Introduction. The right of taking fish and of whaling or sealing at usual and accustomed

The right of taking fish and of whaling or sealing at usual and accustomed

grounds and stations is further secured to said Indians.

Treaty with the Makah, 18551

On May 17, 1999, several members of the Makah Nation, a small tribe inhabiting

lands near the Olympic Peninsula in Washington State, conducted the

first legal killing of a gray whale in over seventy-five years. Whaling had been

prohibited on the Northwest Coast since the early part of the twentieth century

because global commercial whaling had driven the gray whale population

nearly to extinction. The United States banned all hunting of the gray

whale in 1937. The Makah had voluntarily stopped hunting gray whales in

the 1920s because “whaling had begun to lose its social prestige and subsistence

importance as the tribes were pulled into the global market economy.”2

After the successful hunt, as excited Makah feasted on the blubber and

raw meat from the thirty-ton, thirty-and-one-half-foot-long female whale,

tribal leaders expressed pride in the resurrection of their nation’s seafaring

tradition, a tradition reserved by the Makah in their land cession treaty with

the United States in 1855. As Ben Johnson Jr., chairman of the tribe’s council,

put it: “It’s a great day, a historic day for the Makah, but there are a lot of

other hurdles we still have to jump over, many things to work on.”3 The

Makah, in fact, are the only indigenous nation that expressly reserved the

right to whale in a treaty agreement with the federal government.

One of the major hurdles for the Makah centered on how the tribe

intended to cope with the firestorm of anger, resentment, and oftentimes

racist discourse the hunt aroused among many non-Indians, particularly environmental

groups. Protestors fit into three categories: those distraught by the

whale killing, those who disapproved of how the whale was killed (the Makah

used steel harpoons and a shot from a.50 caliber assault rifle), and those who

exhibited a deep resentment, even hatred, toward the Makah in particular and

Indians in general. Protestors rained death threats and bomb threats on the

Makah, and radio stations, newsletters, editorial pages, and Internet chat

rooms carried anti-Indian statements that outnumbered statements supporting

the Makah by a ten to one margin. Comments like, “Save a whale, harpoon

a Makah,” and “shoot an Indian, bomb them, harpoon them,” were rampant.

All of this despite the fact that the Clinton administration supported the

Makah’s treaty right to whale, that the gray whale was no longer an endangered

species (worldwide nearly two thousand gray whales are killed annually

by hunters from a dozen countries), and that the International Whaling Commission

had twice given its support to the Makah to harvest for subsistence

purposes up to twenty whales between 1998–2002 and 2003–2007.

Despite the initial protests, the Makah refused at first to be stifled in exercising

one of their most culturally significant rites. As Wayne Johnson, the

captain of the whaling team, said, “Some people have criticized us for this

celebration [standing on the whale and raising their paddles and weapons in a

triumphant manner], saying that it should have been a somber event and that

2 INTRODUCTION

Makah Indians paddle their thirty-two-foot canoe Hummingbird into the open waters of the Pacific Ocean

during a practice on August 20, 1998, in Neah Bay, Washington. The Makah tribe legally hunted and killed

its first gray whale in over seventy-five years on May 17, 1999. They have since been denied the opportunity

to continue their tradition by the federal courts. Photo courtesy of AP/World Wide Photos.

we should have mourned the whale in the way they imagine to be proper. I

am so tired of non-Indians pushing their values on the Makah people and

telling us how and how not to be Makah.”5

However, the firestorm unleashed in the non-Indian community by the

Makah’s exercise of their cultural and treaty right would not subside, and in

less than a year the first of a series of legal setbacks in 2000,6 2002,7 2003,8 and

20049 against the Makah arrived, fueled by the antipathy of an alliance of

environmental and animal advocacy groups with the support of some congresspersons.

The most damaging ruling occurred in 2002, where the 9th Circuit

Court of Appeals held that the federal government had violated the

National Environmental Policy Act by having failed to prepare an environmental

impact statement prior to approving the Makah’s whaling quota. The

court also noted that the 1972 Marine Mammal Protection Act, which prohibits

anyone in the United States from harming gray whales or other sea

mammals, also applied to the Makah’s whale hunt.

