The Department of the Interior's Appeals Process and Native American Natural Resource Policy, 1970-94

Beginning of article

Department of the Interior (DOI) administrative appeals involving Native American lands and resources were studied to find out whether these cases or their outcomes had changed during the "self-determination" era of U.S. Indian policy. This policy's stated intention has been greater Native American control of lands and resources, but in the DOI arena this research indicates the opposite as a policy outcome.

The Department of the Interior (DOI) holds a sweeping congressional mandate over Native American lands within the boundaries of the United States--a mandate of "plenary," or absolute, power over all aspects of Native American lives (Barsh & Henderson, 1980, pp. 209--216; Wilkins, 1997, pp. 24-27). This mandate is not accepted uniformly. Therefore, it is not surprising that the DOI's role has been a consistent source of controversy since Congress made the Bureau of Indian Affairs (BIA) part of the DOI in 1849 (cahn, 1970, esp. pt. 3; Nelson & Sheley, 1985; O'Brien, 1989).

Given this high level of controversy, it also is not surprising that decisions made by lower-level Department personnel often are appealed to higher Department levels, where judicial bodies have been established to decide such cases. The outcomes of these administrative appeals over the period 1970-94, as they impacted the lands and resources of Native Americans, are the focus of this study. These decisions provide one way to measure the outcome of U.S. policy toward Native Americans, an arena that is complex and recently has become more visible.

Definition of the Problem

In recent years, there has been increased public, scholarly, and official discussion of the role and power of Native Americans and tribal governments within U.S. boundaries. Much of the discussion by non-Indians, led by the media, has assumed that Native nations' power has increased. Some Native Americans agree with this assessment, but many disagree, citing a history of short-term gains and long-term losses in indigenous control over land and resources (Alfred, 1995, pp. 6-7; Barsh, 1994; Campobasso, 1994; Deloria, 1985, 1991; Gover, 1987; Urge, 1977; D. Lester, November 1994, personal interview; MacPherson, 1993; Miller, Tsiantar, Murr, & Kenney, 1988; J. Morrin, June 1994, personal interview; "New interest," 1993; Robbins 1992; B. Robideau, March 1993, personal interview; Serwer, 1993; Tecumseh Group, 1997).

Despite all the discussion, no one has attempted to measure systematically the outcomes of interactions among tribal, state, and U.S. authorities. This lack is particularly important in the context of issues involving land and its attached natural resources. From the formation of the first treaty commissions in the days of the Articles of Confederation to the current location of issues involving Native Americans in the House of Representatives' Resources Committee, the control of land has been at the center of Native American-U.S. relations. Before turning to the data collected for this study, a summary of this complex policy arena is in order.

The original U.S. policy toward Native American nations was to negotiate international treaties that would define and protect the new nation's territorial claims. In the early 1800s, this policy ran parallel to the policies of removing Native Americans from the eastern United States and exterminating them in the West. To the latter end, the Indian Office was formed in 1824 within the Department of War (Churchill, 1993. pp. 38-47; O'Brien, 1989. chap. 4).

After the DOI was formed, the Indian Office found a new bureaucratic home within the Department. Originally a hodgepodge of agencies, the Department's focus became the management of land, primarily the "public lands" carved out of the western half of the continent when Native Americans were dislocated or defeated (Churchill, 1995, pp. 27-31; Switzer, 1994. p. 52). [1]

The Indian Office and its successor BIA were charged with protecting Native Americans under the trust doctrine, which defined Native Americans as "domestic dependent nations" and held that they were incompetent to manage their own affairs. The BIA was given broad responsibility for and control over Native American lives and lands, most famously in the 1903 case Lone Wolf v. Hitchcock. In that decision, the U.S. Supreme Court enunciated the federal government's "plenary," or total, power over Native lands and lives (Cahn, 1970, pp. 112-132; Deloria, 1985, pp. 247-249; O'Brien, 1989, pp. 259-267).

The Secretary of the Interior still has final say on all contracts and leases involving Native American lands. This includes long-range contracts for the extraction of mineral and water resources that benefit corporations and non-Indian individuals (Ambler, 1990; McCool, 1987).

Thus, for 150 years, the DOI has had an internal conflict of interest: It is both the agency that is obligated to protect Native interests and the agency that is obligated to promote non-Native interests--often on the same lands (Barsh, 1992, pp. 216-218; Cahn, 1970, pp. 156-162; Kickingbird & Ducheneaux, 1973; Marsh, 1997, pp. 796-797). These conflicts are the source of many of the cases that are the subject of this study.

Throughout the late 1800s and until the present day, the BIA has been criticized roundly for its failure to protect Native American interests. As Pevar (1992, p. 222) noted in the context of water, the critical resource in the West where most reservations are located, "Frequently, government agencies, when faced with scarce water resources, ignore Indian water rights in favor of other interests."

