Monday, April 24, 2017

Can Donald Trump FAIL to UPHOLD Federal Trust Responsibility To the Same Magnitude as Barack Obama?

We KNOW that former President Barack Obama's administration FAILED to protect the individual Indian from harm by their tribal leaders.  Can we expect Donald Trump to fail as miserably?  Why do our leaders IGNORE THEIR MORAL RESPONSIBILITY?

WHO can be the BIGGER FAILURE on
Trust Responsibility to Native Americans

We write about tribal disenrollment most often, but this goes deeper, including coverage of health care and all the benefits that should come to ALL Indian people.

As noted Native American attorney Gabe Galanda wrote last year:

Dating back to the Marshall Trilogy, the federal trust relationship has been deemed one of "moral responsibility."  Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

The Supreme Court explained it most profoundly in Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942): 

Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust.
The High Court has even invoked America's honor in reference to the Indian trust responsibility:  “Out of its peculiar relation to these dependent peoples sprang obligations to the fulfillment of which the national honor has been committed.”  Heckman v. United States, 224 U.S. 443, 437 (1912).

And from the United States' national honor and moral trust responsibility, arises "the duty of protection," towards both tribes and tribal members.  Id.  Indeed: 

In exercising this broad authority, past Secretaries have acknowledged that the Department's relationship with Indian tribes and individual Indian beneficiaries is guided by the trust responsibility and have expressed a paramount commitment to protect their unique rights and ensure their well-being, while respecting tribal sovereignty.” 

Throughout Indian Country, Tribal officials have taken actions which have denied and/or stripped ten thousand individual Indians of their citizenship rights and privileges as Tribal members and denied them access to federal benefits and programs in the areas of housing, education, health, voting and public works assistance. In most cases, these rights have been stripped without due process.

If you recall, in President Obama’s State of The Union, he said this: “But rarely we can agree that the right to vote is sacred; that it’s being denied to many. Well it certainly is TRUE in Indian Country, where many of us, who have been disenrolled can no longer vote in tribal elections or on a matter that will affect us.

The United States has a trust responsibility to the thousands of individual Indians whose basic rights have been infringed upon. Unfortunately, the Bureau of Indian Affairs has determined that their trust responsibility extends only to the Tribal government and government officials and not to the thousands of individual Indian victims.  (h/tip Emilio Reyes )

Please,  let's not let President Trump be as horrible on Native Rights issues as former President Obama was.   Help us to turn the volume up and make the spotlight we are shining on corruption be brighter.  SHARE this and other posts on YOUR Social media.


Reinstatement_Restitution said...

The federal government operates under the policy that the government to government relationship is with the elected leaders of a tribe. Indians who are members of federally recognized tribes are eligible to participate in programs and services, however, the BIA does not recognize individual interests in tribal land, assets, and resources, and instead views these as held communally by the tribe.

This contradicts courts decisions that say that Indians have a protected interest in the land, assets, and resources of their reservations, and must share equitably in these interests.(Puzz v. United States, 1988; Short v. United States, 1978). Sharing is not done at the tribal level; it is done at the individual level, but only when the tribe approves it.

Is there any wonder why disenrollment is hotly disputed? It is a weapon used by tribal leaders to consolidate power, remove opposition, increase shares for those who remain enrolled, and to reduce membership. Tribes with reduced membership are inherently weaker, which is the best argument against disenrollment, but the warning goes unheeded.

The BIA presides over these disputes with full knowledge that civil rights and tribal law are being violated, but claims that it cannot interfere in internal tribal matters. In California Valley Miwoks v. Jewell the court ruled that the BIA must intervene when rogue leaders interfere with individual members' federal benefits, but the agency is clinging to the argument that this decision only applies to the unique conditions of the California Valley Miwoks. We are caught up in this Catch-22: The agency that is entrusted with the responsibility to fulfill the obligations of the federal government to Indians is committed to protecting the federal government against liability arising from the damage inflicted by the agency, and to promoting the agendas of tribal leaders.

The heinous and injurious incompetence of the BIA was exposed in the Cobell suit. The BIA badly managed the Individual Indian Money accounts of Indians throughout the United States and could not provide an accounting of over $4 billion dollars that belonged to Indians. The BIA said that it could not locate the account tracking for the money, and that it was simply lost (or was it misappropriated, misplaced, or stolen?).

The agency is guilty of institutionalized corruption; we have seen it over and over again. At this point we must question if the can BIA be trusted to administer federal programs and benefits. At the very least the employees' motives and intentions are clearly suspect. The BIA operates to benefit tribes and in their eyes tribal leaders are the tribes, while individual Indians are susceptible to paper genocide.

This means that Indians must not look to the BIA for help, for the agency has none to offer. The BIA is far too busy protecting the interests of the federal government and tribal leaders to be concerned about the fate of individual Indians, and so a battle is being waged in the Courts. The BIA is involved in constant litigation with tribes and Indians trying to extricate the agency from their affairs. The agency spends more time and money fighting legal battles than protecting the interests of Indians.

I wonder if the new administration will appoint an AS-IA that will work to promote the welfare of Indians as to opposed to that of tribal leaders. It it clear that the BIA has general authority to manage Indian affairs for the benefit of Indians, but has failed to exercise that authority. Instead the agency pretends that corrupt leaders represent the interests of tribes and help those leaders promote agendas that divide tribes, undermine tribal democracy, and destroy the community.

White Buffalo said...

I think you have your answer in how he treated the Indians at the Standing Rock Reservation when he overturned an EO that President Obama created to protect the rights of this Nation. I am sure you are glad the President Obama is gone, but I have not seen any real effort to create change by trump other that take credit for the work of the past administration.

Michael Kickingbear said...

Trump has a LONG history of only wanting to work with tribes with there is personal benefit to him. Two tribes have fired him from projects for MIS-management. When he assumed native people would. Not take the time to check on what he was doing. He (falsely) assumed we were only interested in making money.

After those two experiences, suddenly we were all "not real Indians". And he began to trash us in the media... by buying billboards in Mohawk Indian territories with anti-tribal casino rhetoric. Later in 1993, at a hearing in Washington, trump was asked to testify about accusations of organized crime being rampant on Native American reservation where gaming enterprises existed.

Here is that exchange:

Now he calls himself the president of the United States. He surrounds himself with an enteragè of white nationalists. The secretary of the BIA and the secretary of the EPA are both big oil people. Do you think they will be fair to the tribes that care about the environment? The United States Attourney general voted against the violence against women's act which was revised to include and strengthen efforts to solve missing and murdered indigenous women's cases.

Looking towards the trump administration for help to to have a better record on indigenous rights is a complete waste of time in my opinion. Tribes are willing to engage with this administration because they have to. Not because they feel things will get better for them. Because they won't.

There may be some future options at the United Nations. However, the trump administration even has a bill in congress which requests of congress to pull the United States completely out of the UN. However, there is a document being worked on right now that would allow tribes and even individuals to seek help. The document would extend the existing indigenous rights document that is already ratified by the UN where most countries have now adopted it, including the US (in 2010)

Anonymous said...

Kickingbear, you ever see the "Indians" that own Foxwoods? When my tribe The MHA Nation, went to meet with them over photos from one of our pow wows being used without permission to promote their pow wow, our representatives thought they were meeting with "attorneys" due to the individuals being Black; turns out these were tribal members. And some large prominent Indian casinos are very corrupt, maybe not with organized crime, but tribaly corrupt, which is far worse when our own people allow this to occur.