The Indigenous World 2023: United States of America
The number of Indigenous people in the United States of America is estimated at between 3.1 and 8.7 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, the official status of being American Indian or Alaska Native is conferred on members of federally-recognized tribes. Five hundred and seventy-four Native American tribal entities were recognized as American Indian or Alaska Native tribes by the United States in January 2021,2 and most of these have recognized national homelands. Federally-recognized 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-recognized and non-recognized 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 18%.
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.
2022 was marked by a most remarkable Supreme Court decision that overthrew standing policy and precedent going back 200 years and established new uncertainty over tribal sovereignty and jurisdiction. In Oklahoma v. Castro-Huerta,3 the court decided not only to ignore its own precedents but to rewrite history. “Indian country is part of the State, not separate from the State,” reads the opinion, reversing, without mention, the 1832 decision in Worcester v. Georgia (“The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force”). It had been established practice that crimes involving Native people on Native lands fall under federal and tribal, but not state, jurisdiction unless Congress explicitly decided otherwise. “It was taken as given, and rightly so, that without further legislation, states were precluded from exercising jurisdiction over offenses by non-Indians against Indians.”4
The fact that the Castro-Huerta decision was political is evident from the reasoning behind the decision itself. The Castro-Huerta decision followed the McGirt decision,5 which decided that the eastern half of Oklahoma was still reservation territory. Oklahoma courts thus recognized that the state had no jurisdiction over crimes committed by or against Native people. The state of Oklahoma then filed more than 30 petitions to the Supreme Court to overturn McGirt, Castro-Huerta being one of them. In its decision, the Supreme Court explains that: “The classification of eastern Oklahoma as Indian country has raised urgent questions about which government or governments have jurisdiction to prosecute crimes committed there” mostly because “About two million people live there, and the vast majority are not Indians.” The court thus agreed to hear the case “in light of the sudden significance of this jurisdictional question for public safety.” Yet, the principles of federal and tribal jurisdiction had been established everywhere for over 200 years. It thus seems apparent that, for the Supreme Court, questions of public safety only become relevant when they affect many non-Native people, and it sees public safety as being satisfied by giving non-Native entities all the power.
Justice Gorsuch, who wrote the opinion in McGirt, calls the Castro-Huerta decision an “egregious misappropriation of legislative authority” in the dissent, and calls on Congress to not “stand by as this Court sows needless confusion across the country”. The court’s decision pretends that tribes are similar to other organizations or ethnic groups, thus ignoring the special legal status of Native peoples.6 “Tribes are not private organizations within state boundaries,” the dissent clarifies. “Their reservations are not glorified private campgrounds. Tribes are sovereigns.” Chafing at the political nature of the decision, Gorsuch writes that: “Where our predecessors refused to participate
in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.” Having rectified a historical wrong in McGirt, the dissent sees the decision as reimposing another:
Oklahoma’s courts exercised the fortitude to stand athwart their own State’s lawless disregard of the Cherokee’s sovereignty. Now, at the bidding of Oklahoma’s executive branch, this Court unravels those lower-court decisions, defies Congress’s statutes requiring tribal consent, offers its own consent in place of the Tribe’s, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding.One can only hope the political branches and future courts will do their duty to honor this Nation’s promises even as we have failed today to do our own.7
In March, the White Earth Band of Ojibwe Court of Appeals dismissed a suit by the tribe on behalf of Manoomin (wild rice) against the Minnesota Department of Natural Resources for lack of jurisdiction off-reservation.8 The suit was targeted at the Line 3 pipeline9,10 but, perhaps more importantly, is in line with recent attempts to introduce Rights of Nature into the United States justice system through tribal codes and tribal courts. In January, the Sauk-Suiattle Indian Tribe, inspired by the Manoomin lawsuit, sued the city of Seattle on behalf of Tsuladxw (salmon) in a tribal court.11 The tribe wants the city’s utility company to remove three dams from the Skagit River Hydroelectric Project because they are impeding salmon migration to spawning grounds. Several tribes have passed Rights of Nature laws, which stand in contrast to United States laws that see nature as a resource commodity.