However, the BIA's failure involves more than a conflict of interest with other DOI agencies. The BIA consistently has been scandal-ridden and viewed as less than competent, earning titles like "the worst federal agency" (Cahn, 1970; NcCool, 1987, pp. 146-156; Nelson & Sheley, 1985, pp. 178-179; Satchell, 1994). The most recent major scandal involved the BIA's inability to account for $3.2 billion of the $4.4 billion in Native American assets that it holds in trust (Satchell, 1994).

The agency's lack of success is heralded by observations such as Rawls' (1996, p. 77) that:

In spite of decades of federal programs designed to eradicate poverty from the nation's reservations and urban slums, Indians continued throughout the twentieth century to be the most disadvantaged group of Americans.

This is particularly ironic when coupled with the fact that reservation lands hold rich resources, including one-third of the known coal reserves west of the Mississippi, large deposits of oil and uranium, and extensive forests (Ambler, 1990, chap. 1; Barsh, 1992; Churchill, 1995, pp. 181-185).

Barsh (1992) suggested that the BIA has been more than a poor trustee. His economic analysis indicated that the resources the BIA controls have been used by the federal government as a buffer during recessionary periods. [2]

Under these conditions, it is difficult to say that a BIA-Native American "trust" relationship actually exists. This research proceeds with the assumption that BIA interests and Native American interests are not equivalent. Rather, where both the BIA and Native American governments and/or individuals are involved in a case, the outcomes were analyzed for each actor involved separately.

The period covered by this research begins in 1970 and includes the first 25 years of the "self-determination" era in U.S. policy toward Native Americans. The coming of "self-determination" was supposed to bring increased tribal government power and remove the BIA from its position of control over Native American lives and lands. While the concept of "self-determination" was enunciated by President Johnson as early as 1968, the formal adoption of this policy by the executive branch usually is traced to the Nixon administration (Cook, 1996, pp. 12-13; Taylor, 1972, Appendix G). As the policy was enunciated by President Nixon in 1970 (Ambler, 1990, p. 23):

This ... must be the goal of any new national policy toward the Indian People: to strengthen the Indian's sense of autonomy without threatening his sense of community. We must assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support.

Although earlier laws had heralded the change in direction, Congress formally adopted "self-determination" policy in the 1975 Indian Self-Determination and Educational Assistance Act (Ambler, 1990, pp. 23-24; Nagel, 1996, pp. 217- 220).

The meaning of "self-determination" has been hotly contested and what Wheelock (1995) calls "an enigma" (Chaudhuri, 1985, p. 28; Churchill, 1993, pp. 375-400; Newton, 1993, pp. 28-34; Rawls, 1996, pp. 59-75). Scholars and policymakers have argued throughout the period over whether the policy truly is one of "self-determination," meaning a people's right to "freely determine their political status and freely pursue their economic, social and cultural development," (O'Brien, 1985, p. 42) or one of "self-government," which Deloria and Lytle (1984, p. 18) defined as "those forms of government that the federal government deems acceptable and legitimate exercises of political power and that are recognizable by the executive and legislative branches."

The difference is important because true self-determination would mean that Native Americans control land and resources independent of Congress's "plenary" power, as exercised through the BIA. To many Native Americans, "self-determination" would mean a return to nationhood independent of U.S. control (Alfred, 1995, chap. 1). Because of historical events and the BIA's continued control over Native lives during the "self-determination" era, many people operate under the assumption that the de facto U.S. policy toward Native Americans remains extermination or assimilation. This hangs like a pall of distrust over all BIA and DOI actions (Churchill, 1993; Gedicks, 1993; Jaimes, 1992; Lacy, 1985).

Still, the self-determination era generally is agreed to mark some form of departure from earlier official U.S. policies (O'Brien, 1985; Nagel, 1996; Robbins, 1992; Wheelock, 1995). The question is what type of change has occurred.

Nelson and Sheley (1985) studied the criminal justice arena and concluded, as public administration would suggest, that the BIA simply has reoriented itself to maintain its position of power over Native American lives. Here the topic is U.S. policy in the natural resources arena, and the focus is less on administrative procedure than on legal outcomes, but the task is essentially the same--to identify precisely what change, if any, has occurred in U.S. policy in the self-determination era.

Native Nations and Political Science

This research uses analysis of legal decisions to identify patterns of stability and change in the nature and outcome of DOI administrative appeals. In the arena of Native American-U.S. interactions, the outcomes of DOI appeals provide only one indicator--they cannot provide a final answer on the nature of overall policy interactions. However, in an arena that is understudied and resists easy generalization, the identification of patterns of interaction and power sharing at the national level, particularly those involving the U.S. agency with "plenary" policy power, is an important contribution to the literature.

The barriers to study and generalization of U.S.-Native American policy have cultural, normative, and scholarly aspects. For example, the participants in these interactions operate from a series of …