U.S. Commission on Civil Rights Releases Report: Broken Promises: Continuing Federal Funding Shortfall for Native Americans

News Release from US Commission on Civil Rights, Dec 20, 2018

WASHINGTON – Today, the U.S. Commission on Civil Rights released its report, Broken Promises: Continuing Federal Funding Shortfall for Native Americans. The Commission majority found that the federal government is not meeting its trust responsibilities, and that budgets and spending of federal agencies sponsoring Native American and Native Hawaiian programs, including the Departments of Health and Human Services, Interior, Housing and Urban Development, Justice, and Education, are inadequate.

Prompted by concerns raised by Native American communities and Members of Congress, Broken Promises updates our 2003 report, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, which similarly evaluated expenditures of federal agencies on Native American programs. Broken Promises, based on expert and public input, and extensive research and analysis, offers actionable recommendations to the President, Congress, and agencies to meet the federal government’s trust obligations.

… (skip 10 paragraphs dealing with mainland Indian tribes) …

Key recommendations from the Commission majority include:

… (skip 3 paragraphs dealing with mainland Indian tribes) …

• The Commission also reversed its previous opposition to federal recognition of Native Hawaiians. Congress should pass legislation facilitating the reorganization of a Native Hawaiian governing entity and to confirm the special political and legal relationship between the United States and such an entity.

In February 2016, the Commission held a public briefing on the subject, hearing from a broad range of panelists. Their testimony, along with that submitted by members of the public, played an integral part in informing this report.

In addition, the Commission considered evidence from federal officials, tribal officials, community leaders and advocates, scholars and researchers, and legal experts; official visits to Standing Rock in North Dakota, Pine Ridge in South Dakota, and the Quinault Nation in Washington; and activities of our state Advisory Committees, among others.

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Report: Broken Promises: Continuing Federal Funding Shortfall for Native Americans

From US Commission on Civil Rights, Dec 20, 2018 (approved 6-2)

(In a 217 page report on Native Americans, there is one ‘Finding” and one ‘Recommendation” addressing the Akaka Tribe.) 

Findings pg 204

G. The federal government does not have an official government-to-government relationship with the Native Hawaiian community. However, Congress has acknowledged the role of the United States in the overthrow of the Kingdom of Hawaii and the annexation of Hawaii without the consent or compensation of Native Hawaiians. Congress has passed over 150 laws that promote the welfare of Native Hawaiians and establish a special political and legal relationship with the Native Hawaiian community similar to the trust relationship between the United States and Native Americans. In 2016, the federal government finalized an administrative rule that allows a unified Native Hawaiian government (if established) to enter into a formal government-to-government relationship with the U.S. government….

Recommendations pg 216

B. Congress can acknowledge a government-to-government relationship with Native Hawaiians to confirm its intent to provide Native Hawaiians at least all the same federal benefits that Native Americans have. Congress should pass legislation to provide a process for the reorganization of a Native Hawaiian governing entity and to confirm the special political and legal relationship between the United States and such Native Hawaiian governing entity…

read … Full Report

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Dissenting Statement of Commissioner Gail Heriot (p 219-233--excerpt)

This report should not be viewed as any sort of legal or policy analysis. It is more in the nature of a command political performance. A number of Members of Congress were familiar with a report the Commission did in 2003 when Mary Frances Berry was Chair of the Commission. With great dramatic flair, that report—entitled A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country—charged the federal government with spending too little on benefits for Native American tribes. Several members, led by Derek Kilmer, who is Vice Ranking Member of the Committee on Appropriations, essentially asked for an encore performance of that report. With this one, the Commission is complying with that request, updating some of its statistics.

But here’s the one problem: The Commission and its staff, as currently constituted, have precious little expertise in Indian law (which is the name ordinarily given to the body of law governing relations among the federal government, the fifty state governments and the various tribal governments).1 That body of law requires a thorough knowledge of the constitutional law of federalism. It bears little resemblance to equal protection law and to the anti-discrimination statutes that are the core areas of our expertise.2

The report quotes a number of sentences from well-known Court decisions in an effort to sort out (or at least appear to be sorting out) the law in this area. But to my ear at least, it comes off like an occasional churchgoer reciting the Nicene Creed—oblivious to the degree of controversy and ambiguity, both historic and contemporary, that is packed into its phrases.

I tend to agree with Justice Clarence Thomas about Indian law: It is in need of a careful reexamination. As he stated in United States v. Lara, 541 U.S. 193, 214 (2004), “the time has come to reexamine the premises and logic of our tribal sovereignty cases.” It is riddled with logical contradictions and misleading metaphors.3 But I can’t sort it out in this report, and neither can the Commission or its staff.

