21st Century Proposed BIA Indian Land Regs In a 19th Century State of Mind

by R. Joseph Sexton, Attorney, Galanda Broadman, an Indian Country Law Firm, November, 2014 

In his famous 19th century treatise, “Democracy in America,” Alexis de Tocqueville noted that whereas the Spaniards “pursued the Indians with bloodhounds” and “sacked” the continent “with no more temper or compassion than a city taken by storm . . .” ultimately, “[t]he Spaniards were unable to exterminate the Indian race by those unparalleled atrocities which brand them with indelible shame, nor did they even succeed in wholly depriving it of its rights . . . .” By contrast, de Tocqueville notes, “the Americans of the United States have accomplished this twofold purpose with singular felicity; tranquilly, legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity.”

Apparently not much has changed in the past 150 years.

The Bureau of Indian Affairs’ (“BIA”) public comment period for proposed regulations governing “Indian lands” closes on November 28, 2014.  These proposed regulations concern “rights-of-way” over Indian lands; or, the rights of non-owners—like farmers, railroads, utility companies, and outside government agencies, among others—to access and use Indian lands.

To those who may not be familiar with federal policy over Indian lands, Tribal Governments and Americans Indian individuals can do very little with their lands without the approval of the BIA’s suffocating bureaucracy. Ironically, these are the same lands that were often promised to Tribes and their people by the federal government for their “exclusive use and benefit” in perpetuity. For anyone who has a basic knowledge of this area of law, the regulatory revisions may seem to be an effort to streamline the mind numbing bureaucratic processes Tribes and individual Indians must navigate to make even the most basic decisions regarding their lands.

But to those who has seen the absolute ineffective and often times arbitrary nature of the BIA’s bureaucracy when it comes to governing Indian lands, these regulatory revisions do nothing more than perpetuate a resilient legacy of harm to Indian Country through laws, regulations, and executive actions emanating from Washington D.C.

Indeed, it is not hyperbole to contend that the these regulations—combined with the ineffective regulatory regime that presently has a stranglehold on Tribes and individual Indians’ right to make use of their lands—will result in a continued diminishment of Tribal sovereignty and individual Indian landowner rights, which will, in turn, continue the slow but steady federal government’s suffocation of Indian Country....

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