Are We Living Up to Our Obligations to Protect Native American Rights and Tribal Sovereignty? with John Echohawk

Episode Notes

Transcript

Speaker 1:

SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of Law with campuses in Santa Barbara and Ventura.

Speaker 2:

Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts La Deans Jackie Gardina and Mitch Winick,

John Echohawk:

The Office of Economic Opportunity. Part of the War on Poverty had decided one of the best things they could do to help Indians get to poverty was to get some Native Americans who were lawyers and doctors because we had virtually none of those across the country to be proportionately represented in those professions.

Mitch Winick:

That’s our guest, John Echohawk, executive director of the Native American Rights Fund,

Jackie Gardina:

Mitch. We started this podcast to talk about civil rights and we’ve spent a lot of time talking about the importance of establishing a pluralistic, multiracial democracy. One of the core pieces of that is something that we haven’t yet talked about, which is Native American rights and Native American civil rights as part of that pluralistic, multiracial democracy, that more perfect union that we’re working towards. So I’m really thrilled to set the stage for us to incorporate this kind of thinking into our podcast going forward. John Echohawk is the executive director of the Native American Rights Fund, a role in which he has served since 1977. He was first graduate of the University of New Mexico’s special program to train Indian lawyers and was a founding member of the American Indian Law students Association in 2023, the American Bar Association section of Civil Rights and Social Justice awarded Echo Hawk, the Thurgood Marshall Award to celebrate his long-term contributions to the advancement of civil rights in the United States. Mr. Echo Hawk has been recognized as one of the 100 most influential lawyers in America by the national law Journal and has received numerous service awards and other recognition for his leadership in the Indian law field. I am so excited to have him here and to be able to really plumb the depth of his expertise. Welcome to SideBar John.

John Echohawk:

Thank you Jackie. Glad to be here.

Speaker 6:

John, our country has recently been going through a period in which there’s been a very public effort to rewrite American history specifically to downplay or simply ignore the origin story that includes some egregious periods of human rights abuse. The news has primarily focused on the history of slavery and the treatment of non-European immigrants. However, our true origin story starts prior to the Constitution and the Bill of Rights and involves our relationship with American Indian tribes and a complex series of treaties, laws and court decisions that are rarely if ever included in American history or legal education. Our primary focus here on SideBar is to provide a better understanding of individual and civil rights. This has been the focus of the Native American Rights Fund since 1970. Can you provide an update on the legal and policy issues that are front and center for NARF today?

John Echohawk:

Well, the Native American Rights Fund starting in 1970 was at the right place at the right time because that is when President Richard Nixon changed the federal Indian policy from one of terminating tribal governments and forcing assimilation of Indian people into the general society, recognizing the treaties and the sovereign status of tribal governments, allowing self-determination native people themselves determining their own future that put an end to those very destructive Native American policies. This Indian self-determination policy now has been in effect for 54 years and has allowed native people to make substantial economic and social progress in this country.

Jackie Gardina:

John, I just want to follow up on that because I’m not sure everyone appreciates the time period that you’re talking about. For many of the current legal issues facing American Indian tribes and their members in 1953, Congress adopted a federal policy disbanding all American Indian tribes selling their land and adopting policies of relocation that moved D Ds off reservations and into urban areas. We talk about individual rights here. We talk about the constitution and how the Constitution protects or doesn’t protect those rights. Under what authority could the federal government simply disband tribes and move them

John Echohawk:

Legal from the United States? Supreme Court before that time basically held that the federal government had plenary power and authority over Indian tribes and Congress could do with them whatever they wanted to do. In 1953, Congress started that termination policy.

Jackie Gardina:

You are a member of the Pawnee tribe. How did that affect your tribe and your childhood?

John Echohawk:

Growing up understood that our tribes were really powerless to deal with the federal government. They could do whatever they wanted to do with us, and of course, that termination policy was in effect, so I just kind of figured it was a matter of time until our tribe got terminated, but we never did get terminated. Luckily,

Speaker 6:

John, you went law school, as you said, right when the civil rights movement was gaining steam and that movement included indigenous rights. Was that part of your inspiration to attend law school?

