The Indigenous World 2021: The United States of America
The number of Indigenous people in the United States of America is estimated at between 2.5 and 6 million,1 of which around 20% live in American Indian areas or Alaska Native villages. Indigenous Peoples in the United States are more commonly referred to as Native groups. The state with the largest Native population is California; the place with the largest Native population is New York City.
With some exceptions, official status of American Indian or Alaska Native is conferred on members of federally-recognised tribes. Five hundred and seventy-four (574) Native American tribal entities were recognised as American Indian or Alaska Native tribes by the United States in January 2020,2 and most of these have recognised national homelands. Federally-recognised Native nations are inherently sovereign nations but their sovereignty is legally curbed by being unilaterally defined as wards of the federal government. The federal government mandates tribal consultation for many issues but has plenary power over Indigenous nations. Many Native nations have specific treaty rights and the federal government has assumed responsibility for Native peoples through its guardianship, although those responsibilities are often underfunded.
There are also state-recognised and non-recognised American Indian tribes but these are not officially Native nations in the eyes of the federal government. While socio-economic indicators vary widely across different regions, the poverty rate for those who identify as American Indian or Alaska Native is around 25%.
The United States announced in 2010 that it would support the UNDRIP as moral guidance after voting against it in 2007. The United States has not ratified ILO Convention No. 169. While American Indians in the United States are generally American citizens, they are also citizens of their own nations.
As elsewhere, the COVID-19 virus impacted Indigenous Peoples with devastating consequences in the USA in 2020. However, other important developments also occurred. In November, the presidential elections brought a change from Donald Trump (Republican) to Joe Biden (Democrat), who will take office in January 2021. Biden has nominated his future cabinet, and Deb Haaland (Laguna Pueblo, D) has accepted her nomination to be Secretary of the Interior. She was one of the first two Native women elected to Congress in 2018 (see The Indigenous World 2019). Haaland will be the first Native person to be a cabinet secretary and will lead the department that oversees the Bureau of Indian Affairs. The Interior department also controls about a fifth of the USA's land base and the natural resources located on those lands. Haaland has proposed restoring protections over those lands eroded by the Trump administration, especially for Bears Ears and Grand Staircase-Escalante National Monuments (see The Indigenous World 2018 and 2020). In an interview with The Guardian, referring to the racial injustice protests gripping the USA in 2020, Haaland said, “So many Native Americans joined the Black Lives Matter protests because Indian Country3 recognised that we are allies in the fight for environmental justice, economic justice and racial justice … These communities on the frontline deserve to have the resources to be able to lift themselves up.”4
The novel coronavirus pandemic hit Native communities especially hard. Some reservations tried to protect themselves by controlling access. In South Dakota, the Cheyenne River Sioux Tribe and the Oglala Sioux Tribe put in place health checkpoints on the roads leading into the reservation in April. Because these roads included federal and state highways over which states maintain control, the governor of South Dakota, Kristi Noem (R), contacted the Department of the Interior, and the Bureau of Indian Affairs (BIA) asked the tribes to consult with the state. In May, Noem demanded the checkpoints be removed and threatened legal action. Amidst worsening COVID-19 conditions, the Rosebud Sioux Tribe then also installed checkpoints. After the chairman of the Cheyenne River Sioux Tribe, Harold Frazier, refused to remove the checkpoints, Noem appealed to the Trump administration. The administration then threatened to end the tribe's law enforcement agreement under Public Law 93-638 as well as to withhold further payments of COVID-19 relief funds to the tribe. Cheyenne River then sued the federal government.5 The checkpoints were still up in December.
Other tribes established checkpoints with much more help from state governments. In New Mexico, for example, the state government assisted Zuni Pueblo, Zia Pueblo and other nations in keeping visitors out of their communities. Acoma Pueblo, Picuris Pueblo and the Hopi reservation were among nations who closed access. The governor also completely closed down the city of Gallup, a hub for the nearby Navajo reservation.
