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Congress Is Still Breaking Treaties and Cheating Indian Country

The cost is counted in human lives.

Rep. Paul Cook (Pete Moravich/Getty Images)

Paul Cook feigned a smile. His face wore the same weary look of consternation it had featured for hours. The Republican Representative, from California’s 8th District, didn’t know what else to say.

“This story here is the one you hear over and over and over again,” he sighed.

Cook is the GOP leader on the House Subcommittee for the Indigenous People of the United States and among one of the best friends Indian Country has on the conservative side of the aisle. And on Wednesday afternoon, after having listened to five Native leaders relay the same message to the subcommittee in their testimonies and responses, he was at a loss for words.

The hearing was for two bills, H.R. 1128 and H.R. 1135, both of which aim to right one of the most foundational evils still plaguing the United States—the near-annual breaking of treaties with the sovereign tribal nations within its borders. As a condition of the scores of treaties the United States signed with the tribes in the 19th and 20th centuries, the federal government, in exchange for land and the atrocities of forced removal, agreed to provide the tribes healthcare and educational services, among others. The exchange was not remotely equal, but it meant survival for a people staring down the barrel of state-induced genocide.

Over a century removed from the inking of the majority of these treaties, the United States government is still failing to hold up its end of the bargain.

Take the current situation on the Yankton Sioux reservation in South Dakota for example. Struck by a third round of flooding this year, the Yankton are struggling to rebuild necessary infrastructure in the community, such as flooded roads. As locals around the Lake Andes area have reported, the tribe dug trenches to try to divert the water, to little success. Jason Cooke, the Yankton Sioux vice chairman, put it as plainly as he could. “We’re not engineers,” he told the local news. But two days ago, the South Dakota government officially refused the Yankton Sioux’s request to call in the National Guard, telling the tribe and the public in a letter that the Yankton have “dirt” and “instructions” on how to build a berm to stave off the flooding.

One of the reasons for America’s failure is clear: Programs and departments crucial to tribal life, such as the Indian Health Service and the Bureau of Indian Affairs, are classified by Congress as what is known as discretionary funding.

What this means in practice is that the money that keeps the lights on in reservation and urban hospitals under IHS control is routinely subject to a partisan Congress passing the national fiscal budget on time. If the budget isn’t passed and the federal government shuts down—as it did this past December and January—so too do the hospitals. And the schools. And the housing programs. Shutdowns force tribal governments, at least those with the means to do so, to dip into their own coffers to cover all of these program costs until the government is back up and running; then the tribes have to go through a lengthy reimbursement process to recoup losses they never should have had to assume in the first place.

H.R. 1128 and H.R. 1135, and their Senate counterpart S. 229, aim to help address that by securing the funds for vital services and programs at least one year ahead of time, a classification known as advanced appropriations. Programs that already boast this privilege include the CDC, Veteran Affairs, Medicare, and Medicaid. But even if the federal government were to fund such programs in advance, there is a more concerning issue that blankets the entire conversation. In addition to the instability of the current down-to-the-wire process, Congress is woefully underfunding every major program meant for this nation’s Indigenous population.

Two days before the 2018-19 shutdown went into effect, the U.S. Commission on Civil Rights released what was called the Broken Promises report. The damning 314-page document laid out how, for decades, the United States has been forcing tribal programs to survive off of scraps. “Funding for Native American programs has mostly remained flat, and in the few cases where there have been increases, they have barely kept up with inflation or have actually resulted in decreased spending power,” the authors wrote.

The Broken Promises report might have startled some, but in fact it was rehashing what the exact same commission had already said in 2003 in A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, which highlighted the exact same chronic underfunding. The Broken Promises report merely detailed how little has changed in the interim.

The request for mandatory federal funding has languished in Congress for years now, Cheryl Andrews-Maltais, chairwoman of the Wampanoag Tribe of Gay Head, explained to the subcommittee. “I’m second generation having these same conversations in front of Congress,” Andews-Maltais said. “I don’t want my daughter, who worked on the Senate Committee on Indian Affairs, sitting here and having the same discussion in her lifetime.”

If you’re looking for what all this means for the Natives on the ground, consider this monumental and heartbreaking series published by the Argus Leader last fall. Looking at the Rosebud Sioux and Oglala Sioux, the Leader found that life expectancy for Natives in South Dakota is twenty-one years shorter than the state average. Individuals treated at these IHS facilities have mistakenly had their limbs amputated; suicidal patients were abandoned and found dead; one man with mental health ailments and heart conditions was pepper-sprayed to death by hospital security. In the most horrific scenario, a doctor that worked at the Pine Ridge IHS hospital, in addition to prior stops at IHS facilities in Montana, was charged with the sexual abuse of minors, with reports of pedophilia dating back decades.

All of this is the direct result of underfunding. Because of the convoluted way Congress funds the Indian Health Service—it is run by the Department of Health and Human Services, but its funding comes through the Department of the Interior, which also houses the Bureau of Indian Affairs—the IHS is choked to the point of catastrophe on a yearly basis.

When stories like those above surface, outrage and shock are the natural reactions. Hearings are held, and Congressional committee members puff out their chests and scream at the very administrators they underfund. Last December, it was the Bureau of Indian Affairs spokesperson being exorcised by Senator Jon Tester for failing to find a solution to the Missing and Murdered Indigenous Women crisis. In May, it was the Bureau of Indian Education that found itself facing the wrath of Representative Ruben Gallego, following the death of three Native students connected with Chemawa Indian School. Yesterday, it was the BIA official, meekly commenting that he was “not in a position today to be able to state an official agency position” on the two advanced appropriations bills being considered.

In every single scenario, the blood is very much on Congress’s hands. They simply refuse to look down at their stained palms.

There is some good news here. As a result of being ignored by Congress, some tribes have boosted their economies in the past three decades and assumed financial control of these operations. Fair gaming compacts with state governments allow for tribes to profit off of gambling, while others look to extractive or green energy production for revenue. Regardless of industry, the endgame of self-determination is to no longer have to rely on a Congress that was never reliable in the first place. And that is a wonderful notion, one that has resulted in increased cultural and political power, such as the Cherokee Nation’s recent decision to assert its treaty right and place a representative in Congress. But tribal self-sufficiency has also been an emergency response to federal failure and broken treaties.

Some tribes’ success in the face of such negligence has led outsiders, like Forbes contributor and Johns Hopkins professor Steve Hanke, to claim that all tribes should simply follow this route—all tribal lands should be privatized and weaned off the government teat. This line of thinking, rooted in misplaced colonizer-knows-best confidence, harkens back to the Allotment Era, when the state and federal governments worked to break up the tribal nations by pushing tribes to adopt the U.S. version of private property, thus nullifying their claims of national sovereignty and allowing non-Native capitalists to buy up massive tracts of what should have always been tribal land.

It’s easy for Indian Country issues to feel academic and a bit removed from the human costs that are inflicted every time a government shutdown or climate catastrophe strikes, given that the majority of Americans are at best only semi-aware of their nation’s own history as it relates to this land’s Indigenous communities. But the IHS—and every other federal service guaranteed to tribal nations in exchange for their homelands—should be classified as mandatory funding, as the proposed legislation states. The movement has the support of the tribes. The agencies, though they won’t say it outright as a matter of political posturing, are clearly supportive. The only group not on board, it seems, are the people with the votes who matter most.