Every Tribe Has A Wound

For Laguna Pueblo, where I am from, our wound was an open pit uranium mine constructed by ARCO Inc. I felt the pain that reverberated through Se Hoba, the People, and the land.

Editor’s Note: This is part 1 of a series discussing the history, present, and future of tribal relations in America. Read part 2 on tribal sovereignty here.

A n average American may not know that there are hundreds of tribes in the United States and all of them are sovereign nations with unique and diverse governance systems.

Some have their own courts, jails, hospitals, police, construction companies, schools, everything that typifies the infrastructure of any nation. Tribes have existed for centuries with their own cultures and decision-making processes. Thus, as separate nations, tribes have an expectation of comity — mutual recognition — with the federal and state governments.

In my experience, each tribal nation also has its own wound to heal. For Laguna Pueblo, where I am from, it was an open pit uranium mine constructed by ARCO Inc. I grew up just an hour away from the Laguna Reservation. During the summers I would work there and live with either my grandma or aunt. It was through my relationships with my family that I learned about the intergenerational effects of that wound.

I felt the pain that reverberated through Se Hoba, the People, and the land.

Back when the pit was in full operation, my grandfather worked as a miner and would come home to hug my mother, his work clothes caked with yellow dust full of radiation. My mother refers to me as a miracle baby, since like many Native women who grew up next to a Superfund site like that open pit uranium mine she had a difficult time getting pregnant. Every time I drove to the village to watch our ceremonial dances, I would pass the remnants of the abandoned mine and think about all the elders who had passed away from cancer or other illness.

I would think about the contaminated waters and how there were so few crops or fruit trees that my mother used to enjoy. I also couldn’t help but think about all the ways our lives had been changed by the mine. The mine decreased participation in growing crops, ranching, and ceremonies because the men became dependent on mining income.

Some activities such as ranching and growing crops almost completely died out; the more money the miners earned, the more they turned toward consumer culture. Expenses began piling up for cars, utilities, and trips to the city. There was now money to spend on alcohol and drugs, and crime increased on the reservation.

Because tribes are so intertwined with the soil and water and all of the living things of this earth, when the environment is harmed, we are devastated in many ways.

ARCO has never adequately compensated Laguna for the damage their mine did to the Tribe.

For the Yurok Tribe, where I work now, their wound is the Klamath Dams which have decimated the River’s salmon population and deeply upset their culture and diet.

I became a lawyer because I believe it takes many types of people to heal a wound and I thought that using words and navigating the legal system could help with not just the healing, but with protecting tribes from future harm to their lands.

Another reason why I decided to step onto this career path was because I wanted to learn how decisions made by both state and federal governments that either directly or indirectly harmed tribes — such as the decision to erect the Klamath Dams or allow an open pit uranium mine to be operated just miles away from a Laguna village — could be influenced or even blocked by a tribe.

When the Yurok Tribe or any tribe in the United States for that matter, deals with a federal or state decision, there is often only one key moment to formally participate.

It’s called government-to-government consultation.

In practice, tribal consultation for the Yurok Tribe means interacting with both federal and state partners on a near-weekly basis. For me, as a young attorney, the trick is to effectively relay and facilitate sharing of information and requests from tribal leaders to the state, while maintaining a positive relationship with federal and state actors.

In order to accomplish this, I demonstrate a strong desire for justice rooted in the Tribe’s relationship to its lands and the Klamath River. California’s history is so violent and the land theft was so extensive that the relationship with tribes will always be tense, yet each day I see trust is being built before our eyes. Conversations with California and federal agencies can be strange and frustrating.

Imagine. Someone forces you out of your house, restricts you to just one small room — maybe even kills your family. The intruders then build new houses on top of your land and damage the environment.

Years later they ask you to help them figure out how to make their houses energy-efficient and how to properly care for your cultural artifacts they happened to find in the backyard while putting in a new swimming pool…

You get the picture. Sometimes I feel like I exist in a halfway state, like I’m both under and over representing the importance of tribal consultation.

I’m not a Yurok tribal member, but as a member of a tribe, I feel in my heart the deep need to embody the “give us back what you stole” attitude. I want to recount how these lands became federal and state-controlled at every meeting and demand land back. But being both an attorney and a tribal member means being professional and diplomatic even when you’re fighting for your livelihood.

You have to be realistic with your client about the law’s limitations — such as the limitations of tribal government-to-government consultation. And frankly, the red flags of consultation have been there since the beginning of the relationship between tribes, the federal government, and states.

The Erratic World of Federal Indian Law

To fully understand tribal consultation and the impact it has on tribal nations, we have to first delve into the erratic world of federal Indian law.

One small aspect of this translates to the right of consultation. Consultation in the United States is still being defined, but loosely it can be described as an ongoing dialogue between tribes and either state or federal government on a project or action that impacts the tribe or its resources.

