Sunday, April 22, 2018

Trump Administration challenges tribal sovereignty

As states begin to roll out work requirements for Medicaid recipients, tribal governments find themselves among the proverbial canaries in the coal mine. Tribal communities and reservations are the most economically disadvantaged areas in the country, with high unemployment rates and levels of poverty. Recognizing the economic hardships that they currently face, many tribes are seeking exemptions from these requirements, arguing that forcing work requirements on tribal citizens would result in them losing access to health care. The Trump Administration has however denied these requests, claiming that tribes are a separate race, not a government, and that granting an exemption would be an unallowable racial preference. This decision by the Trump Administration is sadly apart of a deplorable (no pun intended) pattern of treatment of tribal people by Donald J. Trump.

To anyone even vaguely familiar with Indian law, it should be clear that the Trump Administration is blatantly mistaken in its characterization of Native tribes. Article I, Section 8, Clause 3 of the United States Constitution plainly gives Congress the ability to regular commerce with foreign nations, among the states, and with Indian tribes. The separation of Native tribes from states and foreign nations represents the creation of a unique legal status, which was later clarified in Cherokee Nation v. Georgia as that of a "domestic dependent nation." The right of the United States government to consider this special relationship when making decisions was re-affirmed in Morton v. Mancari when it was held that a preference for hiring Natives to work in the Bureau of Indian Affairs was essentially akin to a Senator having a preference for hiring someone from their home state. In that case, the Court explicitly rejected the notion that a preference for Native people necessitated a race based preference but was instead a preference based on political status.

Based on established precedent, the Trump Administration could legally exempt an entire tribe from Medicaid work requirements imposed by states. By tying exemption from the work requirements to tribal membership, the Administration would be honoring tribal sovereignty and recognizing the existence of tribes as separate political entities. Tribes exist separately from the states and should not be forced to honor onerous requirements imposed upon them by entities under whose jurisdiction they generally do not fall. Tribes after all exist in a direct government to government relationship with the federal government. As mentioned above, it has also been consistently held that tribal preference is not a matter of race but political status and it is shameful that the Trump Administration is either ignorant of or completely unwilling to follow that precedent.

To anyone who has followed Donald Trump, this ignorance of tribal sovereignty should honestly be no surprise. As President, not only has he placed a portrait of Andrew Jackson in the Oval Office but he has also regularly attacked Senator Elizabeth Warren by calling her "Pocahontas."  In 1993, Trump directly attacked tribal sovereignty in testimony before the House Committee on Natural Resources by saying:
I listen about sovereign nation, the great sovereign nation, and yet $30 billion to all of the various programs was contributed to the sovereign nation for education, for welfare, for this, for that. I listened as to sovereign nation, and yet the sovereign nation and the people of the sovereign nation have the right to vote in our country. I listen as to sovereign nation, all of the medical, all of the other treaties. I want to know, can Indians sign treaties with foreign nations? Can they go and sign a treaty with Germany? The answer is no. How is it a sovereign nation?
In true Trumpian fashion, he later said, "Nobody is more for the Indians than Donald Trump."

A modern President's ignorance about tribal sovereignty is, sadly, not unprecedented. After all, in 2004, President George W. Bush was famously tripped up on a question about what tribal sovereignty means in the 21st century. What makes Bush different from Trump however is the intent behind the ignorance. In answering the question, Bush acknowledged that the relationship between the federal government and tribes is between two sovereign entities whereas Trump appears to question the entire basis of tribal sovereignty. Even though Bush appeared to lack an understanding of the intricacies of tribal sovereignty, he acknowledged and affirmed the notion that tribes exist in a government to government relationship with the federal government, a premise that Trump has repeatedly rejected.

You can argue that Donald Trump could have evolved on tribal sovereignty in the last 25 years, many people change their opinions as they learn more about a topic. However, the actions of his administration have only served to prove that Trump has remained consistent in his views of Native tribes and tribal citizens.

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