Fifty years ago, President Ford signed the Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975, proclaiming “a milestone for Indian people” that would give them a “stronger role” in setting goals and initiatives in matters that concerned them. Has that come to pass? Unfortunately, Ford’s statements at signing presaged the continued role of the federal government in “implementing” that self-determination and in “sharing” responsibility in managing resources. Thus it is that today, although Indian nations refer to themselves as sovereign, federal bureaucracies are still involved in virtually every aspect of life in Indian Country.
Tribes have been struggling for self-determination for many long years. Historians recall how in the summer of 1877, amid a gold rush and a series of treaty miscommunications, the Nez Perce and their leader, Chief Joseph, were driven from their homeland of the Wallowa Mountains in Oregon and relocated to a reservation in Idaho one-tenth the size of what the tribe was promised. After refusing to comply and being attacked by the Army, Chief Joseph and eight hundred men, women, children, and babies traveled 1,200 miles hoping to escape to Canada, where they might have freedom. After evading the cavalry through mountain ranges and blizzards for over four months, they were captured forty miles from the border.
Forced back to the reservation, Chief Joseph lamented the oppressive controls placed upon his people by the federal government. In 1879, he demanded freedom with the following words:
Let me be a free man, free to travel, free to stop, free to work, free to trade where I choose, free to choose my own teachers, free to follow the religion of my fathers, free to talk, think, and act for myself—and I will obey every law or submit to the penalty. Hin-mah-too-yah-lat-kekht has spoken for his people.
The Self-Determination and Education Assistance Act came along almost a hundred years later. Self-determination still falls short of true sovereignty, and Chief Joseph’s call for freedom remains unheeded.
Guardians of the incompetent and incapable
The freedom Chief Joseph was seeking was not like that sought by slaves seeking to be free of their owners; he was seeking freedom from the colonial bondage of the federal government. This bondage was formalized in 1831 with the case of Cherokee Nation v. Georgia. In it, Justice John Marshall declared that “They [Indians] may, more correctly, perhaps, be denominated domestic dependent nations. . . . They are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”
The essence of self-determination was further diluted when the US government authorized the Bureau of Indian Affairs (BIA) to determine how land ownership would be defined and which Native Americans were worthy of owning land. Arguing for the General Allotment Act, or Dawes Act (1887), Senator Henry Dawes claimed that Indians had not “got as far as they can go because they own their land in common, and under that [system] there is no enterprise to make your [land] any better than that of your neighbors.”
Dawes’ bill mistook tribal land ownership institutions based on informal norms and customs as “communal” and replaced these arrangements with rectangularly surveyed parcels formally allotted to heads of households. The allotments were to be held in trust for seven years and, thereafter, title was to be issued in fee simple. To further hold Indians under the control of federal guardianship, the Burke Act of 1906 declared Indians to be “incompetent and incapable” and thus unqualified to hold private title until deemed otherwise by the BIA. This policy helped the BIA to control which parcels remained under trusteeship and which were privatized and transferred to non-Indian owners after Indian allottees were declared “competent” and allowed to sell their land.
Land allotment was part of a bundle of federal policies aimed at assimilation, which attempted to make Indian “wards” conform to European-based laws and customs. Policy makers thought top-down cultural suppression, rather than bottom-up self-determination, would create more wealth and happiness for assimilated Indians.
The resulting policies worked through carrot and stick. By offering the promise of land ownership and wage earnings, policy makers thought families would naturally prefer Christianity and to educate and train their children in white American schools. More coercive policies complemented these incentives: the BIA penalized cultural expressions through bans on traditional dress and hairstyles at Indian boarding schools and bans on Indian ceremonies such as the Sun Dance and potlatch.
The “success” of these assimilation efforts was meticulously documented by a federal bureaucracy that persists to this day. For example, the 1912 annual report of the Office of Indian Affairs noted that 149,721 of 193,609 Indians wore “modern attire”; that 69,529 of 177,401 Indians had professed Christianity; that 90,341 of 184,784 Indians spoke English; and that 78,543 of 186,398 Indians were citizens of the United States. In short, self-determination based on tribal customs and norms was replaced by federal bureaucratic control throughout the nineteenth and early twentieth centuries.
Puppet governments
In 1934 the Indian Reorganization Act (IRA) was passed to end allotment and other blatant assimilation policies. The act ostensibly sought to restore tribal sovereignty by encouraging tribes to build their own formal governments to operate within the US federalist system. In practice, however, the IRA established puppet governments under the thumb of a heavy-handed BIA. Only a handful of tribes that successfully rejected the IRA blueprint carved some autonomy in governance, however limited.
The IRA fell short of truly empowering tribal institutions for two main reasons. First, while the act did recognize the right to govern, a heavy-handed BIA imposed on tribes having varying traditions and histories a single blueprint for governing constitutions and charters. Second, while the IRA recognized the damaging effects of allotment, it declared that lands not yet privatized would remain under federal trusteeship rather than granting underlying title to tribes, thus solidifying a continued role for the BIA.
Whereas previous policies pushed cultural assimilation through Christianity and land allotment, the IRA pushed cultural assimilation by delineating governance structures from the top down and adding layers of bureaucratic oversight. According to one account from tribal government meetings during the 1940s and 1950s, the “Indian service personnel consider the new tribal governments . . . mere advisory bodies to the Office of Indian Affairs.” This oversight continued through the 1970s.