As a result of this and the other decisions, the Makah have been stymied

in their efforts to pursue another whale. In 2003 the tribal government drastically

reduced their whaling budget and terminated the tribe’s whaling commission.

Tribal leaders and members are deeply frustrated that their treaty right is

being denied. But they continue to explore their options, including an administrative

waiver and pursuit of an even more remote possibility—a federal law

that would acknowledge their right to hunt gray whales.

Michael Lawrence, the Makah’s vice-chair in 2003, reflecting on the

court’s rulings and the history of Indian treaty fragility and frequent abrogation

of treaty rights, observed that “this isn’t the end for us. We are going to

continue to protect our treaty rights.”10

In carrying out its treaty obligations with the Indian tribes, the Government is

something more than a mere contracting party. Under a humane and self-imposed

policy which has found expression in many acts of Congress, and numerous decisions

of this Court, it has charged itself with moral obligations of the highest

responsibility and trust. Its conduct... should therefore be judged by the most

exacting fiduciary standards.11

I have never seen more egregious misconduct by the federal government. In my

own experience, government lawyers always strived to set the example by following

the highest ethical standards that were then a model for the rest of the

legal profession.... Justice has not been done to these Indian beneficiaries. Moreover,

justice delayed is justice denied. The Court cannot tolerate more empty

promises to these Indian plaintiffs.12

These statements center on the historically rooted trust relationship that

dates back to fifteenth century Europe, but saw its earliest expression in the

INTRODUCTION 3

United States during the formative years of the republic, when policymakers

were pledged to carry out treaty obligations made to tribes but also assumed

a protectorate role for tribal peoples, their lands, and their resources. By the

late nineteenth century Congress began to enact more forcefully and unilaterally

various policies, like the General Allotment Act of 1887, that aimed to

absorb Indians into American society by individualizing and then patenting

Indian lands into parcels of 160, 80, and 40 acres. Since federal policymakers by

this time perceived Indians and tribes as incompetent to manage their own

affairs or resources, the federal government, acting more like a guardian of the

now ward-like tribes, took complete charge of the Indians’ lands and resources.

Typically, the Department of the Interior, the lead trust agent, leased the

Indian allotments to oil, gas, timber, grazing, and mining interests for a small

fee. The income generated from these leases was then processed by the

Bureau of Indian Affairs (BIA) and then deposited in the U.S. Treasury, where

checks were then supposed to be sent to the Indians and tribal nations holding

interests in trust resources.13 However, Indians have never received all

the money due to them for lands sold to the United States and from various

lease arrangements made by the federal government, despite constant Indian

complaints and numerous investigations. As John Echohawk, executive

director of the Native American Rights Fund, who led the class-action lawsuit

filed in 1996 on behalf of over 500,000 individual trust beneficiaries,

stated, “The BIA has spent more than 100 years mismanaging, diverting and

losing money that belongs to Indians.”14

The Indian trust funds have two major components: tribal trust funds

(TTF) and individual Indian money accounts (IIM). There are some two thousand

tribal accounts owned by about two hundred tribes worth nearly 2.3 billion

dollars. This money includes lease revenues, royalties, and court settlements.

The accounts vary widely, with some worth only a few dollars, while

others, like the Sioux Black Hills court award (based on the federal government’s

taking of the Black Hills in South Dakota), are valued at over $400

million. Individually, there are over 500,000 IIM accounts into which passes

nearly $300 million annually from the leaseholders. The aggregate annual

balance of the IIM accounts is nearly one-half billion dollars.15 Untold billions

have flowed through both accounts since the 1880s, and neither individual

Indians nor tribal governments have ever received a thorough accounting

of their monies. In fact, the Indian plaintiffs assert that they have lost

upwards of $137.5 billion since 1887.

Paul Homan was appointed as special trustee for American Indians in

1994 in the wake of the American Indian Trust Management Act of that year.