John Echohawk:

No. I just wanted to be a lawyer. I had done well in high school and was encouraged by several of my teachers to think about studying law and becoming a lawyer, so that’s what I set out to do. When I went to college, I took a free law curriculum and it was basically four years that I had to put in before I could start law school, and then I applied to the law school there at the University of New Mexico and went over there when I was a senior in college to make sure they got my application to get scholarship information because I had a scholarship to go to college. I needed one to go to law school, and they told me about a call they had just had from Washington DC and had the dean of the law school Tell me about it. The Office of Economic Opportunity, part of the War on Poverty had decided one of the best things they could do to help Indians get to poverty was to get some Native Americans who were lawyers and doctors because we had virtually none of those across the country to be proportionately represented in those professions.

They wanted to know if I wanted a scholarship to go to law school there, and of course I said, sure, and then to the credit of that faculty, they put together one of the first courses ever taught in a law school on federal Indian law. We didn’t really know much about that and we didn’t think our tribal leaders did either, and then we learned about the legal process and that is it doesn’t matter what the law says unless you have lawyers to represent you and enforce those laws, then nothing happens. And of course, we were the poorest to the poor and our people didn’t really have any lawyers. We learned from that civil rights movement, they had the NAACP Legal Defense fund, a nonprofit organization to raise money, hire lawyers, make them available to the black people to assert civil rights, so we decided that’s what we need to do for Native Americans. When I graduated, that’s what we did, and here we are 54 years later.

Speaker 6:

John, what would you consider some of the major wins in this effort? I know 54 years is a long time, but there must be some of the really standout moments that made you proud of what NARF was doing.

John Echohawk:

Oh, yeah. We’ve won a number of significant cases over the years just right from the start. We got involved in one of the most significant cases ever, and that was the assertion of the treaty fishing rights of the tribes up in northwest Washington under 1855 treaties. They had the right to fish in common with the citizens of the territory at their usual and accustomed places that had basically been ignored, but Indians started asserting those rights in the 1960s as part of the Civil rights movement and saying, well, they didn’t really want civil rights. They wanted treaty rights, and that’s what the treaty said, and they said what that meant is that they got 50% of the fish and the right to fish off the reservation off at their usual and accustomed places That went to court with our legal representation of the number of the tribes there together with the federal government who got involved under this new self-determination policy protecting treaties.

We ended up winning that case in 1974 and there’s a big commemoration going on right now because it was 50 years ago this month that that decision came down and the tribes won, and it was a big controversy up there in the northwest, but after the ninth Circuit Court of appeals affirmed that decision and then the US Supreme Court affirmed that decision, everyone came to know that treaty rights were here to stay, that they were not ancient history, they were still the supreme law of the land if we just started enforcing him. We did a lot of other treaty enforcement work over the years, but that was the beginning.

Jackie Gardina:

That is an amazing win. I know that the Supreme Court issued an opinion recently that gave you pause regarding water rights, the Navajo nations and the government’s responsibility to identify and protect those rights. Are you worried like so many of us that the Supreme Court is moving some of those rights backwards?

John Echohawk:

Oh yeah. We’re always concerned about the US Supreme Court. Generally speaking, we did pretty well in Indian right Litigation in the seventies, in the eighties, but in the nineties when the makeup of the Supreme Court started changing, we weren’t winning as many cases as we used to, and that continued into the two thousands and 2001 that led the tribal leaders to call a national meeting said it was crisis in Indian country because of this US Supreme Court not making rulings on federal Indian law cases the way they used to and basically ignoring the treaties and federal Indian law or misinterpreting it or reinterpreting it, and it really caused the crisis. We’ve really helped the tribes focus on these Supreme Court cases since that time, and it really kind of depends upon the makeup of the court sometimes a little bit better than other times that Navajo water rights case you just mentioned. We ended up losing five to four. We almost had enough votes, but before that time we’d done pretty well the last couple years, several five to four, but again, it’s very, very iffy. We just hope for the best.

Speaker 6:

We are going to take a brief break when we return. We’re going to continue our conversation. We with John Echohawk, executive director of the Native American Rights Fund.

