President-elect Joe Biden is offering his formal backing to an ‘omnibus Indian recognition bill’ early in the next Congress. Sources close to the matter expect the bill to include formal federal recognition of the indigenous political status of Native Hawaiians and Alaska Natives, allowing those indigenous groups to move their current land holdings into federal trust and to organize self-determining tribal governments recognized under federal laws pertaining to American Indians.
Former Senator Daniel Akaka tried several times to achieve passage of the Native Hawaiian Recognition Act, from 2000 to 2006, and nearly achieved Senate passage, falling short by only a few votes. That bill would have allowed Native Hawaiians to organize a tribal government and enjoy the federal protection of their lands from encroachment. More than 500,000 individuals in Hawaii identify as Native Hawaiian in the 2010 census.
Alaska Native Villages and Alaska Native Village Corporations are not currently able to organize under the Indian Reorganization Act of 1934, largely because of the work of former Senator Ted Stevens to ensure that indigenous Alaskans would not need the federal approval of the Department of the Interior to sell or lease their lands for the purpose of resource extraction.
The bill is also expected to include Congressional recognition of a dozen American Indian tribes and bands of tribes that are currently unrecognized by the Bureau of Indian Affairs — including the Lumbee Nation of North Carolina, the Buffalo Creek Band of Haudenosaunee Indians, the Wampanoag Nation of Indians, the Eastern Cherokee Nation of Georgia, and the Lenape Nation, among others.
It’s unclear if the legislation will include formal recognition of Canada’s First Nations communities, for the purpose of (among other things) enabling cross-border tribal banking with financial institutions in the United States, both for Reserve governments and entrepreneurs.
Deb Haaland, Biden’s nominee to become Secretary of the Interior, will be the first Native American woman to serve in the Cabinet in American history and is expected to be the administration’s point person on the bill. The Department of the Interior is responsible for processing applications for tribal recognition — an application process that takes decades and often costs indigenous communities millions of dollars for lawyers, lobbyists, anthropologists, geneticists, and historians in order to prove their indigeneity.
But Congress, having plenary powers over Indian affairs, could bypass that decades-long process.
It’s unclear whether an ‘Omnibus Indian Recognition Act’ would include other policy items that are important to indigenous communities. Several policy sections are being considered for the legislation, which has not yet been formally drafted, including:
- The Oneida Fix. Supreme Court Justice Ruth Bader Ginsburg lamented before she passed that the decision she most regrets while on the Court was her 8-1 majority opinion in Oneida Nation v Sherill County (2005), in which she employs one of the most racist cannons of legal construction in American history against the tribe. The tribe had been purchasing dozens of parcels amounting to thousands of acres of lands that it was defrauded of generations ago, and hoped that they could hold ownership of those lands themselves — but Ginsburg, on her own volition, insisted that the Tribe would have transfer ownership of the lands to the Department of the Interior in order to utilize as tribal lands. In order to avoid paying local municipal property taxes on their landholdings, she demanded that the Tribe should be forced to turn over ownership to the federal government. Indian Country resoundingly rejected the decision, which explicitly relied on the Doctrine of Christian Discovery with regard to extinguishing the Tribe’s inherent sovereignty over its land. Tribal leaders have been pushing to include a policy rider on the Indian recognition act — being called ‘the Oneida Fix’ — that would enable Tribes to repurchase lands for their full use and enjoyment, without having to transfer the lands’ ownership to the Department of the Interior in order to do so.
- Office of Indian Trade. Many Native American businessmen want to restore the long-defunct Office of Indian Trade, tasked with negotiating nation-to-nation trade agreements directly with Tribal governments. They want the office led by a new cabinet-level position: the United States Ambassador for Indian Trade, similarly situated to the United States Trade Ambassador. The new Office would be intended to manage Tribes’ inclusion in recurring six-year renewal talks under the US-Mexico-Canada Agreement (USMCA), the successor treaty to the North American Free Trade Agreement (NAFTA). Former Seneca Nation President Robert Odawi Porter and Oneida Nation Representative Ray Halbritter are both thought to be in contention to lead that office.
- Cabinet-level status for the Bureau of Indian Affairs. For decades, Tribes have been asking American Presidents to make the Bureau of Indian Affairs either a stand-alone cabinet department or a division of the State Department. Tribal leaders want to be treated like sovereigns, not like Fish and Wildlife. Elevating the Bureau would respect the nation-to-nation relationship that Tribes have with the federal government. Several names have been floated for the post of Secretary of Indian Affairs, including Navajo President Jonathan Nez and W. Ron Allen, the Chairman of the Jamestown S’Klallam Tribe in Washington State.
Tribal leaders hope that the ‘Indian Recognition Act’ will pass both houses of Congress and be signed into law during the Biden administration’s first 100 days. Indian Country has its hopes set on securing an Indian Bank Regulatory Act, in order to ensure that Tribes have the tools to exercise their own civil regulatory jurisdiction over their own sovereign financial markets. The legislation is seen as the ‘holy grail’ of economic development for Indian Country, which would give Tribes and tribal entrepreneurs unprecedented access to the global capital markets.
Although some hope that legislation will pass in the next legislative session, others predict that it will take into early 2022 to cultivate sufficient congressional support for it.