The Navajo Nation has been one of the hardest hit communities in the United States. The nation was under a lockdown order from March to August and declared another lockdown with weekend curfews in November for the rest of the year. As in many other Native communities, health care resources were stretched to and beyond their limits. Intensive care beds, oxygen hook-ups and staff were all insufficient. In many Native communities, patients not suffering from COVID-19 that needed treatment were flown to other facilities. This meant that their families could not be near to them. The Indian Health Service (IHS) often had to make difficult decisions, and some of them were made without consulting with tribes. For example, in July the IHS closed emergency room and inpatient critical care services at its Acoma-Cañoncito-Laguna unit because the hospital could no longer be staffed due to a shortage of medical workers.
The mortality rate from COVID-19 among American Indian and Alaska Native persons was higher than among White Americans. A study using data from 14 states found the mortality rate to be 1.8 times higher. For people between 20 and 49 years of age, the mortality rate was some 10 times higher. Unfortunately, this is not surprising given the state of healthcare in Native communities. The authors concluded that,
Long-standing inequities in public funding; infrastructure; and access to health care, education, stable housing, healthy foods, and insurance coverage have contributed to health disparities (including higher prevalences of smoking, obesity, diabetes, and cardiovascular disease) that put Indigenous Peoples at higher risk for severe COVID-19–associated illness.6
Because COVID-19 predominantly affects older people, tribes have lost many elders during this pandemic. This is not only a huge personal loss for the families but also amounts to a loss of tradition and language, as elders are often the knowledge keepers and the last fluent speakers. It is difficult to estimate the impact these losses will have on language education and survival but, judging from anecdotal evidence, it could be catastrophic for many tribes.
In March, the federal government signed into law the Coronavirus Aid, Relief and Economic Security Act (CARES Act) providing USD 2 trillion to businesses, agencies, and organisations impacted by the pandemic. Of that money, USD 8 billion was reserved for Native tribes. Several tribes filed lawsuits protesting the eligibility of Alaska Native Corporations for that money. The 12 Alaska Native regional and 177 Alaska Native village corporations are for-profit shareholder corporations and separate entities from federally-recognised Native Alaska villages. The tribes, including several from Alaska, argued that the corporations are not tribal governments. In September, the United States Court of Appeals for the District of Columbia agreed with the tribes.7 The federal government and the Alaska Native Corporations filed an appeal to the Supreme Court. Meanwhile, the monies promised to tribes were only paid out after long delays in June and the sensitive data that tribes had to provide to apply for funds was leaked to outside parties almost immediately. The data contained information on territory, tribal enrolment, tribal employees and expenditure; Native nations have been extremely reluctant to share such data. Tribal bank accounts for fund deposits were also included.
Oil and minerals
The pandemic did not stop developments in other areas, especially natural resource extraction and transportation. The Keystone XL pipeline (see The Indigenous World 2019 and 2020) remained blocked after the Supreme Court in July upheld a May lower court ruling that invalidated the pipeline's permits for river crossings. The court agreed that the Army Corps of Engineers had violated its obligations under the Endangered Species Act when issuing the permits.8 In October, the same judge denied a request by the Rosebud Sioux Tribe and the Fort Belknap Indian Community in a separate lawsuit to temporarily halt construction of a 1.5-mile-long segment that crosses the U.S.-Canada border.
In March, federal judge James Boasberg decided that the U.S. Army Corps of Engineers had to complete a full environmental review on the Dakota Access pipeline's Missouri River crossing near the Standing Rock Sioux Reservation (see The Indigenous World 2017, 2018, 2019, and 2020).9 In July, the same judge ordered that the pipeline be shut down within 30 days.10 The ordered shutdown was rejected by the U.S. Court of Appeals in August, which, however, left the decision on the environmental review intact. This means that the Dakota Access pipeline is now operating without a valid permit.
In December, the Red Lake Band of Chippewa, the White Earth Band of Ojibwe, Honor the Earth, and the Sierra Club filed a lawsuit against the Army Corps of Engineers over river-crossing permits provided to Enbridge for the construction of Line 3. The oil pipeline across northern Minnesota would cross treaty territories and wild rice areas (see The Indigenous World 2019).