Speaker 7:

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Speaker 6:

John, on some of our other guests, we’ve discussed this juxtaposition between federal law and state and local law, and there’s been a lot of movement towards focusing on local law, local rights, local ordinances, things of that nature, particularly on areas where they believe, as you’ve said, the Supreme Court is a bit soft on those issues. Most people don’t realize or understand how does that relationship work with American Indian rights? Are there local laws, state laws, ordinances that can protect some of your rights when the federal government or the Supreme Court won’t stand up for them?

John Echohawk:

There’s three sovereigns that make up the American system of government, the federal government, the state governments, and the tribal governments, so we have our own laws, our own governments we’re subject to federal control, as we’ve already talked about. Really, state laws and local laws don’t apply on our lands and apply to us, and unless somehow Congress has passed some law that makes that happen, much of this is within our own hands As tribal governments, we have to pay attention to whatever the federal government does since they have this plenary authority.

Jackie Gardina:

That was something that really took me by surprise when I first started learning about tribal law, federal Indian law and the complex intersection of it. I just want listeners to understand that there’s a distinct tribal justice system. Tribal laws, as John has said, tribal courts that have jurisdiction in Indian country, but even that term Indian country is much more complicated than it sounds. It’s like a state having jurisdiction within its boundaries, but if I violate state law, I can be arrested and tried in state court for that crime, but if I go into Indian country and I violate tribal law, I cannot be tried in tribal court for that crime because I’m a non-Indian. How does that affect the rule of law in Indian country

John Echohawk:

As a result of one of these bad US Supreme Court decisions? In 1978, all afant against the Squames tribe where the US Supreme Court determined that tribal courts do not have criminal jurisdiction over non-Indians when they commit crimes against Indians, so it has to be prosecuted either by the state authorities or the federal authorities, the tribal government, tribal police, tribal courts cannot be involved. Basically what that’s meant has been that there’s non-Indians who know if they go onto Indian lands and commit crimes that they’re not really going to be touched by the local tribal authorities that has to be state or federal authorities, and for the most part they either don’t care, they’re too busy, so nobody ever gets prosecuted, and it’s a particular crisis among our Indian women who get abused and raped and nothing ever happens in terms of trying to find out who did it and prosecute ’em, and it’s led to what we call these days, the crisis of missing and murdered Indian women. It’s terrible.

Jackie Gardina:

I think the statistic from the FBI was something like three times the number of Indian women go missing then the national average across the country as a whole, and that’s a really significant difference, but there doesn’t sound like there’s resources or perhaps motivation to put resources into those kinds of issues in Indian country.

John Echohawk:

Yes, everybody keeps working on that, and we had some success with the law relating to women was passed

Jackie Gardina:

The Violence Against Women Act.

John Echohawk:

There we go. They allowed a few tribal courts to start exercising jurisdiction over non-Indians who commit these crimes against women. That went pretty well for a few years. Another amendment came along and allowed more tribes to do that, and all of that’s going pretty well, and so far it hasn’t been contested successfully in court in terms of people trying to say that’s unconstitutional and maybe we can get more authority over non-Indian offenders in our tribal courts, so we’re making some progress there.

Speaker 6:

John, let me follow up on this question of courts. Before the Biden administration, fewer than 10 Native Americans, Alaskan natives or native Hawaiians, out of thousands of federal judicial appointments have ever been appointed and served as lifetime judges. Last month, president Biden nominated Sarah Hill to the US District Court for the Western District of Oklahoma. She’s a citizen of the Cherokee Nation with deep experience in Indian law. She is the first native American woman in Oklahoma to serve as a lifetime judge. You have previously pointed out that Supreme Court Justice Neil Gorsuch from Colorado has been a supporter of Indian rights. How would you characterize the current climate for protecting Native American rights in the US courts and particularly the US Supreme Court?

John Echohawk:

This is an issue that the tribal leaders took on in 2001 when they declared this national crisis in Indian country, and one of the things they got together and talked about was the lack of federal judges who didn’t know anything about Indians or federal Indian law and that something needed to be done about that, so they had us start working with them to look at these judicial nominations, these vacancies, and to start advocating for Native American lawyers or other lawyers who were familiar with tribes and federal Indian law to be nominated and confirmed. So we’ve all been working on these judicial nominations since 2001, trying to get more of our Native American attorneys or other attorneys like Neil Gorsuch. You know about tribes and federal Indian law onto the federal courts and we’re gradually making progress. We’ve got a way to go, but we’ve made some progress.

