Two North Dakota law makers want Congress to give states more power over tribes, according to an article in Native News Online.Net. It’s a move that looks suspicious after recent clashes over the Dakota Access Pipeline (DAPL). This state power grab has been tried before, and it remains both a really bad idea and a violation of the Constitution.
Introduced Thursday, the resolution starts out:
A concurrent resolution urging Congress to modify the Indian reservation system by vesting the states with the ability to engage in relations with Native American tribes and with the responsibility of developing plans to improve the failed Indian reservation system advance and elevate the quality of life on Indian reservations, promote and increase literacy on Indian reservations, and help Indian reservations to achieve economic stability and independence.
Now to be clear, this is just two legislators, we will see where this goes. Three quick points
First, the U.S. Constitution gives the federal government — not states — responsibility for relationships with Native nations. Article I, Section 8 of the Constitution says the federal government has the power:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Wikipedia’s entry on tribal sovereignty says:
States have tried to extend their power over the tribes in many … instances, but federal government ruling has continuously ruled in favor of tribal sovereignty. A seminal court case was Worcester v. Georgia. Chief Justice Marshall found that “England had treated the tribes as sovereign and negotiated treaties of alliance with them. The United States followed suit, thus continuing the practice of recognizing tribal sovereignty. When the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty.”
Second: The resolution language says: “the current Indian reservation system has become flawed and obsolete.”So how do the legislators propose to fix it? The resolution says that the:
Legislative Assembly urges Congress to modify the Indian reservation system by vesting the states with the ability to engage in relations with Native American tribes and with the responsibility of developing plansto improve the failed Indian reservation system …
Let’s dissect that statement. The request to vest “states with the ability to engage in relations with Native Americans …” seems innocuous and even silly. The state doesn’t need federal approval to engage in relations with Native Americans. Why not just pick up the phone and call?
The statement has more control issues at its roots. Cut the fluffy language about “engage in relationships” from the resolution and the intention gets much clearer. It would read the: “Legislative Assembly urges Congress to modify the Indian reservation system by vesting the states … with the responsibility of developing plans to improve the failed Indian reservation system.”
If Congress acted on this request, it would give states new and unconstitutional power.
Third: What has North Dakota done to show it has any concern at all with the quality of life on reservations and built some trust?
When indigenous water protectors and their allies gathered near Cannonball, North Dakota to oppose the Dakota Access Pipeline, the state mounted an old-school government response; it wasn’t “engage in relationships: it was “Beat them into submission.” A highly militarized police force responded out of proportion to the threat. It used water cannons in freezing temperatures, rubber bullets, and concussion grenades. At night, it used helicopters and lights to disrupt peoples’ sleep. These approaches resulted in bodily and psychological harm, not a sincere expression of concern about the community’s well being.
Question: Did the resolution’s authors, who seem interested (on paper) “to engage in relations with Native Americans” even bother to ask North Dakota’s native communities if they would support such a resolution? If not, why not?
Reminder: Still Time to Comment on the DAPL Environmental Impact Statement
An article in Indian Country Today offers a reminder that despite President Trump’s Executive Memorandum on DAPL, the U.S. Army Corps of Engineers is still proceeding with the Environmental Impact Statement (EIS).
[The] time for public input is now. Until February 20, members of the public can submit comments about the Dakota Access Pipeline (DAPL) and give the Army Corps something to chew on that will not only help with the study, but also will take time. [Standing Rock Tribal Chair David] Archambault has put out a call for people to comment, and the tribe has set up a page to make it easy.
For those looking to send or hand-deliver snail mail, or to e-mail directly, the Army Corps has detailed instructions on the Federal Register page where the EIS notice is posted.