By Arlinda Locklear, Esq.

Editor’s Note: This article is adapted from a presentation that Arlinda Locklear, Esq. gave at a recent conference held at the MPMRC titled “Indian Country in the New Millennium: A 50-Year Retrospective.” A brief biography of the author follows the article.

When we discuss Indian policy, we most often begin with a discussion of it in relation to the United States Congress as opposed to the Executive branch. But the role of the Presidency and its relationship with Native America has been very important from the beginning of this country’s history. As early as 1789, President George Washington made his first trip to the U.S. Senate to discuss federal Indian policy. He did this because of the importance of Indian policy to the country and his administration. His visit also marked the beginning of a long role that we still see today of the executive branch taking the initiative in the formulation of policy with respect to Indian Country.

In his address President Washington spoke about the need of protecting tribal lands, among other things. As a result of his concerns, the Congress passed a year later the 1790 Indian Trade and Intercourse Act, which required states and individuals to get federal approval for land deals and other interaction with tribal governments. So from the very beginning of the American Nation we see the importance of executive initiative in the development of federal Indian policy.

This continued through, among other means, the ongoing impact of the President’s authority, with the advice and consent of the Senate, to negotiate treaties. From 1789 until 1871, the principal basis for federal policy toward Indian nations was this series of nation-to-nation treaties. This same body of agreements remains viable today as a vital part of the rights and privileges that tribes exercise, not only in court when disputes arise, but within Indian Country as well. It is important to note the context of this ongoing interaction. Until 1849 the Secretary of War within the executive branch was responsible, while thereafter Indian policy shifted to the Secretary of the Interior. The focus went from being one of foreign policy to that of an internal matter, as the government saw it.

More recently, the executive branch has continued to take the initiative in formulating policy, whether it be the termination effort of tribal status or the more progressive and positive successor, self-determination. In the 1960s President Lyndon Johnson introduced as part of his Great Society legislation an important departure by asking Congress to include special provisions for Indian tribes to receive funding directly for the various programs like any other local government. In 1970 President Richard Nixon officially declared self-determination for Indian nations to be the new policy. Congress would follow that lead with subsequent legislation.

So in the past 50 years the pattern continued of the executive branch oftentimes taking the initiative. The activities of the President and his staff, however, are not always open or publicly known. One area in particular I’d like to stress is the development of the annual budget by the administration. The Office of Management and Budget (OMB) in the executive branch has become a very important part of the policy formation for Indian Country even though most of us are not aware of what goes on in this agency’s deliberations. The Department of the Interior, like other federal agencies, submits its proposed programs and budget to the White House and the OMB. This final step at the top determines which programs get funded. Because policy initiatives do not mean much without proper funding, this part of the process deserves closer scrutiny, particularly in times of expanding budget deficits.

Another area where the executive initiative has been of great significance for Indian tribes – an area where Congress has delegated authority through its own inaction – is the acknowledgement process. During the 1970s, a combination of land claims by eastern tribes and fishing treaty disputes involving western tribal nations prompted a reevaluation of the regulations governing the acknowledgement of Indian tribes. At the time there were approximately 100 tribes that were not federally recognized, including the Mashantucket Pequot Tribe. Congress pressed for this process review but passed no legislation, leaving the Department of the Interior to formulate new rules. The new regulations that emerged in 1978, which were modified again in 1994, were not friendly towards tribes seeking recognition.

The seven new criteria established 25 years ago have transformed what had been an informal, low-key process into a lengthy, expensive and cumbersome ordeal. In some cases it has taken as long as 15 to 20 years and cost hundreds of thousands of dollars for tribes to run this gauntlet. And yet the results can be remarkably arbitrary from one petitioning group to another. Sometimes it is hard to tell why one group was acknowledged and another not.

The system has drawn criticism from both Native Americans and Congress. A number of bills have been introduced in recent years to reform the process, including one that is currently pending in the Senate. So far there hasn’t been the political will to act on these proposals and make them the law of the land. By its inaction, Congress has ceded the playing field to the executive branch in this vital area. And it is clear that the various executive initiatives with respect to Indian Country have been both helpful in some cases and not helpful in others.

During her twenty-five-years experience in the field of Indian law, Arlinda Locklear has represented tribes all over the country in federal and state courts on treaty claims to water and land, taxation disputes with states and local authorities, reservation boundary issues and federal recognition of tribes. She is a Counsel Partner with Patton Boggs LLP. She formerly worked for the Native American Rights Fund and is a past member of the American Civil Liberties Board of Directors, a member of the Board of Directors for the Institute for the Development of Indian Law, and a member of the board of advisors for the Encyclopedia of Native Americans in the 20th Century. A graduate of Duke University School of Law, she is an enrolled member of the Lumbee Tribe of Cheraw Indians of North Carolina.