Speaker 6:

As a follow up, what struck me in your writing and your speaking on these issues is that I think it would probably surprise people that this isn’t really a Republican and Democrat issue. It seems to me it really is more of, as you characterize it, an understanding and familiarity with the issues of the needs of those who live in Indian country. Yes,

John Echohawk:

That’s right. Like I said, when I started law school and took that federal Indian law course was one of the first ones ever taught in a law school, and of course over time that’s changed and now most of the law schools have federal Indian law courses, particularly in the West. There’s even federal Indian law questions on bar exams in the West now. In other words, there more and more people have to learn about this, but still we have a ways to go to educate everybody about the legal and political status of tribes in this country

Jackie Gardina:

And when we think about education, is it your hope that a book made into a movie, but I think the book is better? Killers of the Flower Moon about the murders of the wealthy Osage Indians to obtain the mineral rights under their land will bring attention to federal Indian law and the plight of and the lack of protection for Indians and Indian country?

John Echohawk:

Well, I hope so. Again, one of the biggest problems we have is most people don’t really know much about tribes and the treaties and federal Indian law and all of that, so any exposure we can get is fine. Just a comment on that movie, killers of the Flower Moon, it didn’t really focus on the subsequent development in 2006, finally, the Osage tribal government was reformed because before that time, as a result of the head rights that were set up, whoever had a head right had vote in the Osage tribal government, and over the years, a lot of non-Indians ended up with these head rights, so they were voting for the Osage tribal government and there were all these Osage people who didn’t have head rights, that had no role in their tribal government, and that finally got fixed by a constitutional amendment in 2006 where now only Osages vote for the Osage tribal government. It doesn’t matter who owns head rights.

Jackie Gardina:

Just a quick follow up on that in terms of voting, because you’re talking about non-Indians voting on issues that are pertinent to the Osage tribe. We’ve talked a lot about how we can’t rely on the courts, especially the current Supreme Court to protect certain rights or to make sure that we’re not rolling back rights that currently exist. We need to look to local, state, and the federal government is Native American voting rights and getting the vote out part of the work that your foundation does.

John Echohawk:

Oh, yeah. It’s one of the areas that we spend a substantial amount of our attorney time on these days. I think last count, I think we had eight voting rights cases across the country, and all of this really came about again as a result of the US Supreme Court in 2013 and the Shelby County case basically gutting the Voting Rights Act, which had previously required the Department of Justice to pre-clear any changes in state law relating to voting rights so the Justice Department could strike down all of these discriminatory state laws on voting, but since the Supreme Court did away with that in the Shelby County case, then we all had to go to court to strike down these discriminatory state laws on voting. That’s when we started getting all the calls because that’s what the Native American Rights Fund does provide legal representation on important issues when they need lawyers, so they started calling us, so we got involved in all of these voting rights cases and basically enforcing the Voting Rights Act through Litigation. We’ve been quite successful at doing that. We

Speaker 6:

Are going to take another brief break when we return. We’re going to continue our conversation with John Echohawk. He’s the executive director of the Native American Rights Fund. He’s been with this fund since its inception in 1970, having served continuously as executive director since 1977,

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Speaker 6:

Let me change the subject slightly, and this may not be something that your fund focuses on, but I think many of us who travel certainly by car and travel through the West are very familiar with the evolution of casinos on Native American property, particularly in states where they’re not otherwise allowed. It would seem that this dramatically changed the economic resources of tribes, but most of us would be unfamiliar whether that really has worked or not. Any thoughts on that or any guidance you could give us on how that has worked out and what is the future for that as an economic interest for tribes?

