibria. We argue that for this to occur, political autonomy, administrative and enforcement capacity, political constraints, and accessible legal institutions are each necessary. A comparison of the evolution of property rights for settlers and American Indians in the United States shows how political and legal forces shape the evolution of property institutions. American Indians, who had property institutions before Europeans arrived, could not defend their land from Europeans and later Americans due to lacking military capacity. Settlers' property rights were relatively secure because the government had sufficient autonomy and capacity to broadly define and enforce their rights, political institutions constrained the government from expropriating settlers' property, and legal institutions provided a forum for settlers to adjudicate and defend their rights in court. Native Americans, in contrast, had systematically inconsistent and often expropriative policy treatment by the government. Although tribes have technically been sovereign since the 1970s, tribal governments continue to lack sufficient political and legal autonomy and capacity to define and enforce property institutions in response to evolving local conditions.

A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development

Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous Nations as one of the most powerful judicial statements in the history of federal Indian law: “On the far end of the Trail of Tears was a promise.” McGirt is a landmark United States Supreme Court decision that rejects Oklahoma’s century-long presumption that no Indian reservations remained in present-day Oklahoma. Acting on that presumption, Oklahoma had long exercised civil and criminal jurisdiction over most of the State, including Indians and non-Indians alike.In reaffirming the reservation boundaries of the Muscogee (Creek) Nation, the Court rejected Oklahoma’s exercise of criminal jurisdiction over a major crime committed by an Indian within Indian country. The implications of the McGirt decision are potentially far-reaching and will likely extend to both criminal and civil jurisdiction of federal, state, local, and tribal governments. The reaffirmed reservations of the similarly situated “Five Tribes” collectively span half of the state of Oklahoma. This article explores one aspect of the potential civil jurisdictional implications of McGirt: the sovereign power of taxation. We include a detailed analysis of what has changed, and what remains the same for purposes of federal, tribal, state, and local taxing authority.McGirt is heralded as ushering in substantial changes for the eastern half of Oklahoma. However, in order for the Five Tribes to fully realize all treaty-based promises, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal and tribal governments. The “promise” Justice Gorsuch highlights was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including the power of taxation. With the reaffirmation of reservation boundaries and the reassumption of many governmental responsibilities, the Five Tribes must necessarily have the power to raise meaningful revenue to govern. If the Five Tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country. This article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate long-term economic strategies that will take advantage of tax attributes that attach to the various reaffirmed reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments. If the challenge of sovereignty is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.

Across the City Council Divide

Across the City Council Divide Rob Harper (bio) Patrick Spero, Frontier Rebels: The Fight for Independence in the American West, 1765-1776. New York: W. W. Norton, 2018. 288 pp. $27.95 Mary Stockwell, Unlikely General: "Mad" Anthony Wayne and the Battle for America. New Haven: Yale University Press, 2018. x, 363 pp. $35.00. In early 2019, the city council of Fort Wayne, Indiana, established an annual celebration of its namesake. General "Mad" Anthony Wayne is best known for forcing Miami, Shawnee, and other Native leaders to accept the United States' territorial demands, primarily by torching the homes and crops of thousands of Native people. An array of critics, ranging from local historians to the Miami Tribe of Oklahoma, quickly denounced the decision. The resolution's detractors seized on its numerous and sometimes laughable inaccuracies (the text describes events that took place only on the fictional TV show Turn: Washington's Spies) but also asked whether Wayne's real achievements were worth celebrating. Most succinctly, a local graffiti artist tagged the city's replica fort with the words "No Pride in Native Genocide." Meanwhile, the resolution's author, city councilor Jason Arp, proclaimed that his critics "don't care for America or American history" and were "just not patriotic." On social media, one supporter replied to the Miami nation, the region's's original occupants: "White people have history too. We won get over it. You would still be in the stone age if it weren't for us."1 In recounting the uproar, journalist Charlie Savage argued that his hometown had become a front in the "Culture Wars," with jingoistic self-identified patriots, echoing then-President Donald Trump, squaring off against those calling for an honest reckoning with America's white supremacist past. But both the anti-Wayne spray painter and the anti-Miami Internet commentator remind us that the dispute over Anthony Wayne is also part of a high-stakes debate over the place of Indian nations in the present-day United States. The Miami Tribe of Oklahoma, headquartered over six hundred miles from its ancestral homeland, carried weight in the city council debate at least in part because the United States recognizes it as a sovereign native nation (Miami people still living in Indiana enjoy no such recognition). But in recent years [End Page 222] a far-reaching anti-sovereignty movement has challenged the legal standing of Native nations and called into question their relationships with state and local governments. In 2020, a landmark U.S. Supreme Court ruling upheld the territorial sovereignty of Native nations, but by only a slender 5-4 majority. In any number of local jurisdictional disputes, tribal governments' legal and constitutional authority hangs in the balance.2 In this climate, debates over whether to acknowledge Native genocide, or whether Native peoples should "get over it," carry implications that are anything but academic. What do professional historians contribute to the fray? The record is mixed. For several decades, the field of Native American history has grown prodigiously, both in the number of specialized publications and in the prominence of Native people in major syntheses. Under the banner of #VastEarlyAmerica, early Americanists have expanded their field to encompass the peoples of North America entire, as well as their myriad connections throughout the Atlantic and even the Pacific worlds. Increasingly, specialists seek to elucidate Indigenous peoples' social structures, belief systems, and relations with one another on their own terms, rather than through the lens of their dealings with Europeans. Thanks to Patrick Bottiger's Borderland of Fear (2016), Michael McDonnell's Masters of Empire (2015), and Sami Lakomaki's Gathering Together (2014), among others, we know far more today about the histories that Miamis, Odawas, and Shawnees (respectively) brought to their encounters with Anthony Wayne. Nonetheless, there is reason to question the impact of these insights on early American history writ large. In a 2012 essay, James Merrell lambasted a parade of scholars for disregarding the recent literature and instead relying on stereotype-laden tropes and terminology that elide Native agency and sovereignty. Historians of colonial expansion, he wrote, too often perform a "legerdemain that leaves Indians savages in all but name."3 More...

