On Oct. 7, the United States Senate passed the Native American Apology Resolution. The Senate apologized to Native Americans for the “long history of official depredations and ill-conceived policies by the federal government regarding Indian tribes.” These depredations and policies included the “forced removal” of Indians from their homelands, “armed confrontations and massacres,” theft of Native lands and resources, and condemnation of Native “traditions, beliefs, and customs.”

It is now clearer than ever that federal legislation directed at Native Americans must be viewed through the lens of history – and with a mind toward the government’s continuing regret for its past, misguided policies.

Before Columbus, Indian tribes were independent nations, with vibrant cultures and flourishing communities. Columbus brought Native American gold back to Spain, yet the agricultural products of Native American farmers – corn, beans, squash, peppers, potatoes and tomatoes – were more important than gold in transforming European culture and fueling European population growth. Native Americans were not as fortunate. European settlers brought smallpox, cholera, and tuberculosis – illnesses that devastated Native American nations.

From the beginning, Native Americans exhibited hospitality towards the newcomers. Thanksgiving is one of our oldest American traditions. Yet, in succeeding generations, American demands for land brought conflict and warfare. This tradition is reflected in the Declaration of Independence, where Thomas Jefferson accused King George of fomenting frontier warfare by Native American nations against the nascent United States.

For his part, Jefferson maintained that Americans would be fair in dealing with Indian tribes and the earliest treaty, the 1778 Treaty with the Delaware Nation, seeks to allay Native American concerns that the United States wanted to steal Indian lands. The Northwest Ordinance of 1787 pledges that the United States will observe the “utmost good faith” towards Native American peoples, promising that “their liberty and property will never be invaded. …”

Nevertheless, history shows that the U.S. was determined to acquire Native American lands, whether by treaty or warfare, with or without the consent of Indian tribes. For the first 90 years of the Nation’s history, the United States maintained at least the semblance of respect for Native American land rights through treaty making.

Yet, in the 1880s, the United States attempted to “civilize” Indians by allotting their lands and encouraging their assimilating into the mainstream economy and culture. While missionaries concentrated on converting Native Americas to Christianity, western ranchers, miners and developers concentrated on seizing Native American lands. The Supreme Court put its legal stamp of approval on the land grab by postulating that the United States was acting in a trust capacity toward its Native wards when it sold their lands to whites.

From 1887 to 1934, Indian tribes lost 90 million acres of land to the so-called “allotment” policy, where Indian tribal lands were parceled out to individuals and then the individual Indians were quickly defrauded or coerced into selling. More tribal lands were sold as “surplus” despite the objection of Indian tribes based upon the Supreme Court’s authorization to the United States to act for the benefit of Indian tribes by transferring their land into money (at rates far below market value). In 1928, the Merriam Report found that these policies had devastated Indian tribes, leaving Native Americans terribly impoverished after losing two-thirds of the acreage and 80 percent of the value of remaining Indian lands during those years.

Against this background, President Franklin D. Roosevelt was determined to stop the injustice and help Indian tribes restore their communities. The Indian Reorganization Act is the New Deal for American Indians. The IRA encouraged Indian tribes to reorganize and revitalize tribal governments, to establish tribal development corporations to rebuild tribal economies to replace traditional tribal economies destroyed by warfare and Federal land policy, and provided for the reacquisition of land in Federal trust status for Indians and Indian tribes. Roosevelt recognized that the tremendous loss of land that Indian tribes had experienced was one of the root causes of the devastating poverty on Indian reservations, and his Administration intended to address the awful injustice done to Indians who were left landless by historical Federal policies. For 75 years, the Secretary of the Interior used his authority to acquire land in trust for Indian tribes to help restore

In Carcieri v. Salazar (Feb. 24, 2009), the Supreme Court held that the secretary’s power to take land into trust for Indian tribes did not extend to Indian tribes not under federal jurisdiction when the Indian Reorganization Act was enacted in 1934. Presumably, that includes Indian tribes who were “state recognized” but not federally recognized Indian tribes. The Supreme Court’s decision was wrong – the IRA was not clearly limited and the Interior Department had used its authority under IRA for 75 years. This long-standing usage should have been continued.

The Supreme Court’s decision was morally wrong. We know that all Indian tribes were here before the United States and had ample land for their people. Yet, through warfare and dispossession, the United States has left many Indians and tribes with little or no land at all. That truly shocks the conscience – Native peoples of the United States completely dispossessed.

Thankfully there is a clear avenue to correct the Supreme Court’s erroneous decision: A technical correction to IRA. Sen. Byron Dorgan, D-N.D., has introduced S. 1703 to extend the Interior secretary’s authority to acquire Indian lands for all tribes. This fulfills the promise of the Federally Recognized Indian Tribe List Act of 1994, where Congress promised not to disadvantage any Indian tribe. The bill is a laudable measure and deserves the support of all Americans who support justice.

Regrettably, this important measure of justice has been caught up in misunderstanding by opponents of Indian gaming. The measure does not promote Indian gaming. Before any Indian tribe can conduct gaming on lands acquired after 1988, it must comply with Section 20 of the Indian Gaming Regulatory Act.

Section 20 sets forth a rigorous process that generally requires consultation with state, local and nearby tribal governments and concurrence by the state governor in a determination by the secretary of the Interior that Indian gaming would benefit the Indian tribe without interfering with state, local and nearby tribal communities. In short, opponents of Indian gaming have ample opportunity to prevent gaming on newly-acquired lands.

S. 1703 is not about gaming. It is about restoring tribal land bases so tribes can provide for their people and address basic community needs, such as housing, economic development, and maintenance of traditional cultural practices.

For those who understand the history of the United States and support justice for Native peoples only one outcome is appropriate: passage of S. 1703 to ensure that all Indian tribes have at least some land.

Steven J. Gunn is a professor of law (adjunct) at Washington University in St. Louis School of Law, where he teaches courses on American Indian law and directs the American Indian Law Externship Program. He has practiced in the field of Indian law since his graduation from Yale Law School in 1995.

Hugs,

Myrna