The federal government’s power to regulate Indian affairs derives from the text and structure of the Constitution. Article I, section 8, refers to tribes and states with equal weight:

“The Congress shall have the power to…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

But unlike the federalist principles that govern our current system, the federal government’s authority over and relationship with tribal nations is rooted in the “Doctrine of Discovery — the very core of the United States’ painful legacy of colonialism and imperialism.

Under the U.S. colonial project, tribes’ power over land was inferior to the U.S. as the “discovering” nation. This notion that tribes are inferior to the U.S. gave rise to one of the basic principles of federal Indian law — that the federal government has a trust or special relationship with tribes.

Yet it should come as no surprise that the federal trust relationship has exhibited less than faithful protection over tribal resources in some cases.

Why the Federal Trust Relationship is Deeply Flawed

One of the integral Supreme Court cases we have to thank for this paternalistic dynamic is Cherokee Nation v. Georgia (1831), which both declared tribes to be domestic dependent nations and immortalized the federal-tribal relationship to that of a trust relationship between a guardian (the U.S.) and a ward (tribes).

Cherokee Nation v Georgia, by both treating tribes as inferior and using the doctrine of discovery to justify mass land theft and subjugation, forced tribes to accept a patriarchal and predatory relationship in order for tribes to receive basic necessities such as food, housing, and protection from settlers.

Recent studies have concluded that the Indigenous peoples of North America were dispossessed of nearly 99% of their lands.

On the flip side of the federal trust relationship, is the duty to protect the rights and remaining resources that tribes have today. The federal trust relationship obligates the U.S. to recognize and preserve tribal hunting, fishing, and other usufructuary rights on federal land. (Usufructuary refers to the right to enjoy the use and advantages of another’s property “short of the destruction or waste of its substance.”)

The federal government has also taken on the responsibility to provide specialized government services to Indian people, including healthcare and education. Under the trust relationship the federal government administers Indian trust lands for the benefit of the tribes and individuals who are equitable owners of the land.

This federal trust relationship is referenced in nearly every piece of federal Indian legislation, including the laws that eventually entitled tribes to consultation.

The federal trust responsibility is not only flawed due to its colonialist underpinnings and exploitation, but it’s also inapplicable to states and local governments. Historically, states have not had a trust responsibility towards tribes and were in fact blocked by the federal government from interfering in tribal affairs. This means that for the past two decades or so tribes have been busy advocating for states to adopt rules, regulations, and laws that reflect the same level of dealings that go on between tribes and the federal government today.

This is particularly problematic and distressing for tribes as states still control many aspects of life that fundamentally impact tribes, from criminal law and policing to environmental policy and planning and everything in between.

And making matters even more complicated?

The relationship between states and tribes has been hostile because of the lack of that special trust relationship. In fact, the Supreme Court has referred to states as the deadliest enemies of tribes.

A Californian Genocide

This “deadliness” was quite literal in California, where massacres against California tribes were systematically carried out. The state’s main goals during the development of the federal trust relationship were Westward expansion, white settlement, and resource extraction to which tribes were a direct “impediment.”

For the Yurok Tribe, the gold rush and accompanying white settlement led directly to several massacres. By the end of the gold rush era at least 75% of the Yurok people died due to massacres and disease, while other tribes in California saw a 95% loss of life.

The profound schism resulting from genocide committed against Native people shaped the constant and enduring struggle between states and tribes over jurisdiction and resources. All the while, the federal government has attempted to limit the states’ authority over tribes in order to maintain its own control over tribal lands and resources.

In states where federal oversight is frowned upon, you can imagine how hostile this relationship with tribal affairs can get. States argue they should be able to control tribal residents with no obligation to protect or honor tribal rights because they are no longer separate from states as they have been assimilated into the dominant culture.

And, the states argue, even if there are some tribal-specific concerns, they bear no responsibility. Additionally, because there are so many complex doctrines governing the scope of state and tribal jurisdiction, it is often difficult to negotiate without first agreeing to disagree about the scope of each sovereign’s power.

With jurisdictional conflicts — especially conflicts over land, development, and projects — comes a dire need for consultation and agreement-making.

Since colonization, the federal government has used law and policy to exclude tribes from protecting sacred places and lands that were important to them. However, the protection offered to tribal resources has steadily grown over the years.

In witnessing the beauty of the Klamath River for the first time, it was clear how important and special the River is to the Yurok people. But it’s also important for non-Native people to acknowledge that they will never fully understand the connection between a tribe and its lands. And that is okay.

I’m a desert Native, I can’t see the importance of fish the way Yurok people do. But I can relate it to the importance of rain or corn for Pueblo people. What matters to me is that the Klamath River — and any tribal nation’s lifeline—is protected by any means we can access as a matter of sovereign authority, as an inherent right.

Even if that relationship with the federal government and states is uncomfortable, and even if tribes need to move away from dependence on them, it’s important to realize that tribal consultation can be one small tool to heal some of the wounds tribes suffer from.

In part two of this article series I will talk about specific legislation that formed the tribal consultation doctrine, tribal movements around consultation and free prior and informed consent, and the current state of affairs with California state-tribal relations.