The Treaty Imaginary and Tribal Sovereignty in South Dakota

This article examines the history of the South Dakota "Mitigation Act" (as it is commonly know by Lakota people) in the 1990s and early 2000s. The Mitigation Act, enacted in 1998 and implemented over a period of nine years, was meant to create a negotiated agreement between tribal governments and the state for jurisdiction over the regulation of hunting and fishing on the Missouri River that would avoid a long history of bitter litigation over jurisdictional contests. The act was also meant to return lands held by the US Army Corps of Engineers, originally acquired for the purpose of constructing three main-stem dams on the Missouri, to the tribes that had originally held the land, and to the State of South Dakota. Both the goal of negotiating state and tribal jurisdiction, and returning lands to the state and the tribes, led to heightened intensity of the very tribal-state conflicts that the act was meant avoid. Based primarily on the senatorial records of Senator Thomas Daschle (D-SD) and the gubernatorial papers of William Janklow (R), the article examines the logic of the "treaty imaginary" among Lakota tribal governments and their constituencies, and the liberal democratic principle of negotiation by "all interested parties" at the center of development of the Mitigation Act. The article ties the conflict over the act to its fundamental misrecognition of the continuing validity of treaties for Lakota people, and the family resemblance the act had to the illegal taking of the Black Hills for many Lakota and other Great Sioux Nation tribes.

Simple Tribal Co-Management: Using Existing Authority to Engage Tribal Nations in Co-Management of Federal Public Lands

Each year Native American tribal nations enter hundreds of federal contracts worth billions of dollars to run federal Indian programs. By substituting tribal governments for federal agencies, these “self-determination contracts” have been enormously successful in improving the effective delivery of federal programs in Indian country. However, tribal governments wish to do more. Tribes wish to co-manage federal public lands, including lands that lie outside their reservations, and they have a lot to offer in this area. For example, a tribe might seek to contract with the Fish & Wildlife Service to operate a wildlife refuge, or with the National Park Service to manage a park or monument or even with the Bureau of Reclamation to operate a federal dam. Tribes are natural partners for much of this work. Many federal units are located on lands that are, or were, tribal aboriginal lands. Although the federal government has had the legal authority to enter such contracts since 1994, federal agencies have been slow to enlist tribes in the management of federal public lands. A review of the few existing successful cases suggests that tribes confront dramatically different dynamics when seeking to contract functions with agencies beyond the Bureau of Indian Affairs or Indian Health Service and other agencies providing services to Indian people. At a time when indigenous-led conservation is crucial to addressing climate change and our national conservation goals, this article examines the obstacles to tribal co-management of public lands and proposes solutions.