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Supporting tribal sovereigntythrough legislation and leadership

A leading Native American attorney, respected educator, noted author, and decorated soldier, Alan R. Parker (Chippewa Cree) helped shape and secure some of the most important laws affirming Native self-determination in the past 50 years of American legislative history. Self-determination was the rallying cry — the right of American Indian tribes in the United States to govern themselves and make decisions on issues that affect their lands, peoples, and cultures.

Ecotrust’s Lisa Watt (Seneca) and Doe Hatfield sat down with Alan after publication of his latest book, Pathways to Indigenous Nation Sovereignty: A Chronicle of Federal Policy Developments, to talk about indigenous leadership and the confluence of political will that brought about lasting and critical changes in the tribes’ relationship to the U.S. Government. The book was published earlier this year.

Why did you write this book?

I wrote the book to tell the story of how tribal leaders of the 1970’s and 1980’s were inspired to transform their world and the relationship the tribes had with the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS).

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What do you mean by “transform their world”? What were tribal leaders looking to do?

At the beginning of 1970’s, the Termination Era was coming to an end. Termination was a federal policy that was initiated in the U.S. Congress to “terminate” the federal government’s recognition of tribal nationhood rights, which called off a government-to-government relationship between the tribes and the United States government. Over 100 tribes were subject to termination; the last termination law was passed by Congress in 1965. But termination as a federal policy didn’t end until tribal leaders got together to devise a strategy to overcome it. The American Indian Chicago Conference of tribal leaders, which took place in 1961, was where the idea of self-determination emerged. So, the Chicago conference was really the springboard. Tribes were trying to make big changes because termination was such a terrible, destructive policy.

What was the relationship between the BIA and tribes at the time?

I grew up on the Rocky Boys Indian Reservation in the 1940’s and 1950’s. After I started college, I became aware of the neocolonial relationship that was imposed on the tribes by BIA officials. Tribes were required to get permission from their colonial overlords whenever they wanted to do something with their land or any initiative that involved governing themselves. As a student, I remember sitting in the back of the room of tribal council meetings in Montana. Tribal leaders talked about doing this and that, but at the end of their discussion they said, “We have to get the approval of the BIA superintendent.”

It was clear that the tribes did not have the authority to act on their own. The superintendent was the authority on the reservation and the superintendent’s boss, who was the director of the BIA regional office, reported to the Commissioner of Indian Affairs in Washington, DC. I saw early on that the BIA was a colonial system from the top down, starting with Washington, DC, and the Office of the Commissioner of Indian Affairs.

That relationship, between the tribes and the federal government, specifically the BIA, is what tribal leaders were determined to change when they embraced the idea of self-determination at the 1961 Chicago Conference. But it took a decade before action was taken within the federal government.

“It’s critical to ask how leaders see themselves and what they want to achieve. Do they have a sense of vision? That’s one of the things I’ve always admired about tribal leadership.… You could tell the people who operated from a visionary sense of what they were trying to achieve.”

When President Richard Nixon wrote, “Indian self-determination, not termination” into an address to Congress in 1970, entitled A New Day for the Indian, tribal officials came together to persuade the Congressional leadership to adopt the idea as law. It became the Indian Self-Determination and Education Assistance Act of 1975.

The law was sort of a half-measure. It authorized tribes to enter into contracts with the BIA to deliver the services that the BIA had been delivering. The process was known as “638 contracting,” in reference to the law itself — Public Law 93-638. But the contracts were written by the BIA in such a way that the BIA retained 90 percent of the control.

The tribal leadership realized what the BIA was doing and got together to discuss what to do about it. It took until 1987. I was serving as the staff director to the Committee on Indian Affairs, appointed by Senator Daniel Inouye (D-HI) when we were able to start addressing this situation through government policy changes.

Shortly after I was appointed, I was approached by Joe Delacruz (Quinault) of the Tribal Self-Governance Coalition, a group of progressive tribal leaders representing ten tribes from around the country. Joe was a forceful leader and influential with his own senator, Dan Evans (R-WA) who was vice chair of the Indian Affairs Committee. The Coalition wanted to change the system of 638 contracting to one of governmental “compact” agreements that would give tribes the control and authority they needed. That law became the Tribal Self-Governance Act of 1994.

That all may sound like some bureaucrat-eze or government rule changes, but on the ground, within reservation communities, these were very important changes that the tribes sought and achieved.

“Our political achievements and the rights we have been able to protect are considered models by others, whether you’re talking about First Nations in Canada or the Maori tribal nations of New Zealand or among other indigenous groups internationally.”

It must have been great to work on Capitol Hill then because of all the changes that you and tribal leaders were able to make.

