By Tom Prezelski
Re-Posted From Rum, Romanism and Rebellion
On Sunday, came the news that my former colleague, State Senator Jack
Jackson Jr., a Democrat who has ably represented Tony Hillerman Country
in the Arizona Legislature for a total of 6 years, will be resigning to accept a post in the State Department.
A Presidential appointee, Jackson’s official title will be Senior
Advisor and Liaison for Native American Affairs in the State
Department’s Bureau of Oceans and International Environment
and Scientific Affairs. This is a new position created in response to
complaints by tribal leaders who say, with more than a little
justification, that they have not been properly consulted during the
process regarding the Keystone Pipeline. The job is not only a step up
for Jackson, but it also represents a significant step forward for how
the federal government deals with tribes.
The concept of tribal sovereignty is one of the most misunderstood
aspects of how government operates. Simply put, under the constitution,
tribes are recognized as self-governing and have a special, direct
relationship with the federal government. Though this seems simple, the
practical specifics of how this works can get quite complicated, but
everything makes sense once this is understood. This explains, for
instance, why relations with tribes are often governed by treaties as if
they were foreign powers.
Responsibility for carrying out tribal policy has largely fallen to
the Department of Interior. This sticks in the craw of many Natives, who
believe that this throws them in the same box with antiquities and
wildlife. While this attitude is certainly consistent with the usual
modern public face of the department, Interior’s historical role in
managing relations with tribes actually pre-dates the National Park
System.
This being said, the Bureau of Indian Affairs,
an Interior agency, is not well-regarded in Indian Country. The BIA has
a long history of what could charitably be called high-handed behavior
with tribes, and efforts in recent decades to fix things have met with
mixed results due to bureaucratic culture, tribal skepticism, and the
fact that supporting reform has rarely been a priority for the Congress.
Interior Secretary Stewart Udall’s efforts to transform the BIA in the 1960s eventually led to the passage of the Indian Self-Determination and Education Assistance Act,
also known as Public Law 93-638, which, among other things, allowed
tribes to effectively take over certain federal functions. It would be
over 20 years before most tribes were in a position to take advantage of
the law, but “638″ quickly became a verb for doing so. BIA offices were
emptied as tribes assumed responsibility for what the Interior
bureaucracy used to do.
Years ago, when I was still working in tribal government, I attended
an out-of-town conference and ended up in a hotel bar late one night
with a guy from Rosebud who worked as a consultant. We had one of those
conversations that one has late at night in hotel bars during
out-of-town conferences. At one point, he said “We should try to 638 the
Air Force, or the State Department.” He seemed very sincere about this,
even though he knew it was ridiculous.
Of course, as he was quick to point out, there were still important,
unresolved questions about the limits of tribal sovereignty. For
example, can tribes have their own foreign policy? Can they make international
trade deals? The answer to both is probably “no,” but it was an
intriguing thought experiment nonetheless. Besides, he pointed out, if
tribes are sovereign, shouldn’t they be dealing with the State
Department rather than Interior?
I cited the historical reasons why Interior is responsible for tribal
relations, but I had to acknowledge that he had a point. News of
Jackson’s appointment reminded me of this long-ago conversation and left
me wondering what the long term implications of his work will be.
During the Clinton Administration, a sweeping executive order
clarified the government-to-government relationship between tribes and
the Federal Government, and required federal agencies to honor this by
creating specific policies for tribal consultation.
Of course, what different agencies did with this varied considerably,
and some did very little. The order remained in effect through the Bush
Administration, though it was somewhat neglected.
The State Department did comparatively little with regard to the
order at the time, which is understandable on some level. Even though
our two Southern Arizona tribes, for example, have international
interests, their issues are generally regarded as a matter for Homeland
Security rather than State. Until this recent issue with the Keystone
Pipeline, it does not seem to have occurred to anybody that tribes have a
direct interest in foreign policy. Fortunately, thanks to the Clinton
era executive order, the tribes were in a position to speak up to an
extent they would not have been otherwise.
Senator Jackson’s appointment shows that tribes are now in a position
to assert themselves as never before. Jack gets to be a part of the
history that is being made here. It will be exciting to see what a man
as humble, committed and capable as he is will do with this opportunity.