In Minnesota, the Fond du Lac Band and the Grand Portage Band of Lake Superior Chippewa sued the federal Environmental Protection Agency (EPA) over its approval of new state water quality assessments. The state eliminated numeric standards and replaced them with narrative descriptions of water quality. The tribes have gathering rights to wild rice off-reservation and argue that the new standards will hurt the culturally important plant. The fear is that by eliminating actual measurements of water quality the door will be opened to non-enforcement. This is the first time a tribe has sued the EPA over approvals of state water quality standards.
In California and Oregon, the federal government announced that work would begin on the largest dam removal project in the world. Federal regulators approved the USD 500 million project in November. It will remove four dams on the Klamath River, a project long proposed by the Yurok, Karuk, and Hoopa Valley tribes and environmental groups. The removal will open up some 300 miles of salmon habitat.
In January, the Save the Redwoods League, a nonprofit organization devoted to protecting and restoring redwood forests, donated over 500 acres of coastal forestland in northern California to the InterTribal Sinkyone Wilderness Council. The Council consists of ten tribes: Cahto Tribe of Laytonville Rancheria, Coyote Valley Band of Pomo Indians, Hopland Band of Pomo Indians, Pinoleville Pomo Nation, Potter Valley Tribe, Redwood Valley Little River Band of Pomo Indians, Robinson Rancheria of Pomo Indians, Round Valley Indian Tribes, Scotts Valley Band of Pomo Indians, and Sherwood Valley Rancheria of Pomo Indians. In 1997, the Sinkyone Council was the first tribal entity to enter into a partnership with a private land trust to protect lands in perpetuity through conservation easements when it established the 3,844 acres InterTribal Sinkyone Wilderness with the Trust for Public Land.
Such collaboration is becoming more common, in part as the “Land Back” movement grows more prominent – the idea of returning lands to tribes, often as part of conservation mandates. In November, the Upper Mattaponi Indian Tribe and the Rappahannock Tribe of Virginia were awarded grants directly from the Virginia Land Conservation Fund to acquire forest lands.
The federal government has awarded Tribal Wildlife Grants through the US Fish and Wildlife Service (FWS) since 2003. This year, it awarded almost USD 6 million to 33 tribes in 16 states. The projects include restoration plans, habitat restoration programs, fisheries monitoring equipment, and other projects. In September, the Department of the Interior released new guidance for collaboration with tribes. The Bureau of Land Management (BLM),12 National Park Service (NPS),13 and the FWS14 released plans for better collaboration with tribal governments. In Montana, the Confederated Salish and Kootenai Tribes of the Flathead Reservation took management control over the National Bison Range from the FWS in a proposal decades in the making.15,16 The 19,000-acre large National Bison Range is located within the reservation.
Unfortunately, without addressing the roots of species extinction, industrial agriculture, an economy based on consumption, landscape changes, and ecosystem destruction, these efforts are but grains of sand on a beach. Three Native communities received USD 25 million each to relocate because of climate change: Newtok and Napakiak in Alaska and Quinault in Washington. Relocation efforts have been ongoing in some communities for over a decade.17,18,19 Melting permafrost, rising sea levels, and coastal erosion render their locations increasingly uninhabitable. Another eight communities in Alaska, Arizona, California, Louisiana, and Maine received USD 5 million each to help with climate change-related issues. In April, the Bipartisan Infrastructure Law provided USD 216 million to the Bureau of Indian Affairs (BIA) for climate resilience programs over five years. USD 30 million of that money is earmarked for community relocation efforts. The relocation of one household can cost as much as one million dollars.
Conflicts over conservation
In September, a federal court decided once again that the Solenex oil lease in the Badger-Two Medicine area of the Lewis and Clark National Forest in Montana had to be reinstated.20,21 The area is sacred to the Blackfeet Nation. The lease was one of a number of resource extraction leases in this area first issued in 1982. After decades of education efforts, voluntary withdrawals, and government action, all other leases in the area have been withdrawn.