He was charged with remedying the government’s mismanagement of Indian

trust accounts. Homan, who had a wealth of experience in trust management

and with failing financial institutions, engaged in a thorough investigation of

the BIA’s accounting system and found that “the record-keeping system [for

the IIM accounts] is the worst that I have seen in my entire life.”16

4 INTRODUCTION

In particular, Homan found that there was $2.4 billion (32,319 transactions)

for which no documents could be located; there was about $694 million

in unreconciled disbursements; there were 54,921 IIM accounts totaling

$44.9 million for individuals with no address or an incorrect address; and

there were 15,230 IIM accounts worth $21.8 million for individuals who were

formerly minors, the majority of which should have been disbursed when the

minors came of age. It was also discovered that the government could not

even account for fifty thousand of the active trusts. One estimate says that

the government’s efforts to pay out lost money to IIM account holders could

reach as high as $10 billion.17

Because the Department of the Interior failed to assist the special trustee

and because Congress failed to allocate adequate funds to implement the

1994 Reform Act, the Native American Rights Funds (NARF) filed a classaction

lawsuit on behalf of the IIM holders on January 10, 1996, against Secretary

Babbitt and Secretary of the Treasury Robert Rubin. NARF sought to

force the Interior Department to carry out its duties and obligations as trustee

regarding the IIM accounts. Such obligations included maintaining an

accounting system that is reliable and accurate, investing the accounts

wisely, and reporting to the beneficiaries in a timely fashion.

When the federal government said that it would respond by producing all

documents requested, but then refused to do so, U.S. District Court judge

Royce C. Lamberth, of the District Court of Columbia, in February 1999 held

then Secretaries Babbitt and Rubin and Kevin Gover, assistant secretary of

the interior, in civil contempt of court. This was the first time two cabinet

officers had been held in contempt simultaneously.

Eloise Cobell, a Blackfeet Indian and the chief plaintiff in the lawsuit,

stated that “I think this is the beginning of justice for the victims who have

had years and years of abuse at the hands of the U.S. Government.”18 On

December 22, 1999, Judge Lamberth issued what he called a “stunning victory”

for the Indians, when he ruled that the government had indeed violated

its duty to safeguard the Indians’ trust accounts. He said the federal government

had engaged in “fiscal and governmental irresponsibility in its purest

form.” But rather than seek an independent body to rectify the problems,

which the NARF and Homan had requested, the judge simply ordered the

Interior and Treasury Departments to correct the situation. He gave the federal

officials five years to repair the massive accounting problems and said he

would personally oversee the government’s efforts.19 A federal appeals court

upheld Lamberth’s decision in a unanimous ruling on February 23, 2001.

Despite this string of early litigative victories, the individual Indian plaintiffs

in what was termed in 2003 as “probably the most important issue on

the secretary’s [Gale Norton, who replaced Bruce Babbitt] docket,” the Native

American Rights Fund and Judge Lamberth are still fighting the BIA and the

Department of Interior over how best to resolve this long-standing conflict.

In December 2001, Judge Lamberth, fearing that the Interior Department’s

INTRODUCTION 5

accounting system that handles Indian monies could be vulnerable to computer

hacking, took the unusual step of ordering the shutdown of virtually all

the department’s computer communications, including e-mail, web service to

national parks, and payments to almost 40,000 Indians. Some of the department’s

computer web service was restored within a few months, but much of

the Bureau of Indian Affairs’ website is still offline as of September 2005,

which means that the department has not yet convinced Judge Lamberth that

these sites are safe from hackers.

As the litigation continued, Mr. Alan Balaran, who had been appointed in

1999 by Judge Lamberth to investigate the financial situation of the Indian

trust fund, abruptly resigned his position in April 2004. In his resignation letter

to Lamberth, Balaran accused the department of a persistent effort to

block his work and said he had found a “systemic failure to properly monitor”

the activities of the various energy companies that routinely underpaid

Indians on royalties from oil, gas, timber, and other leases.20 The department,

for its part, accused Mr. Balaran of “concocting preposterous charges of a government

conspiring against him” and denied Balaran’s charges that it had

“destroyed valuable trust information.”21

In the latest ruling in this decade-old lawsuit, Judge Lamberth on July 12,

2005, issued a devastating rebuke of the federal government, and particularly,

the Department of Interior’s treatment of American Indians and the Indian

plaintiffs. In Cobell v. Norton,22 Lamberth ordered the Interior to include a

notice containing information about this litigation to the entire plaintiff class

of 500,000 Indians. The notice was to serve as a warning to the Indians that

the government’s information may not be credible. But Lamberth also took

this as an opportunity to graphically express his views about the disrespectful

manner in which the government had and, in his opinion, continues to treat

Native people, their resources, and their monies:

But when one strips away the convoluted statutes, the technical legal complexities,

the elaborate collateral proceedings, and the layers upon layers of interrelated

orders and opinions from this Court and the Court of Appeals, what remains

is the raw, shocking, humiliating truth at the bottom: After all these years, our

government still treats Native American Indians as if they were somehow less

than deserving of the respect that should be afforded to everyone in a society

where all people are supposed to be equal.

