A Recent Trump Administration Ruling Attacked the Heart of Tribal Sovereignty

Trump has portrait of “Indian killer” Andrew Jackson looking over his daily moves in Oval Office.

Guest Commentary

Published June 4, 2018

The Trump administration’s Health and Human Services Department (HHS) caused a stir in Indian Country and Capitol Hill last month by announcing that Native Americans would not be exempt from state-mandated Medicaid work requirements. While the decision could have far-reaching consequences for the funding of Indian Health Services and the health outcomes of Native people, the cause for alarm goes beyond access to resources. Reportedly, HHS’s legal basis for their decision is that Native Americans are a race, not a political group, and therefore cannot receive special raced-based treatment. The argument, as it stands, attacks the heart of tribal sovereignty.

“If you wanted to unite Indian Country, this would be the way to do it,” said Republican Congressman Tom Cole of Oklahoma and citizen of the Chickasaw Nation. Cole is working in the House to see the decision reversed and believes that Congress and “200 years of constitutional interpretation from the courts” is on his side. A rebuttal letter to HHS has already been signed by over 60 bi-partisan representatives and Cole, who chairs the House Appropriations Subcommittee for Health and Human Services, says disapproval of the HHS policy will be reflected in their budget coming out later this month.

The issue for Cole isn’t about work requirements or Medicaid reform, it’s about sovereignty. “A lot of Republicans and Democrats see this for what it really is. Whether out of ignorance of the law or deliberate design, it is an assault on tribal sovereignty.”

While the HHS decision has certainly set off alarm bells, how alarmed should Indian Country really be? What are the real implications of Native Americans being legally categorized as a race and not a political group?

Sarah Deer is a legal scholar and citizen of Muscogee (Creek) Nation. When I reached her by phone, she told me that the stakes are high. “Taken to its logical extreme [this argument] could disrupt the whole fabric of the relationship between the federal government and tribes” and ultimately “could extinguish tribal nations.” If, for example, HHS’s legal argument was held up by the courts “all of Title 25, the US Code on Indian law, could be declared unconstitutional.”

Rebecca Nagle

The sovereignty of tribal nations pre-dates the creation of the United States. According to the Constitution, treaties are the supreme law of the land. Often in treaties, Native Nations traded land in exchange for food, education and healthcare for their citizens. The United States has ratified this Nation to Nation relationship in the over 370 treaties it has signed with tribes. States do not have the authority to pass policies that violate these treaties, such as denying Native Americans access to healthcare because they don’t have a job.

Yet, HHS is claiming that granting Native Americans treaty-based healthcare access raises “civil rights concerns”. The Equal Protection Clause of the 14th Amendment states that no citizen shall be denied “equal protection of the laws”. While the clause has been essential to civil rights victories like Brown v Board of Education, it has also been used to fight progressive measures like affirmative action in Fisher v University of Texas. When it comes to federal Indian law, the Equal Protection Clause has been twisted by anti-Indian groups to attack tribal sovereignty.

Today, the most prominent example comes from the Goldwater Institute, a conservative think tank based out of Arizona that is working to have the Indian Child Welfare Act (ICWA) declared unconstitutional. When ICWA was passed in 1978 to keep Native children with Native families, congress admitted that 25-35% of all Native children had been adopted out. But, according to Goldwater’s website, ICWA’s “denial of equal protection” is unfair to Native children and the Supreme Court should “agree that this codification of substandard treatment should not stand.”

The type of litigation that the Goldwater Institute has mounted is not cheap. Unlike some anti-sovereignty groups that exist on the political fringe, The Goldwater Institute is funded by Trump’s largest donor, the Mercer family, and other powerful political influencers like the Koch brothers and the Devos family. Goldwater declined a request for comment.

The HHS ruling is not the first time Native advocates have criticized the Trump administration’s position on tribal sovereignty. In late 2016, Trump’s transition team on Native Americans caused a stir when they proposed privatizing remaining tribal lands in order to ease the path for oil and other resource extraction. American Indian reservations comprise of only 2% of all land in the United States but hold an estimated 20% of oil and gas reserves, 50% of uranium reserves and 30% of all coal West of the Mississippi. In 2009, The Council of Energy Resource Tribes, estimated energy resources on tribal land were worth about $1.5 trillion.

Ross Swimmer, co-chair of the Trump transition team, is partner at an investment fund with heavy ties to oil, including the company that built the controversial Dakota Access Pipeline. Koch Industries (owned by the Koch brothers who have funneled money to the Goldwater Institute through Donor’s Trust) was the fourth largest lobbyist for oil in 2012 and owns four oil refineries, six ethanol plants, and 4,000 miles of pipeline. If the legal argument that “special protections” for Native Americans are unconstitutional was upheld by the courts, tribal lands could lose their protected status, making their vast energy reserves open for business.

“I do think we can call this neo-Termination,” says Deer. “They seem to be telling us we shouldn’t have special rights, we should just be melted into the American pot. We can still have parades, still celebrate being Native, but no longer have tribes.”

In Indian Country, there is a vast difference of opinion on issues like resource extraction, Medicaid reform, and the Trump administration itself. But, the one issue almost all tribal leaders agree on is protecting tribal sovereignty.

On this issue, Congressman Cole is confident the law is on Indian Country’s side. He has asked HHS to send over the civil rights statutes they claim special exemptions for Native Americans would violate. “We want to see what their legal position is. I think we’ll find it’s tissue thin,” He goes on to say, “I am confident in the law here. We can defend this in Congress and in the courts.”

Rebecca Nagle is a citizen of Cherokee Nation and a writer and organizer living in Tahlequah, OK. 

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