In Alaska, the Trump administration announced in August that it would open up the entire coastal plain of the Arctic National Wildlife Refuge (ANWR) for oil drilling (see The Indigenous World 2020). Following the election, the administration announced a January date for the lease sale, before president-elect Biden takes office. The Gwich'in Steering Committee asked a federal judge to block the sale. Two weeks after the initial announcement, the Trump administration reduced the sale by a third. On the other hand, the Environmental Protection Agency (EPA) denied a permit to the Pebble Mine on Bristol Bay in Alaska (see The Indigenous World 2014, 2015, 2018, 2019, and 2020).
In a last push, the administration is trying to provide approval to many extraction projects. The National Forest Service will publish an Environmental Impact Statement on the planned Resolution Copper mine in Arizona. This project will destroy much of Oak Flats, a holy place of immense significance to the San Carlos Apache (see The Indigenous World 2012 and 2014). Rio Tinto and BHP, the companies behind Resolution Copper, have worked intimately with the Trump administration. In a visit to the site in October, Commerce Secretary Ross said that the mine “was one of the major reasons why President Trump moved so aggressively to reduce the red tape involved in such projects”11 (see The Indigenous World 2018).
In November, the Environmental Protection Agency (EPA) gave final water permits for the Dewey-Burdock project in South Dakota. This project is an in-situ uranium mine where the uranium is dissolved from the ore underground using a leaching agent and then pumped to the surface. The mine would be located on grounds in the Black Hills, illegally taken from and sacred to the Lakota Nation, on the headwaters of the Cheyenne River. All Lakota tribes oppose the mine, as do the Northern Cheyenne.
The McGirt decision
In July, the Supreme Court decided McGirt v. Oklahoma (see The Indigenous World 2020) in favour of McGirt and the Muscogee (Creek) Nation. The lawsuit was brought by Jimcy McGirt, who had been convicted to life in prison by the state of Oklahoma for sex crimes against an underage child. McGirt asserted that since he and the victim were Native and the crime happened on Indian land, the state lacked jurisdiction; major crimes involving Native people in Indian Country fall under federal jurisdiction.
The question was whether or not the location of the crime was in Indian Country. Oklahoma asserted that the Creek Reservation had been disestablished. The Supreme Court, deciding for McGirt and the Muscogee, asserted that the Creek Reservation was still in existence. This decision followed established precedent (see The Indigenous World 2015 and 2016) but was widely noted, perhaps because its implied consequences affect a large area - at least the eastern half of Oklahoma. The Supreme Court has decided some recent cases against tribes based on contemporary political calculation rather than historical accuracy, noting that enough time passed establishes a precedent no longer correctable by law (see The Indigenous World 2006 and 2018). Justice Gorsuch, writing for the majority in McGirt, rejected this approach:
[M]any of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.12
The decision in McGirt v. Oklahoma means that the historical boundaries of the Muscogee (Creek) Nation are still intact and that the state of Oklahoma therefore has no jurisdiction over crimes involving Native people within the reservation boundaries. Because the Cherokee, Choctaw, Chickasaw and Seminole reservations, at the very least, were supposedly disestablished under the same circumstances, the decision will likely affect their reservations, too. While the decision in McGirt only looked at jurisdiction, the fact that the Muscogee (Creek) reservation is still in existence could also carry other consequences over regulations and taxation, although it will not change land ownership.
The Attorney General of Oklahoma, Mike Hunter, presented an Agreement in Principle with the leaders of the Muscogee, Choctaw, Cherokee, Chickasaw and Seminole Nations after the decision but the leaders of the Seminole and Muscogee Nation rejected that agreement within days. Hunter also cited the case of a non-Native man on Oklahoma death row for killing a Chickasaw woman and her two children, and said he thought everybody could agree that the man should be executed by the state. The man filed for appeal on the grounds that Oklahoma has no jurisdiction; Hunter is opposing this appeal, demonstrating that the understanding of federal and tribal jurisdiction over Indian Country will still need some time. In the meantime, a Latimer County judge already decided in November that the Choctaw reservation, too, was never disestablished. Jimcy McGirt was re-convicted under federal law.
