Sunday, December 11, 2011

Erick Rhoan, of Strict Liabilty in Blog, on Obama Administration and the Indian Community. It's Congress' Probem

Our friend Erick Rhoan, of Strict Liability in Blog has a differing view of our recent post about President Barack Obama's complicity in the destruction of Native Americans. He posted in our comments, but I feel it's due a promotion

I think the Obama Administration is taking a very cautious route into addressing the needs of the Indian Community. Part of the reason, I believe, is because of the oftentimes confusing and counter-intuitive nature of Indian law and precedents.

However, we've seen some progress: 1) the signing of the Tribal Law & Order Act into law; 2) ordering the Department of Justice to settle the Cobell Lawsuit; and 3) lending support to the United Nations Declaration on the Rights of Indigenous Peoples. All of these things were the right thing to do. Even if there are problems with them, it’s still a good starting point.

With respect to unrecognized tribes, that is a problem that will require much more than Obama's authority as Executive. To redress this problem will require: 1) Congressional overhaul of the Indian Civil Rights Act; and 2) administrative overhaul of the Office of Federal Acknowledgment and the tribal recognition process pursuant to 28 C.F.R. Part 83.

Furthermore, it's important to remember that Indians are Congress' problem, not the President's. The President's function in the Executive Branch is to sign laws into effect and enforce them. It is Congress's job as Legislative Branch to write the laws, and the poorly written laws (and how UN treaties are adapted within our constitutional framework) are what is at issue here, not Presidential action. Article I, Section 8, clause 3 of the US Constitution expressly delegates the regulation of commerce with Congress.

I'm not saying the Administration is wholly blameless. The President can still urge Congress to do something about the gross injustices levied against unrecognized tribes by poorly written laws, which I would like to see more of. Also, I can point to at least two other areas where the President had good intentions, should have followed through with those intentions and then later backed away when the issue either got too complicated or he faced too much pressure from the Republicans: 1) Guantanamo; and 2) Iran. Within the quirky subset of American jurisprudence that is Indian Law, dealing with unrecognized tribes is a deep, dark area of an already murky subject matter.

In short, suggesting that the Obama Administration is somehow complicit with not giving federally unrecognized tribes the equality they deserve is somewhat inaccurate. That being said, I would like to see something said on behalf of the unrecognized.

Thank you Erick, for your contributions to our blog and our readers can see more of Erick's articles on:

Tribal Disenrollments

Tillie Hardwick Settlement
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