The Indigenous World 2022: United States of America
The number of Indigenous people in the United States of America is estimated at between 4 and 7 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 being American Indian or Alaska Native is conferred on members of federally-recognised tribes. Five hundred and seventy-four Native American tribal entities were recognised as American Indian or Alaska Native tribes by the United States in January 2021,2 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 authority 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 born within the territory claimed by the United States are American citizens, they are also citizens of their own nations.
2021 marked the first year of the Biden administration. President Joe Biden (Democrat (D)) and Secretary of the Interior Deb Haaland (D; Laguna Pueblo) have tried to improve relations with Native nations. Biden reinstated the White House Council on Native American Affairs and the White House Tribal Nations Summit in November, where he announced several initiatives and released a “progress report”.3 He also issued a memorandum to strengthen consultation between federal agencies and tribal nations.4 Seventeen federal agencies signed a memorandum of understanding (MOU) to protect tribal treaty rights,5 five agencies signed a MOU to better protect sacred sites,6 and the boundaries of the Bears Ears and Grand Staircase-Escalante National Monuments were restored (see The Indigenous World 2018 and 2020). The state of Utah is planning to appeal this decision before the Supreme Court.
It has long been clear that Native women in the U.S. are exposed to increased violence (see The Indigenous World 2012, 2013, 2014, 2015, and 2020). Reinvigorating previously underfunded and somewhat disjointed attempts to bring a solution to this violence, Secretary of the Interior Haaland announced a new Missing and Murdered Unit within the Bureau of Indian Affairs’ (BIA) Office of Justice Services (BIA-OJS) in April.7 Haaland and Attorney General Garland also announced a new commission to study the issue and make recommendations on how to address it, including tribal, state, and federal representatives. The Government Accountability Office (GAO) released a report in October.8 It found that the number of missing or murdered Indigenous women was not definitely known because while there are four national databases each collecting some relevant data, there is no comprehensive database. The GAO also points out that many of the initiatives and laws in existence have not been implemented and that, from a tribal perspective, the federal agencies often appear to be underfunded, disinterested and uncommunicative. In November, President Biden issued an Executive Order for federal agencies to collaborate with tribal communities and boost their law enforcement capacities. These are all valid attempts; they are not new, however. Whether a new commission with another plan can bring about a solution is questionable without adequate funding and political and legislative support for sovereign nations. Several states have also formed their own task forces. Based on a December 2020 report from its own state-level task force on missing and murdered Native women,9 Minnesota created a state Office of Missing and Murdered Indigenous Relatives; Utah and New Mexico, among others, are also taking a deeper look at the disproportionate violence against Native women. Minnesota used its work for Native women to launch a commission on violence against Black women in November.
Child Welfare Act
The U.S. Fifth Circuit Court of Appeals issued a ruling in the long-running Brackeen case in April. The case, now Brackeen v Haaland, asks whether the Indian Child Welfare Act (ICWA) is unconstitutional (see The Indigenous World 2016, 2019, and 2020). ICWA governs adoptive processes if they involve children that are eligible to be enrolled in tribes. The ruling in April10 holds that ICWA is constitutional. However, it leaves standing a lower court ruling that ICWA’s preference for Native adoptive parents or Native foster homes goes against equal protection laws. These provisions do, nonetheless, form the core and purpose of ICWA. It has been long-standing practice that these clauses do not apply to American Indian / Alaska Native groups because they are sovereign nations. Being Native is a legal, not an ethnic or racial classification. The case has been brought to the Supreme Court but the Court has yet to decide whether it will hear it.
The Biden administration has had an impact on several natural resource projects favored by the Trump administration and opposed by tribes.
Almost immediately after being inaugurated, President Biden placed a moratorium on oil and gas activities in the Arctic National Wildlife Refuge (ANWR). In June, he froze all leasing in the ANWR until a new environmental impact study can be finished. These actions at least temporarily undo the hasty sale of oil leases in the ANWR by the Trump administration two weeks before Biden took office (see The Indigenous World 2021). Attempts to halt the activity permanently by law have so far not been successful.
On his first day in office, Biden also revoked the permit for the Keystone XL pipeline (see The Indigenous World 2021). In February, a largely symbolic attempt to write the pipeline into the federal budget ultimately failed in the Senate. In June, TC Energy, the company behind the pipeline, officially ended the project. However, in November, the company filed for US$15 billion in damages from the federal government.
Another large pipeline project, the Dakota Access Pipeline (DAPL) was allowed to continue to operate in May despite the fact that it does so without a valid permit (see The Indigenous World 2021). The permit was revoked and a new environmental study ordered. In September, the pipeline company asked the Supreme Court to void the new requirement. Both the Standing Rock Sioux Tribe and the Army Corps of Engineers, which is in the midst of conducting the new review, asked the Supreme Court to not revoke the requirement in December. The new study should be done in February 2022.
