Measures of Reconciliation

In December 2009, when the New York Times reported on the Obama Administration celebrating its achievement in settling royalties claims by American Indian tribes against the U.S. Department of Interior for pennies on the dollar, the misappropriated royalties from the plaintiffs' 56 million acres -- administered by Interior under the Indian Trust Fund -- were to be partially restored and distributed by year's end. As presaged in a September 2005  Mother Jones article by Julia Whitty, it would turn out to be a bittersweet victory for Blackfeet warrior Elouise Cobell.

As noted in a December 2009 article at Indian Country Today,

The willingness to settle for $3.4 billion of the estimated $47 billion stolen by the U.S. government since 1887 reflected the desperate poverty of the plaintiffs as a class, as well as the realization that it was probably the best they could do given the American political system.

In December 2010, when the Obama Administration hosted the White House Tribal Nations Conference to celebrate its belated and half-hearted endorsement of the 2007 United Nations Declaration on the Rights of Indigenous Peoples, tribal leaders were hopeful that the attacks on American Indian governments -- begun in 2004 by the Internal Revenue Service -- would come to an end. Instead, less than two years since the tribal summit, the U.S. Department of Treasury has escalated its attack on tribal sovereignty, imposing discriminatory policy on tribal governments and their citizens.

In what is possibly the most callous and cynical follow-up imaginable to the settlement of Cobell, the IRS is now trying to tax the meager benefits received by the plaintiffs after generations of unimaginable suffering by them and their ancestors -- some of whom literally froze and starved to death -- while Interior and the oil and gas companies lived lives of luxury at their expense.

As noted in the June 2012 testimony by the National Congress of American Indians to the Senate Committee on Indian Affairs, it is noted that,

In 2005, the IRS began an aggressive campaign to audit every Indian tribal government in the country and impose inequitable tax treatment on Indian tribes. In this effort, the IRS has frequently undermined longstanding principles of tribal sovereignty, tribal self-government and the federal trust responsibility and failed to respect the roles of tribal governments under the U.S. Constitution and the plain language of federal statutes.

Concluding its detailed testimony of unfair treatment of Indian tribes by the IRS, the National Congress of American Indians urged the U.S. Congress to rein in these abuses of federal authority. As observed in this testimony,

The timing of the IRS effort -- to attempt to change the law regarding taxability of trust funds at precisely the time when the United States is finally making partial compensation for many decades of trust funds mismanagement -- raises the implication of unfair dealing.

As James Warren observed in the June 2010 issue of The Atlantic,

The story turns on theft and incompetence by the Interior and Treasury Departments, with culprits including Interior's Bureau of Indian Affairs (BIA) and the same Minerals Management Service now at the center of the BP oil spill fiasco...Government officials exploited computer systems with no audit trails to turn Indian proceeds into slush funds but maintain plausible deniability.

As U.S. District Judge Royce Lamberth who oversaw the case for a decade, remarked, the whole matter is  "government irresponsibility in its purest form."

On Friday, 14 September 2012, the Subcommittee on Indian and Alaska Native Affairs of the U.S. House of Representatives held an oversight hearing to examine the dramatic shift in federal policy by the Internal Revenue Service regarding tribal distributions from trust resources under the Per Capita Act. Noting that the IRS on 6 September backed off on its claim that trust fund distributions from the settlement of Department of Interior mismanagement of Indian Trust Fund resources are taxable, tribal witnesses at the hearing made the important observation that the IRS has not backed off on its more significant claim that other trust fund distributions are.

This unilateral reversal of U.S. policy by the U.S. Treasury not only attempts to take tribal resources exempt from taxation under U.S. law, but would also establish the unprecedented situation where tribal distributions derived from these resources would now be included in income determination for federal benefits such as housing, health and education--as well as Social Security. As American Indian tribes try to raise their members from lives of poverty through self-sufficient efforts -- using their own resources -- the idea that the IRS would try to thwart these efforts is baffling.

As Athena Sanchey Yallup of the Yakama Nation Tribal Council remarked,

the IRS' attempts to tax our trust resources are simply a disingenuous money grab that our People can ill afford...The IRS' policy change perversely requires poor tribal members to pass on tribal resources to avoid taxation [and] corrupts the trustee relationship by profiting from trust resources of the beneficiary.

In the August 30, 2012 report by the UN Special Rapporteur on the rights of indigenous peoples, it is noted that flagrant violations of historical treaties constitute some of the principal wrongdoings committed by the United States towards indigenous peoples. Indeed, as Special Rapporteur James Anaya reports, plenary congressional power over the "domestic dependent nations" is out of step with contemporary human rights values.

This plenary power, exercised throughout the history of US-tribal relations, he notes, has had devastating social and economic consequences still apparent today.

Anaya goes on to say that,

the image now often popularized of Native Americans flush with cash from casinos is far from the norm. A number of tribes do have casino operations as part of economic development efforts, taking advantage of special exemptions from ordinary state regulation and taxation that are available to them under federal law. Most tribes, however, do not have casinos and, of those that do, only a handful have reaped substantial riches sufficient to significantly reduce poverty levels.

The loss of their lands by force or fraud, says Anaya, meant the substantial or complete undermining of indigenous peoples' own economic foundations and means of subsistence... Measures of reconciliation and redress, he notes,  should include initiatives to address outstanding claims of treaty violations or non-consensual takings of traditional lands and to secure indigenous peoples' capacities in accordance with the United States international human rights commitments.

Only then can we advance toward reconciliation.