Alas, because this report has been pushed through on an accelerated schedule with Commissioner Statement deadlines running concurrently with other reports, I have time only to address only one aspect of it: Its endorsement of the proposed Native Hawaiian Government Reorganization Act, which would authorize the federal government to facilitate and fund the formation of a Native Hawaiian tribal entity. Unlike most of the other issues addressed in this report, this one really is up the Commission’s alley, since it is an effort to use Indian law to circumvent the requirements of the Fourteenth and Fifth Amendments’ equal protection provisions by attempting to transform a racial/ethnic group into a tribe.

Before I do that, however, let me comment very briefly on the report more generally. I am mostly in agreement with Commissioner Kirsanow about the source of the problem here: Since the days of Franklin Delano Roosevelt, American policy has been to facilitate communal ownership of property and to deal with Native American individuals through tribal governments rather than as individual American citizens. For the most part this has worked poorly.4 Commissioner Kirsanow calls it socialism and expresses concern over the many limitations on the ability of tribal members to control their own destinies. I can’t say that I disagree. In some parts of Indian Country (though certainly not all), it has evolved into a culture of dependency where it is assumed that the answer to every problem is more assistance from the Federal government. However much one might believe this approach should work, it won’t. 5

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In 2006, the Commission (whose membership was different then) issued a report opposing the proposed Native Hawaiian Government Reorganization Act. The current Commission evidently hopes to send that report down the memory hole.

In the original report, the Commission wrote:

“The Commission recommends against the passage of the Native American Government Reorganization Act … or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.”6

With this report, the Commission comes to the opposite conclusion. Unlike the previous Commission, however, this one took no evidence on the issue. Knock me over with a feather if the Commissioners and staff put one-tenth of the effort into Hawaiian issues that was put into the earlier report.

The first question that should come to mind after reading the current report is this: Why is the Native Hawaiian Government Reorganization Act (which usually goes by the name “Akaka Bill” in recognition that it was first put forth by the late Sen. Daniel Akaka) coming up again almost a decade after it was thought to be a dead issue?

One answer to that is that nothing is ever dead in Washington, D.C. Everything always comes back. The red tide that turned the U.S. House of Representatives Republican in 2010 was replaced on Election Day this year by a blue wave in the House of Representatives (though not in the Senate). It may well be that the Akaka Bill will begin to receive more attention on Capitol Hill than it has in recent years. President Trump has not yet taken a position on this bill, but even if he opposes it (as President Bush did), there is always the possibility of a different President being elected in 2020. In a sense, with this Report, the Commission is laying the groundwork for that possibility.

Another part of the answer is that the Obama Administration’s strategy proceeding without the cooperation of Congress simply hasn’t worked. President Obama famously declared to his Cabinet in 2014, when facing a Republican House of Representatives, "We're not just going to be waiting for legislation." "I've got a pen and I've got a phone...and I can use that pen to sign executive orders and take executive actions and administrative actions."7 During his administration, the Department of Interior went ahead and fashioned regulations without a Congressional blessing that would assist in creating a Native Hawaiian governing entity and ultimately a Native Hawaiian tribe. But these efforts have not succeeded.8

In this Statement, I will try to address why I oppose the Akaka Bill. But here is a brief summary:

Congress does not have the power to create an Indian tribe or any other entity with the attributes of sovereignty. Nor can it do so by purporting to “merely” reconstitute a tribe or other sovereign entity that has ceased to exist. Tribes are “recognized;” they are not created or reconstituted. The federal government may, on occasion, assist already-existing tribes in reforming their internal political structures, but they cannot bring into existence a tribe or other sovereign entity that has never existed or has long ago ceased to exist as a separate polity.

The federal government especially cannot take a racial or ethnic group and transform it into a tribe as a means of circumventing the equal protection requirements of the Fifth and Fourteenth Amendments. Yet that is exactly what is being attempted here.9

read … Full Statement (p 219-233)

COVERAGE: 

HNN: Report on funding for Native Americans also urges federal recognition of Native Hawaiians

SA: U.S. Commission on Civil Rights now supports federal recognition of Native Hawaiians 

Star-Adv Editorial: We Like Letting Lots of Criminals out of Prison and Starting a Fake Indian Tribe

CB: Civil Rights Panel Backs Federal Recognition For Native Hawaiians  -- The commission…is made up of eight members appointed by Congress and the president, includes four Democrats, three independents and one Republican.