For those harboring hope that the stories of murder, dispossession, forced marches,

assimilationist policy programs, and other incidents of cultural genocide against

the Indians are merely the echoes of a horrible, bigoted government-past that has

been sanitized by the good deeds of more recent history, this case serves as an

appalling reminder of the evils that result when large numbers of the politically

powerless are placed at the mercy of institutions engendered and controlled by a

politically powerful few. It reminds us that even today our great democratic enterprise

remains unfinished. And it reminds us, finally, that the terrible power of gov-

6 INTRODUCTION

ernment, and the frailty of the restraints on the exercise of that power, are never

fully revealed until government turns against the people.23

Lamberth concluded his opinion on a depressing note as he sought to discern

reasons why the department had been unwilling to rectify its palpable

errors in dealing with the Indian trust beneficiaries. He speculated aloud

whether it was because Interior’s employees were either evil, apathetic, or

even cowardly. “Perhaps,” he said, “Interior as an institution is so badly broken

that even the most well-intentioned initiatives are polluted and warped by

the processes of implementation.” Or perhaps, “the Indians were doomed the

moment the first European set foot on American soil. Who can say? It may be

that the opacity of the cause renders the Indian trust problem insoluble.”24

As this decision was reverberating, Elouise Cobell wrote an op-ed column

in Indian Country Today in which she discussed her and her co-plaintiffs’

willingness to settle the lawsuit for $27.5 billion by seeking congressional

action, as had been previously suggested by some federal lawmakers. As she

noted, “too many Indians have died since the lawsuit was filed in 1996, and

too many will die before the courts can resolve all the issues in the case.”25

Within a week of floating this proposal, Ross Swimmer (Cherokee), the

Interior Department’s special trustee for American Indians and a former assistant

secretary of Indian affairs, fired off a contrary response by declaring that

the proposed $27.5 billion settlement suggestion was far too large and that a

“resolution to this case should be based upon facts, and the facts do not support

Cobell’s statements.”26

The battle wages on.

The pivotal issue of Kennewick is not about religion or science. It is about politics.

The dispute is about control and power, not philosophy. Who gets to control

ancient American history—governmental agencies, the academic community, or

modern Indian peoples?27

In 1996 several college students stumbled upon the skeletal remains of

what appeared to be an ancient individual—with an arrowhead lodged in one

hip—on the banks of the Columbia River in Washington State. Soon thereafter

this discovery was shared with a local salvage archaeologist, James

Chatters, who, after an initial examination, claimed that carbon dating

showed the remains to be between 9,200–9,500 years old. More interesting,

Chatters suggested that the skull of the person was more “Caucasoid-like”

than Paleo-Indian.

In fact, one early and very problematic forensic reconstruction of the

skull had the individual, dubbed the “Ancient One” by tribal nations in the

area, and “Kennewick Man” by the scientific community, resembling Patrick

Stewart, the actor who played the captain of the television series, “Star Trek:

INTRODUCTION 7

The Next Generation.”28 However, Vine Deloria Jr. a leading Native scholar,

compared the reconstructed skull to a nineteenth century painting of Chief

Black Hawk and his son.

As theories began to swirl about the skeleton—Caucasoid, Paleo-Indian,

Ainu (indigenous people of Japan), Asatruan (descendants of an ancient Nordic

sect)—the Army Corps of Engineers, with the support of the Interior Department,

and following the Native American Graves Protection and Repatriation

Act (NAGPRA) of 1990, said it intended to repatriate the bones to five northwestern

tribes: Yakama, Nez Perce, Wanapum, Colville, and Umatilla, for reinterment.