Conflicts over mineral extraction are projected to increase, especially as the United States attempts to achieve an energy transition reliant on key metals. 97/% of nickel, 89% of copper, 79% of lithium, and 68% of cobalt reserves and resources are found within 35 miles of reservations. Whether or not Native peoples object to mining depends on a variety of factors, of course. However, in many cases, the experience of Native communities is that companies try to cut corners. In October, two congressional committees released a report on how the proposed Pebble Mine copper mine project in Alaska (see The Indigenous World 2021) had tried to deceive the regulatory agencies in its permit applications.22
The Resolution Copper Mine in Arizona,23,24 which threatens the sacred Oak Flat in the Tonto National Forest, is on hold again. In June, a panel of the Ninth Circuit Court of Appeals approved the mine25 but, in November, the full court approved a re-hearing. In the meantime, a technical review of the Final Environmental Impact Statement (FEIS) for the project by hydrogeologists from the Bureau of Land Management (BLM) recommended that several additional assessments and changes be made, among others to account for the effects of climate change.26 In November, an Arizona Court of Appeals decided that the water permit for the mine project issued by the Arizona Department of Environmental Quality was issued improperly. Under the decision, the permit process would need to start over.
In July, the Oglala Sioux Tribe in South Dakota sued the Department of the Interior for more police officers. The tribe polices 3.1 million acres and receives almost 134,000 emergency calls a year but has only 33 federally-funded police officers and eight federally-funded criminal investigators. The tribe alleges that treaty obligations, trustee status, and federal law require the federal government to fund a sufficient number of law enforcement staff.27 The South Dakota legislature also passed a resolution “urging the federal government to fulfill treaty obligations by fully funding” police departments of the Oglala Sioux Tribe and the Rosebud Sioux Tribe.28 Similar to last year’s decision in Rosebud v. United States, the lawsuit argues that the federal government is obliged to provide sufficient healthcare to the Lakota.29
This article is part of the 37th 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 2023 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-recognized tribes and/or based on eligibility for their services.
Current numbers are based on: American Community Survey. S0201 Selected Population Profile in the United States. The U.S. Census Bureau, 2021, https://data.census.gov/tableq=S0201&t=006:009:01A&y=2021&tid=ACSSPP1Y2021.S0201
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 87, No.19, 7554-7558, 28 January 2022, https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01789.pdf
3 Oklahoma v. Castro-Huerta. Supreme Court of the United States. No. 21-429. 29 June 2022
4 Carole Goldberg, Distinguished Research Professor, UCLA School of Law, Chief Justice, Court of Appeals, Hualapai Tribe, Chief Justice, Court of Appeals, Pechanga Band of Indians. Testimony to the Subcommittee for Indigenous Peoples of the United States, Committee on Natural Resources, U.S. House of Representatives. Hearing on Examining Oklahoma v. Castro-Huerta: The Implications of the Supreme Court's Ruling on Tribal Sovereignty.
5Braun, Sebastian. “The Indigenous World 2021: The United States.” In The Indigenous World 2021, edited by Dwayne Mamo, 569-577, 2021, https://www.iwgia.org/en/usa/4253-iw-2021-usa.html
6 See, for example: Braun, Sebastian Felix. “Building on Native Sovereignty.” In Native American Nationalism and Nation Re-building. Past and Present Cases, edited by Simone Poliandri, Albany: SUNY Press, 37-42, 2016.
7 Oklahoma v. Castro-Huerta. Supreme Court of the United States. No. 21-429. 42, 29 June 2022.
8 Minnesota Department of Natural Resources v. Manoomin. White Earth Band of Ojibwe Court of Appeals. File No. AP21-0516. 10 March 2022.
9 Braun, Sebastian. “The Indigenous World 2021: The United States.” In The Indigenous World 2021, edited by Dwayne Mamo, 569-577, 2021, https://www.iwgia.org/en/usa/4253-iw-2021-usa.html
10 Braun, Sebastian. “The Indigenous World 2022: The United States.” In The Indigenous World 2022, edited by Dwayne Mamo, 562-571, 2022, https://www.iwgia.org/en/usa/4684-iw-2022-united-states-of-america.html
11 Sauk-Suiattle Indian Tribe v. City of Seattle. Sauk-Suiattle Tribal Court. Case No. SAU-CIV-01/22-001. Civil Complaint for Declaratory Judgment.
