"My colleague Steve Newcomb has pointed out that we need not accept “the way things are” when things are completely irrational. Federal Indian Control Law (Robert Odawi Porter’s phrase) tells us tribal governments and individual Indians were wards of the federal government. Whether we agreed to be wards or it was thrust upon us, we need to think about that status.

Most wards grow up and become full citizens, responsible for their own decisions. The exceptions are persons suffering from physical or mental disabilities such that they will never be competent to manage their own affairs. Which kind of ward are Indian nations?

Elouise Cobell’s lawsuit reminds us that the federal guardian has not been faithful to a guardian’s duties, because the most basic duty is keeping track of the ward’s property. The Navajo Nation lost a lawsuit where the guardian’s actions were more than merely negligent. The tribal government negotiated a lease agreement and the federal government, apparently acting in concert with the lessee, pushed the tribal government to reopen negotiations and accept less money. In over 20 years on a state court bench, I have never seen such an outrageous breach of trust.

The recognized powers of tribal governments have been expanding ever since the colonists abandoned termination and relocation as Indian control policy. Many powers are seldom used. Few tribes issue revenue bonds, or charter corporations, or maintain a tax base independent of the U.S. Too many tribal laws ape state laws for no reason beyond convenience.

If we want to quit being wards, our governments must step up and govern. That means not just using power but being responsible to tribal citizens for bad outcomes in independent and honest tribal courts. Sovereign immunity runs against your own people only if you choose to assert it. Tribal governments should think twice about that assertion, unless they are comfortable being “wards.” There are names for the act of exercising power without responsibility, none of them complimentary."

Get the Story:
Russell: When can we blame the victims? (Indian Country Today 7/2)

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