Statistical comparisons by economists Dustin Frye and Dominic P. Parker reveal three effects. First, annual BIA press releases through 1980 indicate that BIA involvement in tribal projects was 42 percent higher on reservations with IRA constitutions. Second, the long-term effect of this oversight was to suppress economic development. From 1940 to 1980, per capita incomes on reservations governed by IRA constitutions grew, on average, 12 to 15 percent less than incomes on reservations where tribes were able to choose their own governing systems. Third, there was more variation in economic growth within the subset of tribes choosing their own governing systems. While IRA governance limited average growth, the paternalism embedded within it at least provided a safety net for tribes to avoid complete economic collapse.
In summary, federal oversight of tribal governance under the IRA suppressed tribal discretion and rewarded tribal leaders who learned to successfully navigate federal regulations. This oversight limited economic well-being, keeping poverty the norm on the average reservation. Though IRA governance reduced some downside economic risk that naturally comes with sovereignty and self-determination, it did so at the cost of keeping most American Indians in poverty.
Self-determination in law and practice
A series of policies over the past fifty years, beginning with the 1975 self-determination act signed by President Ford, incrementally gave tribes more control over reservation affairs. During this era, tribes began to transition from being viewed as merely administered communities to more autonomous governments that can, among other things, operate casinos and more freely determine how natural resources are used. For example, the Indian Gaming Regulatory Act of 1988 ushered in casino gaming as a new source of income; annual revenues now exceed $41 billion.
True sovereignty and self-determination should allow tribes to make their own choices and bear the consequences, positive and negative. But this is more control than Ford conceded when signing the 1975 act emphasizing a “sharing” of responsibility with tribes. Such terms contradict the notion of sovereignty; sovereign entities do not need to wait for another government to implement shared governance.
The limits of self-determination in practice are laid bare by the fact that the US government is still trustee for 56.2 million acres of reservation land under nineteenth-century laws that deemed Indians not to be “competent and capable.” Because of trusteeship, the Department of Interior remains involved in nearly every aspect of Indian life, especially decisions about land use for energy or agriculture. It is also one reason for persistent poverty: several economic studies, including our work, conclude that more trust land on reservations leads to lower productivity and lower income.
Regulations delay and prevent energy development in Indian Country despite self-determination laws. Energy leases on trust land cannot be conveyed without involvement of the BIA. As a result, trusteeship has delayed mineral and oil and gas leases by creating bureaucratic obstacles and discouraging mining and drilling on reservations. On the oil-rich Fort Berthold reservation in North Dakota, forty-nine regulatory steps were required to get an oil lease. Off the reservation, there are only four.
Self-determination laws have done little to ensure that tribes can benefit from enormous recent federal expenditures such as the Infrastructure Investment and Jobs Act (IIJA) of 2021. As former Navajo president Jonathan Nez notes, Indian Country is in desperate need of infrastructure. To him, the infrastructure on the Navajo Nation “looks like it’s 1921—not 2021.” Forty percent of families live without running water or sanitation. Eighty percent of roads are unpaved and are impassable mud bogs in the rain. Yet, despite the IIJA setting aside $13 billion for tribal governments, the money has thus far had limited impact in Indian Country.
Red tape is to blame. As Nez put it, “the BIA acts as if it were still 1921—and strangles us with red tape anytime we attempt to improve conditions on our land.” Nez further notes that tribes also must duplicate compliance efforts to get any project approved, adding time and expense to infrastructure investments.
It is the same story for the execution of the Inflation Reduction Act (IRA) of 2022, which spent billions to fund what the Biden administration considered clean energy projects. Tribes are eligible for a big slice, but despite strong wind and solar potential, research shows that Indian Country is far less likely to host wind and solar farms when compared to suitable neighboring lands. One of the biggest hurdles is the complexity and uncertainty of the permitting process—for building both the facilities and the transmission lines that would feed energy into the power grid. This regulatory jumble makes energy projects almost as uncommon as where they are forbidden, such as in public parks, forests, and wildlife refuges.
Rewards, risks, and the future
Tribes do have important sovereign powers, such as determining who is a tribal citizen and regulating and adjudicating certain civil and criminal matters. However, not only are most decisions in Indian Country still made under the watchful eye of federal authority, but also tribes have little taxing authority over non-Indians and over fee-simple land. Financial dependency means tribes rely on grants from an alphabet soup of federal departments including DOI, DOT, DOC, DOE, HUD, HHS, ED, USDA, and EPA. The lack of authority and jurisdiction, especially over taxation, limits their ability to prosper and achieve financial self-sufficiency.
Fear of downside risk helps explain why some tribes and their citizens are reluctant to push for full sovereignty, that is, elimination of federal trusteeship in exchange for tribal jurisdictional control. Federal oversight and grants provide crude security if true self-governance does not pan out. However, as the recent change in presidential administrations has shown, even federal grants to Indian Country are volatile and not guaranteed.
Results from the “reservation economic freedom index (REFI)” developed by economist Thomas Stratmann align with other studies of Indian Country and international economies to show that self-governance is necessary for prosperity.
Fifty years after the ISDEAA was signed, it’s time for tribal governments and their citizens to cut the bureaucratic “white tape.” Sovereignty may not be enough to bring prosperity and freedom to every Native American, but without it, dependency and poverty will prevail.