The key people at the end of the 1970’s and through the 1980’s were the Indian Affairs committee chairs. In1977, when I started as chief counsel to the Temporary Select Committee, it was Senator James Abourezk (D–SD). Later, when Senators Inouye became chairman and Evans vice-chair, they found that they were in agreement and they supported the tribes’ efforts. They just happened to be individuals who were open to my ideas because they could see that it wasn’t just me. They could see I was speaking on behalf of the national leadership of tribes.

The vision for tribal self-governance compacting came directly from tribal leaders. It’s important to understand this history. A combination of things came together simultaneously that enabled us to pick up on a number of laws to address real problems in the world of Indian affairs. We were able to get things accomplished that have proved to be significant. Historians will agree that there has not been a comparable period since then.

Of all the significant legislation that you were involved in, which ones are you most proud of?

In addition to the Tribal Self-Governance Act that I just described, there are the Indian Child Welfare Act (ICWA) and the American Indian Religious Freedom Act. I am proud we were able to get both laws passed in 1978. The ICWA has been very important in giving tribes the opportunity to intervene in child custody proceedings whenever a child is a member of their tribe. It was a law that really needed to be done to address the widespread theft of Indian children that was taking place. I feel like this law was a really important step forward.

The American Indian Religious Freedom Act (AIRFA) recognized that traditional religious practices of Native people should stand on par with the established Christian churches under First Amendment law. Before we could get the law passed, though, we had to make a very important change at the last minute. We had to remove language that intended to give Native people the right to bring any lawsuits in federal court against those who violated their religious practices and sacred sites on public lands. Senators at the time were more concerned about energy and commercial development. The Indian Affairs Committee chairmen Jim Abourezk (D-SD) and Mo Udall (D-AZ) from the House side concluded they couldn’t win a floor fight over this issue and that there would be opportunity to insert this provision in the future, but that has never happened. If you tried to get this law passed today the opposition from energy and agri-business corporations would be overpowering.

“The vision for tribal self-governance compacting came directly from tribal leaders. It’s important to understand this history.”

What were the most successful laws you worked on, on behalf of Indian people?

The Tribal Self-Governance Act and the Indian Gaming Regulatory Act of 1988 are the most successful laws we worked on. We were able to change the 638 contracting system by starting with a two-year demonstration project that authorized a group of ten tribes to enter into compact agreements instead of contracts with the BIA. This isn’t something that rises to the top in peoples’ minds today, but it changed the 638 contracting laws that were implemented by the BIA under the Self-Determination Act of 1975.

The BIA approached this new law as if tribes were independent contractors. The Tribal Self-Governance Coalition declared, “We are not contractors, we are sovereign governments.” We changed the rules the BIA operated under and streamlined the process to make it possible for the tribes to take over government services on the reservations. It was a whole new way to do business. At the end of the two-year demonstration period, we adopted the Tribal Self-Governance Act in 1990. This became permanent law in 1994.

It was a very significant law in terms of what we achieved. Today, over 300 tribes have entered into self-governance compact agreements with the federal government. The BIA now is a shadow of its former colonial self since BIA employees have been replaced by tribal employees operating under these compact agreements. The BIA still believes that the Self-Governance Act infringes on their responsibility as Trustee. If it were up to the BIA, this law would be repealed and they would take over the authority and power they had before the law was changed in 1990.

The Indian Gaming Regulatory Act (IGRA) rose out of this struggle. This was a tribal initiative, not something imposed on the tribes. The gaming act grew out of California v. Cabazon Band of Mission Indians, a case that went before the U.S. Supreme Court with the decision handed down in 1987. The Court ruled that as long as the Cabazon Band was engaging in gaming activities within the boundaries of their reservation, they were out of reach of state regulation.

I was staff director of the Senate Indian Affairs Committee at the time. Senators from western states told us that they wanted the court’s decision overruled by legislation. They were fearful the tribes would engage in activities that were just like Las Vegas casinos. It was clear that the states had to have a role. So, we added a provision in draft legislation that required tribes to negotiate with the states for compact agreements. The states could not refuse to enter into a compact unless they could demonstrate threats to public safety or other negative impacts. Good faith was the rule that the states had to follow.

Today in 2018, over 250 tribes have entered into gaming compacts. Collectively, tribal casinos generate over $30 billion in revenue annually. The IGRA law opened the door for tribes to engage in business activities that would generate revenue for them to invest locally and create a tribal economy. The only restriction in the law is that tribes have to retain 100 percent ownership of their casinos. The tribes only reluctantly agreed but they finally came around.

Ecotrust Indigenous Leadership Award honorees, awardees, and jury members gather at the 2012 Indigenous Leadership Award Ceremony. Alan Parker (bottom row, far left) served as a member of the jury, which selected the Awardees.

