Supreme Court Ruling Puts Focus on Slow Path to Progress for Native Americans

In an age of growing global protests against racial inequalities, last week’s U.S. Supreme Court decision to classify about half of Oklahoma as a Native American reservation put a spotlight on the economic, health and educational disparities that countries’ indigenous peoples still face around the world.

A 2009 U.N. report, for example, chronicled the widespread poverty, unhealthy living conditions and food insecurity that indigenous peoples face in the United States, Canada, Latin America, Australia, New Zealand and throughout Asia. A decade later, however, little progress has been made. A World Bank report published at the end of 2019 notes that the 476 million indigenous peoples in 90 countries make up about 6% of the global population, but account for 15% of the world’s extreme poor.

In Canada, a June 2019 government report stated that the deaths of thousands of indigenous women in recent decades constituted genocide and was the result of discrimination and the government’s failure to protect First Nations people. And last February, Australian Prime Minister Scott Morrison conceded that his country’s national policies to improve indigenous inequalities had failed and needed to be replaced.

Those inequalities, including restricted access to national health care systems, make indigenous communities around the world especially vulnerable to the impacts of natural disasters and disease outbreaks such as the current COVID-19 pandemic, the World Bank report said.

Still, this may be a pivotal time for activists pushing back against systemic racism against Native Americans. The Supreme Court’s 5-4 ruling on June 9 decided whether lands of the Muscogee (Creek) Nation remained a reservation after Oklahoma became a state. The decision came days after a federal judge ordered the Dakota Access pipeline to be shut down, a major victory for Native American communities that raised environmental concerns the pipeline posed to tribal lands. And on Monday, Washington, D.C.’s NFL team announced it would change its nickname, a move activists have sought for decades to eliminate the team’s use of the racial slur.

U.S. News & World Report spoke with John Echohawk, executive director of the Boulder, Colorado-based Native American Rights Fund. The 74-year-old Echohawk, a Pawnee, co-founded the NARF in 1970 after becoming one of the first U.S. citizens to graduate with a law degree focused on Native American law. Today, NARF also has offices in Washington, D.C., and Anchorage, Alaska, has a staff of 35 employees, including 18 ½ full-time attorneys operating on a $12 million annual budget. Echohawk discussed the significance of the Supreme Court’s Oklahoma ruling, and the slow, sometimes tortured path to progress for Native Americans.

The interview has been edited for length and clarity.

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Can you put into historical context how significant the June 9 Supreme Court ruling concerning Oklahoma is for Native American rights?

The Creek Nation treaty was the first one (signed with the U.S. government) so this has been an issue going on and on for all these years. The question is, what’s the reservation’s boundaries? Is it still intact? Has it been set in treaties or has it been changed by Congress? The Supreme Court answered that — a treaty is a treaty. It stays in effect until Congress changes it with explicit language. That never happened, so the boundaries are still intact.

Do you anticipate the ruling having a spillover effect across the country?

With 564 tribes across the country, there are plenty of disputes about boundaries and jurisdictions. So this (the Supreme Court ruling) is another legal precedent that talks about the clear rules you would use to analyze whether a boundary has been diminished or not. There are probably some cases out there that benefit from this clarification.

What type of cases does your organization typically focus on?

We have an all-native board of directors and there’s no way we can undertake to represent all of the tribes, organizations and individuals that call us needing representation, so we have to be very selective and strategic. Our board has set up some priorities for us to follow. There are five and they’re on our website: protection of tribal existence; protection of our tribal natural resources; protection of our human rights; holding the government accountable to the treaties and laws they passed to benefit us; and fifth, develop Indian law and educate the public about Native American law and policy.

Can you discuss the development of the federal government’s Native American policies?

That basically requires a history lesson and it starts with 1492 and the first contact (between Europeans and native tribes). The European nations eventually came to realize tribes are nations, so they started resolving these issues through treaties. This practice found its way into the U.S. Constitution in 1787, and Congress was given the authority in Article I to deal with various sovereigns, foreign nations, the states and the tribal nations. And so we started entering into treaties … hundreds of treaties.