In March, Secretary of the Interior David Bernhardt announced that the Mashpee Wampanoag reservation in Massachusetts would be disestablished (see The Indigenous World 2019). In June, a federal judge overturned that decision.13 The federal government is appealing the case. As Deb Haaland, the nominee for Secretary of the Interior, supported the Wampanoag tribe throughout their dispute with the Trump administration, this appeal will likely be dropped. In the meantime, a group calling themselves the Mattakeeset Massachusett tribe is challenging the lands on which the Mashpee Wampanaog have been trying to build a casino. The Mattakeeset are not federally- or state-recognised and re-formed as a group in 2014.
This article is part of the 35th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2021 in full here
Notes and references
1 Estimates vary depending on definitions. The official Census uses self-identification. It gives much smaller numbers for those who only identify as American Indian / Alaska Native than it does for those who identify as American Indian / Alaska Native and another population group. The Bureau of Indian Affairs, the Indian Health Service and other agencies of the federal government provide numbers based on enrolment in federally-recognised tribes and/or based on eligibility for their services.
2 Department of the Interior, Bureau of Indian Affairs. “Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs.” Federal Register 85 (20) 5462-5467. https://www.govinfo.gov/content/pkg/FR-2020-01-30/pdf/2020-01707.pdf
3 The term “Indian Country” means all lands in the United States over which tribes and the federal government share control (and most often jurisdiction). These include (according to federal law, 25 U.S.C. § 1151) lands within reservations under federal jurisdiction, “dependent Indian communities”, and all Indian allotments (i.e., Indian trust lands outside reservations).
4 Lakhani, Nina. “‘I'll be fierce for all of us’: Deb Haaland on climate, Native rights and Biden.” The Guardian, 27 December 2020. https://www.theguardian.com/environment/2020/dec/27/deb-haaland-interview-interior-secretary-native-americans
5 United States District Court for the District of Columbia. “Cheyenne River Sioux Tribe v. Donald J. Trump et al.” Case No. 1:20-cv-01709.
6 Arrazola, Jessica, et al. “COVID-19 Mortality Among American Indian and Alaska Native Persons — 14 States, January–June 2020.” Morbidity and Mortality Weekly Report, December 2020, 69 (49), 1853-1856.
7 United States Court of Appeals for the District of Columbia Circuit. “Confederated Tribes of the Chehalis Reservation, et al. v. Steven Mnuchin et al.” No. 20-5204, Consolidated with 20-5205, 20-5209. Decided 25 September 2020.
8 United States District Court for the District of Montana, Great Falls Division. “Northern Plains Resource Council et al. v. Army Corps of Engineers et al.” CV-19-44-GF-BMM.
9 United States District Court for the District of Columbia. “Standing Rock Sioux Tribe et al. v. U.S. Army Corps of Engineers et al.” Civil Action No. 16-1534 (JEB), 25 March 2020.
10 United States District Court for the District of Columbia. “Standing Rock Sioux Tribe et al. v. U.S. Army Corps of Engineers et al.” Civil Action No. 16-1534 (JEB), 6 July 2020.
11 “Remarks by Commerce Secretary Wilbur L. Ross at the Rio Tinto Resolution Copper Site Visit Roundtable in Phoenix, Arizona.” U.S Department of Commerce. 9 October 2020. https://www.commerce.gov/news/speeches/2020/10/remarks-commerce-secretary-wilbur-l-ross-rio-tinto-resolution-copper-site
12 Supreme Court of the United States. “McGirt v. Oklahoma.” No. 18-9526, 591 U.S.9 July 2020.
13 United States District Court for the District of Columbia. “Mashpee Wampanoag Tribe v. David Bernhardt et al.” Civil Action No. 18-2242 (PLF), 5 June 2020.