What are the main takeaways for young or emerging tribal leaders who read this book?

They should understand that they have the ability to make changes in laws and create a viable economy within their tribal community. They should be aware that indigenous nations around the world look at the success of U.S. tribal nations, that our interests are represented in the U.S. Congress and in the federal government. Our political achievements and the rights we have been able to protect are considered models by other indigenous nations, whether you’re talking about First Nations in Canada or the Maori tribal nations of New Zealand or among other indigenous groups internationally. The Sami of Scandinavia have followed the developments in the United States closely and have seen what tribal leaders have been able to achieve. Most young tribal leaders may not be aware how this progress is seen by indigenous leaders around the world.

What do you think young tribal leaders need to do to prepare themselves for the future?

Before he passed away in the year 2000, Quinault Tribe President Joe Delacruz came to The Evergreen State College where I was teaching and asked me to work on a higher education program for tribal government leaders. In response, in 2002 we created the Advanced Studies in Tribal Government classes that are offered under the Masters of Public Administration Program at Evergreen. When I retired in 2014, the program was still being offered. Over 20 tribal students from around the Northwest regularly enroll and earn an MPA degree. Not all of these students go on to serve as elected tribal leaders but they are engaged in work that benefits tribal communities and the field of Indian affairs.

Beginning in 2013, some of these MPA tribal students were offered the opportunity to enter into a PhD program with the Maori University where I now serve as adjunct faculty. The Maori University was started over 20 years ago and earned accreditation from the New Zealand government to award a PhD in 2006. Our tribal students are able to design a research program that focuses on major issues facing their own tribes. I don’t think it’s everything that could be done, but I thought we were successful in designing a program of professional education for tribal students, just as Joe Delacruz had asked.

A master’s degree in Public Administration is a very useful and important credential in the world of public affairs. Other universities and colleges that have Native students may be interested in offering such a program as they learn of the success that The Evergreen State College has enjoyed with their MPA program and the emerging opportunities of working with the Maori University to earn doctoral degrees.

After all you’ve observed, what is indigenous leadership?

How people see themselves is an internal process that has to take place. It is not due to some external force. It’s an inherent quality. I think it’s critical to ask how leaders see themselves and what they want to achieve. Do they have a sense of vision? That’s one of the things I’ve always admired very much about the tribal leadership, such as Joe Delacruz, that I’ve had the opportunity to work with. You could tell the people in leadership roles who operated from a visionary sense of what they were trying to achieve.

What are the possibilities for the future?

I think that today is a time when U.S. tribal leaders should recognize the opportunities that exist outside of the boundaries of this country. They should consider the kind of international agreements or alliances they can enter into with other indigenous nation leaders to become players at the international level.

Tell us, as a young man, why did you decide to study Indian law?

I started going to law school in 1969, after I served a tour of duty in Vietnam as a soldier. I came home from the war in August 1968. The experience of Vietnam had an impact on me where I felt like I should try to do something with my life. For me, getting into law school and learning about the history of the law, I found that inspiring. It seemed that this was a field where I could engage, where I could make a contribution. I never saw law as a field where I would be professionally successful or make a lot of money. I was offered a lot of money to join private law firms but private law practice is different from public law practice. Making money wasn’t what I wanted to do with my life.

I witnessed many things in Vietnam that left big impressions on me. I learned that life is a precious gift that you are given and you need to make something of it.

Alan Parker’s new book Pathways to Indigenous Nation Sovereignty: A Chronicle of Federal Policy Developments is available through the Michigan State University Press.

A former Ecotrust board member and a finalist juror of Ecotrust’s Indigenous Leadership Awards, Alan is currently adjunct faculty of Te Whare Wananga o Awanuiarangi (The Maori Indigenous University) in Whakatane, New Zealand. In 2014, he retired from the faculty at The Evergreen State College in Olympia, Washington, where he taught in the Advanced Studies in Tribal Government Program. He served as Staff Director, Committee on Indian Affairs, United States Senate, appointed by Senator Daniel K. Inouye in 1987, and as Chief Counsel to the U.S. Senate Select Committee on Indian Affairs, 1977-1981. Alan received a Juris Doctor degree from UCLA Law School in 1972. From July 1965 to August 1968, he served in the U.S. Army and was honorably discharged with the rank of 1st Lt. Signal Corp. He was awarded a Bronze Star medal in 1968 for Outstanding Leadership Service under combat conditions in the Republic of South Vietnam.

He was born in 1942 on the Standing Rock Indian Reservation while his father served in the U.S. Navy during World War II. After he returned home, his father moved his family to the Rocky Boys Indian Reservation in Montana where Alan is enrolled as a Citizen of the Chippewa Cree Tribal Nation.