Those treaties had resolved plenty of conflicts and land issues. But in 1871 the U.S. House of Representatives became jealous of the U.S. Senate because they were the ones conducting Indian affairs — the treaties could only be changed by the Senate. So Congress passed a law saying from now on we’re going to deal with tribes through federal law.

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Federal Indian law and policy began developing in the 1880s and Congress thought it was wise to start assimilating and breaking up tribes and making them live like white people. One of the main ways they did that was to do what they call “allotment” … to take the tribal nations and reservations and take that land and divide it up and give individual tribal members the parcels of lands — allotments.

What they didn’t give to individual tribal members they would open up for settlement by non-Indians to come onto those reservations and buy that land and live among the Indians. Over the years this patchwork land ownership pattern was called checkerboard reservations. This didn’t happen to all of the tribes, it happened to some of the tribes and one of them was the Creek Nation. The tribes lost about two-thirds of their lands through that process, and basically the tribes became destitute.

That takes us into the 20th century. How did U.S. federal policy for Native Americans change?

After the Great Depression the U.S. (government) realized that allotment policy was a mistake and so they stopped it and passed the Indian Reorganization Act, which started recognizing tribal governments and the right of tribal governments to run tribal affairs.

That went on for about 20 years and then the politics of the 1950s came along and some people thought Indians living in their communal societies were too much like communists and they needed to be done away with, so they started terminating tribes — taking their land, selling it, moving Indians to the cities to be assimilated. This happened to about 100 tribes beginning in the ’50s. And of course they didn’t ask the tribes about that, they just did it.

So in the 1960s and during the civil rights movement, our people started fighting back, complaining about this practice. In 1970 under President Nixon, he announced a national Native American policy that stopped termination and started recognizing tribal self-determination — the right of tribal nations to exist and manage their own affairs.

So for the last 50 years that policy has stayed in effect and we have basically changed things. Our socioeconomic conditions are much better but still not as good as most people and we’re still among the poorest of the poor. It’s kind of a patchwork situation where some tribes do better than others.

Has there been any lingering effect of trying to separate nations?

Along the way, as you might guess, this was one of the first issues our board of directors had us address. One tribe, the Menominee Nation in Wisconsin, took their situation back to Congress and explained how that decimated their tribe, and asked Congress to admit they were wrong and to restore the Menominee Nation and their lands, and they did. And other tribes followed in their footsteps — those terminated tribes all went back (to their lands), one after another and all got restored. So Congress corrected its mistake.

What are the greatest challenges facing Native Americans today, or is it even fair to try to lump all tribes as suffering the same issues?

Different tribes have different issues. A lot of the challenges are lumped into those five priority issues that I mentioned. Overall, things are getting better. A lot of the reason for that is people understand we’re still here. They just don’t know about us but they’re learning about us. They’re learning that the United States is made up of federal government, state government and tribal government.

What’s your take on how the news media frame Native American issues? Is the reporting helping public understanding or is it playing into stereotypes?

As you can guess, oftentimes it’s not accurate because this is pretty complicated stuff and not all journalists know it. So we’re always trying to help out there. To move that along we’ve been working with the Native American Journalists Association to get out media guides to serve as a resource for journalists. One of the things they did that we helped on was to get the media ready for this U.S. Supreme Court decision that came out last week.

How do the number of Native American lawyers compare today to when you started in 1970?

I graduated in 1970 and I was one of the first Native American lawyers — there were only about two dozen nationally back then. But through the 1967 War on Poverty, the federal government recognized the lack of Native American professionals — law and medical students. It started providing scholarships for Native Americans to go to law school and medical school. Today, we have about 2,500 Native American lawyers. It also resulted in the University of New Mexico law school where I went and the other scholarship students started, having those professors develop one of the first courses taught about federal Indian law.

We (Native American communities) could see the need for lawyers. But we didn’t have them because we were poor. That’s why we started the Native American Rights Fund, to get lawyers out to our people. It’s really changed everything. And now this Indian law business is big business. Lots of law firms have Indian law practitioners. A lot of big firms are involved … it’s really changed everything.

Finally, can you provide some sense of context about the age the U.S. is in now?

With the Black Lives movement and the focus on racism, those issues involving our people have come up. Of course, the name change of the Washington NFL team is a good example of that now. More and more people are paying attention to our issues.

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