President Trump offended American Indians recently when he referred to a political opponent as Pocahontas at an event to honor Navajo code-talkers. His comments come as no surprise — his administration has paved the way for the completion of the Dakota Access Pipeline despite objections from tribes and has yet to nominate an assistant secretary of Indian Affairs.
Yet earlier this month, the administration spoke up for Indian nations in defending the constitutionality of the Gun Lake Trust Reaffirmation Act before the Supreme Court in Patchak v. Zinke.
The case involves the taking of 147 acres of land into trust for the Match-E-Be-Nash-She-Wish Band of Potawatomi Indians in Michigan. There is nothing unusual about a tribe requesting land be taken into trust. From the very first Congress, which adopted the Indian Trade and Intercourse Act in 1790, the U.S. government’s Indian Affairs policy has centered on land issues and recognized Indian tribes as separate governments. Congress has ratified approximately 400 treaties and enacted hundreds of statutes dealing with Indians. These treaties and statutes create a special relationship between the United States and tribes.
Congress first authorized the taking of land into trust in the 1930s to reverse the declining economic, cultural and social status of American Indians due to the alienation of 90 million acres of tribal land at the beginning of the 20th century. Tribes continue to seek trust status for their lands; the Obama administration took over a half million acres of land into trust for tribes. Still, only about 8 percent of the 90 million acres have been restored.
Tribes take land into trust to preserve their cultures, develop economically, provide housing and social services, and protect the environment. For example, the Gun Lake Band has used the lands taken into trust to build the Gun Lake Casino and to host traditional community activities, including pow wows and Anishinaabe language classes.
While some may criticize tribes for gaming, casinos often generate jobs and economic benefits that extend to local communities. In the first six months of 2017 alone, the Gun Lake Band shared $6.7 million in casino revenues with state and local governments. Local public schools have used this money to fund activities, averting the threat of instituting a “pay-to-play” athletics program.
Despite these benefits, not everyone supports taking land into trust. In 2008, David Patchak, who lives three miles from the Gun Lake Casino, challenged the trust acquisition for the Gun Lake Band, claiming that the casino harms his rural lifestyle. After the Supreme Court allowed Patchak’s case to go forward in 2012, the band and the secretary of the interior turned to Congress. Congress affirmed the trust acquisition by the Secretary and removed the matter from federal court jurisdiction.
Arguments about whether in doing so Congress was catering to a special interest group, or whether the tribes are a special interest group, are irrelevant here. This is how our system works: Congress makes the laws and courts enforce them. Congress cannot tell the courts how to rule in a particular case. But it makes laws and can take away the jurisdiction of the federal courts, which is what it did here. The statute survived the rigors of the democratic process, receiving almost unanimous bipartisan support with very little opposition — no easy feat in an era of polarized politics when less than 10 percent of bills make it out of committee and less than 3 percent are adopted.
The Supreme Court recently heard Patchak’s challenge to the statute, which really questions the ability of the federal government to take land into trust for Indian tribes. If the challenge is successful, the ability of the government to protect Indian lands and for tribes to preserve their traditions, build sustainable economies, and create economic opportunities for the larger community will be threatened.
The current administration frequently bungles Indian Affairs policy. In fact, as I write, the Department of the Interior is revising its regulations to make it harder for tribes to acquire trust status for their lands. That is why it is important to recognize when the administration gets something right, like it did in Patchak. Maybe the administration can learn from its good decisions and devise more informed policies that live up to its trust responsibility to Indian tribes. Until then, we can at least hope that its position in the Patchak case prevails in the Supreme Court.
Kirsten Matoy Carlson is an associate professor at Wayne State University Law School.