But the Army Corps’ decision was immediately challenged by Washington’s

congressional delegation and a group of prominent scientists who sued

to gain access to the remains. Armand Minthorn, a Umatilla leader, responded

critically to what the scientists sought: “Our oral history goes back 10,000

years. We know how time began and how Indian people were created. They can

say whatever they want, the scientists. They are being disrespectful.”29

In 2002 a federal judge ruled in favor of the scientists and held that the

remains must be turned over for study. Judge Jelderks declared that there was

little evidence to support the idea that “the Ancient One is related to any

identifiable group or culture and the culture to which he belonged may have

died out thousands of years ago.”30 This ruling was upheld on appeal in 2004.

Finally, in July 2005, a small group of scientists spent ten days examining

the 350 bone fragments in an effort, said Dr. Owsley, a forensic anthropologist

from the Smithsonian Institution’s National Museum of Natural History, to

understand how this person lived, how he died, and, more importantly, where

he fits in the so-called migratory patterns of early America.

The ramifications of this single set of human remains to how America was

literally peopled could be profound. Native nations are understandably leery of

this most recent effort to diminish their legal and cultural rights. They have

enlisted the help of Senator John McCain (R-AZ), and current chair of the Committee

on Indian Affairs, who introduced an amendment to NAGPRA in 2004

that would broaden the definition of “Native American” remains by expanding

it to govern so-called “ancient” discoveries as well. That amendment has been

held up for more than a year by Interior officials with the backing of a number

of scientists.

But even this amendment, if ever enacted, might not be enough. As one

writer put it:

If the majority [of non-Indians] profoundly longs to believe that men of Caucasoid

extraction toured here 16,000 years ago in Savile Row suits, ate gourmet cuisine,

and explored the Pacific Northwest with their intact pre-Christianized families

until the marauding horde of war-whooping Mongoloid injuns [sic] came descending

pell-mell from their tribal haunts to drive Cascade points into European hips

until they fell, one after another, in the earliest and most pitiful campaign of ethnic

cleansing, then that is what science will painstakingly confirm, that is what

8 INTRODUCTION

the high courts will evenhandedly affirm, and that is what in time the majority

will happily come to believe.31

In marked contrast to traditional Western religions, the belief systems of Native

Americans do not rely on doctrines, creeds, or dogmas. Established or universal

truths—the mainstay of Western religions—play no part in Indian faith. Ceremonies

are communal efforts undertaken for specific purposes in accordance with

instructions handed down from generation to generation.... Where dogma lies at

the heart of Western religion, Native American faith is inextricably bound to the

use of land. The site-specific nature of Indian religious practice derives from the

Native American perception that land is itself a sacred, living being.32

The United States’ ambivalence toward the religious rights of indigenous

peoples was exemplified by two notable events in 1996. First, President Clinton

recognized the religious rights of Indians when, on May 24, he issued an

executive order to promote accommodation of access to sites considered holy

by Indian religious practitioners, and to provide additional security for the

physical integrity of these sacred sites.33

However, two and a half weeks later, on June 8, a federal district court

decision, Bear Lodge Multiple Use Association v. Babbitt, undermined these

same religious rights when it ruled that the National Park Service could not

“voluntarily” ban rock climbers during the month of June to accommodate

the religious rights of several tribes who hold ceremonies at Devils Tower,

Wyoming, a sacred site to the Indians and a national monument.

A comparative review of these two events and their historical context

will reveal the ongoing tension in American society and among federal policymakers

toward Indian religious traditions. Clinton, for his part, was not acting

hastily in the issuance of his order recognizing the importance of sacred

sites to Indians. In fact, he was exercising authority derived from several

constitutional provisions (including one which requires the president to

“take care that the laws be faithfully executed”), the commander-in-chief

clause, and the express powers vested in him by congressional statutes, and

acting, in his own words, “in furtherance of Federal treaties.”

This executive order was a companion measure to an earlier Clinton

order issued April 29, 1994, that required federal agencies and departments to

accommodate American Indians in their need and use of eagle feathers and

body parts. The sacred site order mandated that all federal agencies with any

responsibility for the management of federal lands implement practices

which would oblige and aid tribal members with access to and ceremonial

use of sacred sites, and required those agencies to avoid activities that might

negatively affect the “physical integrity of such sacred sites.” The agencies

were given a year to prepare a report for the president on how they were going

to implement his order.