Tribal Sovereignty as a National Priority

From self-government to self-determination, the promise and perils of federal policy for Native nations.

BY REBECCA TSOSIE

Deb Haaland’s confirmation as President Biden’s secretary of the interior is historic in many ways. As the first Native American secretary of the interior, she will have the opportunity to reshape the department that manages most of the land within the ancestral territories of the 574 federally recognized Indian nations within the United States. As secretary of the interior, Haaland has the unique capacity to reconcile the disparate strands of federal policy to highlight the human right of Native nations to exercise self-determination within their traditional territories.

Within the U.S., and globally, Indigenous peoples represent land-based communities that maintain an intergenerational presence on their ancestral territories. This relationship between people and place has a central role in defining each group’s cultural identity and serves as the foundation for a set of values that long enabled the intergenerational sustainability of Indigenous communities. These longstanding relationships have been disrupted by European settlement and colonization of Indigenous territories. Today, the United Nations Declaration on the Rights of Indigenous Peoples, adopted by majority consensus of the U.N. General Assembly in 2007, calls upon global nations to reconcile the historic (and often continuing) harms to Native peoples as they develop their national policies and manage natural resources within their boundaries. For Indigenous peoples, the human right to “self-determination” requires national governments to redress past wrongs and engage in respectful consultation with Native nations to create more fair and equitable contemporary policies.

JUSTIN CLIFTON

The U.S. Department of the Interior was established on March 3, 1849 with the comprehensive mission to manage the country’s internal affairs, including its “public lands.” Interior also houses the Bureau of Indian Affairs, which was moved from the Department of War in 1849. At that time, Native people were not citizens of the United States, nor did they become citizens by virtue of the 14th Amendment, as did African Americans. For most Native Americans, citizenship occurred in 1924, when Congress enacted the Indian Citizenship Act. In the 19th century, Native people had a primary allegiance to their tribal nations, which possessed an independent political sovereignty that predated the United States and was the basis for the treaties that many Native nations had with Great Britain, and, subsequently, with the United States. Native Americans also had a secondary political identity as “wards” of the United States government, and the Bureau of Indian Affairs discharged the duties of a “trustee.” 

In their capacity as “wards,” Native people lacked the basic civil and constitutional rights that were available to U.S. citizens. Throughout the 19th century, the United States appropriated the treaty-guaranteed lands of Native nations for its own use as the “public lands.” According to the Supreme Court’s 1903 decision in Lonewolf vs. Hitchcock, the U.S. had full authority to take tribal lands even if this abrogated an express Indian treaty right, because treaty abrogation was a “political question” that the Court could not review. The federal “trustee” also appropriated Indian children from their families by force, sending them to distant boarding schools, where they were forbidden to speak their Native languages. Indian parents had no recognized substantive due process right to determine where and how their children would be educated. 

The United States Indian Industrial School. WIKIMEDIA COMMONS

The federal “civilization campaign” also justified the infamous 19th-century “Code of Indian Offenses,” which criminalized the exercise of Native religious practices and enabled federal agents to seize sacred objects used in Native ceremonial practices. Many of those items still resided in federal agency and museum collections as of 1990, along with over 200,000 sets of Native American human remains that had been “collected” as “specimens” in a set of dehumanizing 19th-century federal policies. In 1990, after a series of disturbing congressional hearings, Congress passed the Native American Graves Protection and Repatriation Act to facilitate the return of Native human remains and cultural objects to the culturally affiliated tribal governments. 

In 1970, federal policy shifted from a paternalistic view of tribal self-government to a more robust recognition of tribal “self-determination.” The federal government is still the trustee, but the sovereignty of Indian nations now has a defined character under federal law and policy. Each federal administration, however, has latitude to foster a substantive vision of tribal sovereignty or to offer more symbolic recognition, largely served by a procedural version of “consultation” that allows federal land managers to control lands and resources in a way that benefits other values, such as recreational or extractive uses. The last four years, for example, witnessed an attempt by federal policymakers to “downsize” national monuments and “upscale” development of oil and gas on federal public lands. All too often, tribal consultation was purely a symbolic gesture.

TIM PETERSON

President Biden has promised to strengthen the nation-to-nation relationship between federally recognized tribal governments and the United States, promoting robust consultation on federal actions that would impact tribal interests. President Biden has also promised to strengthen tribal self-government and restore tribal lands, as well as safeguard the natural and cultural resources of Native nations. 

Currently, tribal governments maintain beneficial ownership of approximately 56 million acres of land, which is held by the United States “in trust” for the Native nations. This is a fraction of the ancestral territories of Native nations and there are many cultural sites of great significance on federal public lands. In many cases, tribal trust lands are adjacent to federal public lands, and the contiguous forests, common watersheds, and associated cultural sites require collaborative management between tribal governments and federal agencies. Bears Ears National Monument in southern Utah is one of those sites, and then-President Barack Obama’s 2016 proclamation adopted a notable approach to collaborative management with the establishment of an intertribal commission that would participate with the designated federal agency representatives to formulate the applicable management policies.