In Minnesota, the Line 3 pipeline (see The Indigenous World 2021) opened operations in October after the Biden administration argued for the validity of its permits. Over 600 people were arrested during protests against the pipeline. In March, a request for early warning measures and urgent action procedures was submitted to the United Nations Committee on the Elimination of Racial Discrimination (CERD) citing concerns over the rights to free and informed consent, health, culture, and security. CERD asked the United States to respond to the allegations of rights abuses in August.
In Arizona, the Tonto National Forest released the Final Environmental Impact Statement (EIS) on the planned Resolution Copper Project and Land Exchange in January, under the Trump administration. With the EIS, the government is obligated by law to exchange lands currently in the National Forest for others, enabling Rio Tinto to dig a mine under sites of cultural importance to the Apache (see The Indigenous World 2012, 2014, and 2021). In March, the U.S. Department of Agriculture directed the National Forest Service to rescind the EIS and conduct a new review. This put the land transfer, and therefore the mine project, on hold. However, if the law is not changed, the completion of the next EIS will set the land transfer and the mine project in motion once again.
In November, the Fort Belknap Indian Community and the Confederated Salish and Kootenai Tribes in Montana filed a lawsuit in coalition with environmental organisations to prevent Hecla Mining Company from opening copper and silver mines until the company reimburses the state for the cleanup of acid and cyanide pollution that is affecting Fort Belknap's water. In July, a new Department of Environmental Quality director under Governor Greg Gianforte (Republican (R)) had dropped the state's efforts to seek reimbursement for more than 80 million dollars and cleared the way for the mines.
In August, the Eighth Circuit Court of Appeals ruled on Rosebud Sioux Tribe v United States. The tribe argued that the Treaty of Fort Laramie of 1868 imposed an obligation on the federal government to provide “competent, physician-led healthcare” to the Lakota.11 The court ruled in favor of the tribe and, in December, the Biden administration decided not to appeal this ruling further. This means that quality healthcare is confirmed as a treaty right for the Lakota. Healthcare on Lakota reservations has been a long-standing issue (see The Indigenous World 2010, 2011). Emergency room wait times on the Cheyenne River Sioux Reservation reached 36 hours this year. In the light of chronic underfunding of the Indian Health Service, whether this treaty right can be enforced is a different question.
In the second year of the COVID-19 pandemic, the impact on Native communities was exacerbated by an increase in drug addiction and overdoses that spread from mostly White communities to others. COVID-19 itself continued to impact rural Native communities disproportionately, and new data analyses showed its impact in 2020. For example, Montana saw a 36% increase in deaths of Native people, and 25% of all deaths were attributed to COVID-19. In Montana, the mortality rate from the virus was four times higher for Native people than in the non-Native population while, nationwide, that disparity was about three and a half times higher.12 The higher mortality rate is paradoxical at first glance, as Native people also show the highest vaccination rate of any population in the United States.13 While the Indian Health Service continues to be underfunded in terms of clinics, hospitals and personnel, which leads to a high number of pre-existing conditions and a high mortality rate, the federal government and tribes were able to very quickly bring vaccinations to people.
In June, the Supreme Court ruled unanimously on United States v Cooley, a case with wide implications for tribal jurisdiction and sovereignty.14 Jurisdiction on American Indian reservations is notoriously complex. This case stems back to 2016 when a tribal police office of the Crow Nation in Montana stopped a driver on a U.S. highway going through the Crow reservation. He noticed that the man was on drugs, had a young child in the back of the car, and had two semiautomatic rifles on the front seat. The driver was taken to the Crow Police Department, and the tribal officer searched the car and confiscated drugs and drug paraphernalia. On appealing the federal drug and gun conviction, the District Court and the Ninth Circuit Court of Appeals argued that the drug evidence was inadmissible to the case because the tribal police officer had no jurisdiction in a case involving a non-Native person on a public right-of-way and could not investigate. Such limitations on tribal law enforcement have been assumed for a long time, in part contributing to the high rates of violence against women.
The anonymous decision by the Supreme Court to overturn the appeals court decision sends a strong signal. The Ninth Circuit decided that tribal police officers have to determine first if a person is Native or non-Native, and could hold a non-Native person only if it was apparent that a crime had been committed. The Supreme Court held that this was not workable. It noted that the majority of people living within reservation boundaries are non-Native and that tribes have civil authority over non-Indians within reservation boundaries if their actions threaten or directly affect tribal security, health or welfare. The court thus decided that tribal law enforcement can stop and search non-Native drivers on public rights-of-way crossing reservations if there is a suspicion that state or federal laws have been broken, that they can conduct a search, and that they can detain the person until a non-tribal police officer arrives. Together with the Tribal Law and Order Act (see The Indigenous World 2011) and the still not reauthorised Violence Against Women Act (see Indigenous World 2014, 2015, and 2020), which allowed tribal courts to exercise jurisdiction over non-Native people in specific, limited circumstances, the decision means a small but extremely important expansion of tribal jurisdiction and a validation of tribal sovereignty.
