Not Trusting the “Trustee”

Four-years after the US Secretary of the Department of the Interior established the Secretarial Commission on Indian Trust Administration and Reform the five member panel issued its Final Report on 10 December 2013. Commission members included Quinault President Fawn Sharp (Chair), Dr. Peterson Zah, First elected President of the Navajo Nation, Stacy Leech, Cherokee, Professor of Law at the University of Arkansas, past president of the National Congress of American Indians Tex G. Hall, and Robert Anderson, Chippewa, Professor of Law and director of the Native American Law Center at the University of Washington.

Commission members noted after conducting hearings throughout the United States the overall theme they heard is, “the federal government as a whole needs more firm direction as to what the trust responsibility is, and that it is an obligation to be carried out by every federal agency exercising authority affecting Indian interests–not just the Bureau of Indian Affairs and the Agencies within the Department of the Interior.”  The Commission drew on testimony from representatives of Indian Nations/Alaskan Natives, academic institutions, non-profit organizations, inter-tribal organizations, federal agencies and and various experts on US government trust administration.

The Commission’s general conclusion?

• Federal agencies are often doing the “bare minimum” through insincere or non-existent consultations to comply with existing Executive and Secretarial Orders. In other words, despite the US President’s mandate to all federal agencies to carry out consultations with Indian and Alaskan Native governments in a balanced exchange of information, officials of federal agencies merely conduct “listening sessions” and then proceed to carry out policies and activities that best suit the agency and not necessarily the interests of Indian or Alaskan Native government.
• Federal government officials exercise their duties very narrowly in connection with the Trust Responsibility applied to damage claims won by tribal governments against the United States with results that benefit the United States.
• The fiduciary obligations of the United States assumed under treaties and other agreements with Indian nations and Alaskan Natives “should not be guided by the standards employed in damage cases,” but, rather they must act in a “manner that is respectful and protective of tribal interests in sovereignty and natural resources, as well as treaty rights.”

The obvious conclusion for this writer after reading the Commission’s report is that Indian nations and Alaskan Natives cannot trust the trustee. Officials and the agencies of the US government place primary emphasis on the interests of the United States over the interests of Indian nations and Alaskan Natives (Hawaiian Natives too) despite all of the US Presidential Executive Orders and Directives mandating due diligence, care, respect and honesty to faithfully preserve, protect and guarantee the rights and property of the indigenous nations. This is virtually the same conclusion issued to the US Congress by the Joint Congressional Commission, American Indian Policy Review Commission in 1977. That Commission urged the establishment of an Independent Trust Commission and the same recommendation is made by this Secretarial Commission.

The US government’s policies toward Indian Nations, Alaskan Natives and Hawaiian Natives have remained the same since the formation of the three-part Department of Indian Affairs in the 17th century. That “department” was essentially the first government agency even before the United States government was constituted in 1789. It is the department on which was based the formation and organization of virtually all other US government agencies established by the Continental Congress and later the US Congress. The “bureaucracy” about which Indians and Alaskan Natives constantly complain is the basis for all US government bureaucracies. Why would one expect the agencies of the US government to function differently except in the “self-interest of the United States of America.” The often quoted Albert Einstein may here again be paraphrased: Indians and the United States go through the same tussles over how to organize the “trust responsibility” and responses of US agencies in much the same way over and over again expecting different results. This remains the pattern with this Commission’s report. Nuances aside, the Report essentially repeats the often stated demand by Indian Country: “… fulfill your obligations under treaties, agreements and other arrangements and stop violating our rights.”

Asking a battering husband to stop battering, “please,” does not result in reduced or stopping the violence. The only solution is a break away from the relationship to create enough distance so the batterer can no longer violate and hurt.

I have written on numerous occasions that it is time for leaders of Indian nations, Alaskan Natives and Hawaiian Natives to break from the perpetual ritual of asking the United States government to “make nice.” The solution to battering experienced is to begin stepping away and the UN Declaration on the Rights of Indigenous peoples (with all of its flaws and short comings) opens the door to creating that distance.

Article 4 of the UN Declaration opens the door for Indigenous Nations world wide and indigenous nations in the United States of America to systematically seek formal political, economic and cultural autonomy as a measure of political change moving toward fuller self-government. Limiting the “trust responsibility” means indigenous nations must now assume greater direct authority and responsibility over their own affairs. This will mean the formation of new internal and external institutions to create security and accountability for each nation. This means reaching out to other governments to explore social, economic, political and cultural exchanges to spread out the forms of external influences on the internal affairs of each nation.  The USA now dominates influences on the internal and external affairs over each nation. This means that the monopoly of interests is held by the United States government. This means that indigenous nations inside the US must tow the line along side the US even if their interests follow another path. By establishing new inter-tribal relations based on fair and honest trade, economic mutual benefit, political mutuality, social ties and cultural sharing each nation establishes new forms of inter-dependence. By establishing new inter-governmental relations with UN members states and other indigenous nations in the world each nation establishes new forms of inter-dependence.  All of this broadens each nations social, economic, political and cultural options instead of depending solely on one relationship with the United States that inevitably evolves into the US government monopolizing interests in its favor and to the disadvantage of indigenous nations it claims to be protecting.

If respect for the rights and sovereignty of Indian Nations, Alaskan and Hawaiian Natives is to mean tribal specific social, economic, political and cultural development without external interference, then new institutions such as a formal intergovernmental framework between indigenous nations and the US government must be established. Negotiations must replace mere consultations and listening sessions and sustained political development of indigenous nations must be the goal. Since Indian Nations, Alaskan Natives and Hawaiian Natives cannot trust the trustee, then political autonomy must be the next step to perfect self-government.