12 United States Department of the Interior. Bureau of Land Management. Permanent Instruction Memorandum No. 2022-011. 13 September 2022, https://www.blm.gov/sites/default/files/docs/2022-09/PIM2022-011%20+%20attachment.pdf
13 United States Department of the Interior. National Park Service. Policy Memorandum 22-03, https://www.nps.gov/subjects/policy/upload/PM_22-03.pdf
14 United States Department of the Interior. Fish and Wildlife Service. Director´s Order No.:227, https://www.fws.gov/sites/default/files/documents/076566-USFWS-DO.pdf
15 “The Indigenous World 2007: The United States.” In The Indigenous World 2007, edited by Sille Stidsen, 81-90, 2007,
16 Braun, Sebastian. “The Indigenous World 2008: The United States.” In The Indigenous World 2008, edited by Kathrin Wessendorf, 66-75, 2008,
17 Braun, Sebastian. “The Indigenous World 2014: The United States.” In The Indigenous World 2014, edited by Cæcilie Mikkelsen, 55-64, 2014, https://iwgia.org/images/documentos/indigenous-world-esp/mundo-indigena-2014.pdf
18 Braun, Sebastian. “The Indigenous World 2017: The United States.” In The Indigenous World 2017, edited by Katrine Broch Hansen, Käthe Jepsen and Pamela Leiva Jacquelin, 103-114, 2017, https://iwgia.org/images/documentos/indigenous-world-esp/mundo-indigena-2017.pdf
19 Braun, Sebastian. “The Indigenous World 2020: The United States.” In The Indigenous World 2020, edited by Dwayne Mamo, 579-587, 2020, https://www.iwgia.org/en/usa/3640-iw-2020-united-states-of-america.html
20 Solenex, LLC v Haaland. United States District Court for the District of Columbia. Civil Case No. 13-993 (RJL). Memorandum Opinion. 9 September 2022.
21 Braun, Sebastian. “The Indigenous World 2019: The United States.” In The Indigenous World 2019, edited by David Nathaniel Berger, 73-80, 2019, https://www.iwgia.org/images/documentos/indigenous-world-esp/ElMundoIndigena2019_ES.pdf
22 The House Committee on Transportation and Infrastructure. “No Current Plans…” Pebble LP, Sham Permitting, and False Testimony Threatening the World’s Largest Salmon Habitat. October 2022, https://transportation.house.gov/imo/media/doc/TI Committee Pebble Mine Report and Appendix 1.pdf
23 Braun, Sebastian. “The Indigenous World 2021: The United States.” In The Indigenous World 2021, edited by Dwayne Mamo, 569-577, 2021, https://www.iwgia.org/en/usa/4253-iw-2021-usa.html
24 Braun, Sebastian. “The Indigenous World 2022: The United States.” In The Indigenous World 2022, edited by Dwayne Mamo, 562-571, 2022, https://www.iwgia.org/en/usa/4684-iw-2022-united-states-of-america.html
25 Apache Stronghold v. United States of America. United States Court of Appeals for the Ninth Circuit. No. 21-15295; D.C. No. 2:21-cv-00050-SPL. Opinion. 24 June 2022.
26 Dubas, Lisa, James Johnsen, and Steve Rice. Bureau of Land Management Review of Hydrology Aspects of the Resolution Copper Project. 13 June 2022, http://azminingreform.org/wp-content/uploads/2022/09/BLM-Hydrology-Review-of-USFS-Resolution-Copper-Project-FEIS.pdf
27 Oglala Sioux Tribe v. United States of America. United States District Court, District of South Dakota, Western Division. Civil Action No. 5:22-cv-5066. Complaint. 26 July 2022.
29 Braun, Sebastian. “The Indigenous World 2022: The United States.” In The Indigenous World 2022, edited by Dwayne Mamo, 562-571, 2022.
Tags: Global governance