Rights of nature
Another case explores connected issues. Over the summer, the White Earth Nation sued the state of Minnesota through a tribal court in a case related to the Line 3 pipeline. White Earth has codified the rights of wild rice in its tribal laws, and the pipeline, off-reservation yet on treaty territory, crosses wild rice beds. Minnesota appealed to the federal court but, in September, the U.S. District Court decided that it could not intervene in the tribal lawsuit as the tribe holds sovereign immunity. Minnesota filed appeals to the Eighth Circuit Court of Appeals and to the White Earth Tribal Appeals Court. The fact that a federal court is allowing a tribal court to hear a case against a state over off-reservation matters creates a new precedent; the assumption so far has been that tribal courts only have jurisdiction over non-tribal entities if they engage in activities on tribal lands. This case is all the more important because, in the United States, natural entities have not been seen as legal persons. Depending on the outcome of this case, rights for natural entities could be introduced to U.S. laws through tribal laws and tribal jurisdiction. Even if this development were restricted to treaty territories, it would carry significant consequences.
This article is part of the 36th 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 2022 in full here
Notes and references
1 Estimates vary depending on definitions. The official Census uses self-identification. It provides 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 enrollment in federally-recognised tribes and/or based on eligibility for their services. Current numbers are based on 2019 estimates by the U.S. Census Bureau. “Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for the United States: April 1, 2010 to July 1, 2019.” https://www2.census.gov/programs-surveys/popest/tables/2010-2019/national/asrh/nc-est2019-sr11h.xlsx
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 86 (18): 7554-7558. January 29, 2021. Notices https://www.govinfo.gov/content/pkg/FR-2021-01-29/pdf/2021-01606.pdf. For corrections to three names on the list. Federal Register 86 (67): 18552-18553. April 9, 2021. Notices. https://www.govinfo.gov/content/pkg/FR-2021-04-09/pdf/2021-06723.pdf
3 The White House Washington. “The White House Tribal Nations Summit Progress Report. November 15-16, 2021. Prepared by the Domestic Policy Council. https://www.whitehouse.gov/wp-content/uploads/2021/11/WH-Tribal-Nations-Summit-Progress-Report.pdf
4 The White House. “Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships. January 26, 2021. Presidential Actions. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/
5 U.S. Department of the Interior. “Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights. 2021. https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf
6 U.S. Department of the Interior. “Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Indigenous Sacred Sites. 2021. https://www.doi.gov/sites/doi.gov/files/mou-interagency-coordination-and-collaboration-for-the-protection-of-indigenous-sacred-sites-11-16-2021.pdf
7 The White House. Executive Order on Improving Public Safety and Criminal Justice for Native Americans and Addressing the Crisis of Missing or Murdered Indigenous People. November 15, 2021. Presidential Actions. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/11/15/executive-order-on-improving-public-safety-and-criminal-justice-for-native-americans-and-addressing-the-crisis-of-missing-or-murdered-indigenous-people/
8 U.S. Government Accountability Office (GAO). “Missing or Murdered Indigenous Women: New Efforts Are Underway but Opportunities Exist to Improve the Federal Response.” October 28, 2021. https://www.gao.gov/products/gao-22-104045
9 Rogers, Nicole Martin and Virginia Pendleton. “Missing and Murdered Indigenous Women Task Force. A report to the Minnesota Legislature.” Wilder Research, December 2020. https://dps.mn.gov/divisions/ojp/Documents/missing-murdered-indigenous-women-task-force-report.pdf
10 WordPress.com “Case: 18-11479 Document: 00515810731. Filed: 04/06/2021. United States Court of Appeals for the Fifth Circuit.” Turtle Talk, April 6, 2021. https://turtletalk.files.wordpress.com/2021/04/decision.pdf
11 “United States Court of Appeals For the Eight Circuit. No. 20-2062. Rosebud Sioux Tribe, a federally recognized Indian tribe, and its individual members.” August 25, 2021. https://ecf.ca8.uscourts.gov/opndir/21/08/202062P.pdf
12 Montana Office of Epidemiology and Scientific Support. Covid-19 Associated Deaths among Montana Residents, Provisional Data: January 2020—September 2021. https://dphhs.mt.gov/assets/publichealth/CDEpi/DiseasesAtoZ/2019-nCoV/Reports/COVIDMORTALITY2020_2021_FINAL_ADA1.pdf
13 Foxworth, Raymond, Ph.D., Nicole Redvers, N.D., M.P.H., Marcos A. Moreno, M.D., Victor A. Lopez-Carmen, M.P.H., Gabriel R. Sanchez, Ph.D., and James M. Shultz, Ph.D. “Covid-19 Vaccination in American Indians and Alaska Natives — Lessons from Effective Community Responses.” New England Journal of Medicine, (385): 2403-2406. December 23, 2021. https://www.nejm.org/doi/full/10.1056/NEJMp2113296
14 “Supreme Court of the United States. Syllabus. United States v Cooley. Certiorari to the United States Court of Appeals for the Ninth Circuit. No. 19–1414. Argued March 23, 2021—Decided June 1, 2021. https://www.supremecourt.gov/opinions/20pdf/19-1414_8m58.pdf