In an era of climate change, federal policymakers could benefit from collaborative management with Native nations, including recognition that Indigenous knowledge-holders often maintain significant expertise about the health of the land, water, and environment. This knowledge may be the key to human survival in the Southwest, where drought conditions are intensifying. Today, Native peoples in the region are on the front lines of the climate crisis and the intersectional challenges associated with poverty, health vulnerability, and environmental contamination from the development of fossil fuel and uranium resources on tribal lands and contiguous public lands.

In the Four Corners region, the Navajo Nation and Hopi Tribe share a common interest in sustainability, given the significant degradation of land and water caused by many decades of coal mining on their reservation lands, as well as the depletion and contamination of groundwater in the underlying aquifer. These two Indigenous nations have distinctive cultures, languages, and histories, and yet both share a central belief about the importance of land and water to the survival of their people. Both cultures recognize the sacred nature of water, and the need to protect the integrity of the groundwater, springs, and rivers that allow life to flourish in an arid climate.

Today, the Navajo and Hopi nations are among those that seek to block a Phoenix-based private corporation from building four dams on and above a tributary to the Little Colorado River, which would pump groundwater to fill the hydropower project’s reservoirs. The stated goal of the “Big Canyon Pumped Hydro Storage Project” is to store “surplus electricity” and support “electric grid reliability,” ultimately allowing storage of 3,600 megawatts of electricity. This is deemed important for “industrial users” of electricity in the Southwest, given the recent closure of the Navajo Generating Station, which was the West’s largest power plant before its closure in 2019. Under this plan, which is awaiting preliminary permit approval from the Federal Energy Regulatory Commission (FERC), groundwater in the area would be used instrumentally to service the energy needs of Western cities, just as Navajo and Hopi lands were used for coal mining.

Little Colorado River. ADAM HAYDOCK

The environmental and cultural harms of the dam project would be significant. The project would flood several miles of canyons on the Navajo Nation, which have longstanding cultural and historical value, and would submerge highly sacred places that feature in the origin stories and ceremonial traditions of several tribal nations. The U.S. Department of the Interior has joined tribal governments in opposing the plan, acknowledging that the dam project would adversely affect at least 10 federally recognized tribal governments with its substantial impacts on the land, water, and cultural resources of the area.

What about tribal sovereignty? The dam project would be located on the Navajo Reservation, so the political sovereignty of the Navajo Nation is clearly implicated. Under the Federal Power Act, FERC has the power to license private hydro dams on reservation lands. But this must be consistent with the federal government's trust obligation to avoid undue harm to tribal lands and resources. The project would call for scrutiny under all of the environmental and cultural resources statutes, and the Department of the Interior is required to consult with tribes and issue conditions to mitigate harms. If it does not, it could be liable for damages for breach of trust. The Navajo Nation sought to intervene in the FERC process, asserting that tribal consultation is needed prior to issuance of the permit. However, despite opposition from the Navajo Nation and other tribes, FERC decided to issue preliminary permits for two previously proposed hydropower projects along the Little Colorado River anyway, apparently accepting the developers’ argument that the projects would provide revenue to the Navajo Nation, and punting tribal consultation until the later licensing stage. We’re likely to see the same thing happen with the Big Canyon proposal.

These dam projects would also forever change the character of the confluence of the Little Colorado River and the Colorado River. This confluence site is widely regarded as sacred by all of the tribal nations that have cultural associations with this region, including the Navajo Nation, Hopi Tribe, Havasupai Tribe, Hualapai Tribe, and the Zuni Pueblo. These Indigenous nations continue to exert their “cultural sovereignty” to protect their ancestral sites and the longstanding narratives that counsel each nation to safeguard the land and water for future generations. The act of pumping pristine groundwater to serve the hydro project’s reservoirs is a further act of desecration and one that would destroy the precious springs that nurture the Hopi people in their centuries-long practice of dry farming. Hopi farmers possess the knowledge to grow corn in a natural environment that would otherwise require the use of irrigation systems.

Former Hopi tribal chairman and former Grand Canyon Trust board member, Vernon Masayesva, now directs the Black Mesa Trust, a nonprofit entity organized to protect tribal water. Masayesva says that, within the Hopi worldview, “all waters — rivers, groundwaters, glaciers…are interconnected, because the Earth is like a human body and we survive with all the hundreds of bloodlines circulating through all of our body.” Under this view, the federal government and its private corporate beneficiaries have an obligation to restore the lands and waters of the area that have been jeopardized by decades of harmful federal policies. The “Western mind” sees water as a “commodity,” says Masayesva, whereas “the Hopi culture and religion is inseparably linked to water.”

After centuries of exploitive practices and policies, what will it take to heal the land, and ourselves? We must imagine a better future in order to realize that future. In the process, we must commit to recognize the cultural and political sovereignty of Native nations as they work to restore, preserve, and protect the land, forests, and waters within their traditional territories. This is a new era of federal policy and the leadership of tribal members at the federal executive, legislative, and judicial levels will be important to the future of this country and its diverse constituent communities.

Rebecca Tsosie is a board member of the Grand Canyon Trust, and a regents professor of law at the University of Arizona.

EDITOR'S NOTE: The views expressed by Advocate contributors are solely their own and do not necessarily represent the views of the Grand Canyon Trust.