John Echohawk:

Yes. The right of tribes to do gaming on their lands was the subject of a Supreme Court case in 1987. The US Supreme Court at that time held at tribes as sovereign governments at the authority to generate revenues to support tribal government through gaming just like some of the other states were doing. They could do that under tribal law or federal law and any state laws that would prohibit that did not apply because state jurisdiction does not apply on Indian land. Tribes were free to do gaming and states really fought back against that and asked Congress to take away that sovereign right after a big confrontation in Congress, Congress passed what they call the Indian Gaming Regulatory Act of 1988, and basically what that did is set up a process for compacts to be made between states and tribes to regulate the gaming, and the only role states could have was to get some of the funds that would cover any expenses they had in terms of enforcing the law near the casinos, tribes have been quite successful in negotiating these compacts and it’s basically become the main economic driver in Indian country. Not all the tribes have that. A lot of depends on location and whether tribes want to do that or not, but again, it’s the main economic driver in Indian country these days. A very significant decision.

Speaker 6:

John, one of the things Jackie and I look at as educators, as law school deans, we’re always thinking about the next generation. You’ve been the leader of your group for a long time. What are the focal points of the next generation of American Indians, the young people who are coming up and following you? What would you characterize as some of their priorities?

John Echohawk:

Well, I think they want to continue the progress that’s been made here during this Indian Self-determination era. We have to of course deal with the challenges that come with that and really kind of comes back down to the voting rights issue we discussed earlier and the politics around that because we still have people out there who are opposed to tribes and Native American rights. They try to have people run for these different offices, Congress, senate, state. It’s oftentimes an issue in these elections around the country and we need to be involved in that and make sure that we turn out people at the polls who will support Native American rights and vote against those who oppose us. It’s that ongoing set of politics that our people have always faced through our history and that continues.

Jackie Gardina:

I want to ask a question about that. You were one of the founding members of the Native American Rights Fund. You have been the executive director since 1977, but you’ve been there since 1970 when it first founded, and if people go to the website, they will see some pictures of you and the other attorney that you were working with at the time back in the 1970s, so I encourage people to go on the website and learn more about your organization and everything it’s done. When I talk to students now or anyone who’s interested in activism and being engaged when I talk to them about how going from road to Dobbs, it was a 50 year battle for those who were against access to abortion to overturn that precedent. They look aghast at the idea that it will be another 50 years perhaps of sustained effort to hopefully reverse that decision or gain some kind of different protections. What do you say to people about how you maintain or sustain your commitment day in and day out with losses, wins, setbacks, and moving forward? Just what drives you?

John Echohawk:

This is who I am. This is who we are as Native American people. We need to do whatever we can to sustain ourselves and our way of life and our tribes, and we’re going to continue to do everything we can to make that happen. Whatever it takes. Again, this is what we’ve had to do since the first contact in 1492 and we’re still at it. The challenges never stop.

Speaker 6:

As a wrap up question, when you look forward, what provides the most optimism for you on the issues that you prioritize?

John Echohawk:

54 years of the self-determination policy, staying in effect is very, very significant, and we just hope we’re able to continue that. Everything we’ve done over these last 54 years has helped to do that, and we just need to keep up that effort, hope we can sustain that and build on that and get even more social and economic progress among our people.

Jackie Gardina:

Ending on such a positive note in terms of the work that you see going forward. Hopefully what we’ve done in this episode is introduce people or at least expose people to the complexities of Native American rights and Federal Indian law and what they need to be paying attention to and hopefully be curious about and do some deeper research. Thank you so much for coming on and sharing your expertise with us.

John Echohawk:

Well, thanks for having me, Jackie and Mitch. Thank you.

Speaker 6:

We appreciate it, John. Good luck on all these issues and you have our support.

Jackie. I thought it was important for us to talk about American Indian rights at this point in time because there is such an effort underway to redraft American history without the honest origin story and American Indians get left out of that story many, many times. It’s frequently all that we know are black and white Western movies and television shows that are egregious in their depiction of American Indians always as savages and uneducated and ignorant when in fact the culture of the American Indian tribes is worthy of great respect. I love what John and his organization is doing, and I think it’s important for us to talk about this as a rich part of American history, even as some of the abuses of their rights continue to go on at the level of federal law and the federal courts.

Jackie Gardina:

I want to point a finger at us as well because as we’ve been talking about civil rights and we’ve talked about the Constitution and recent decisions, we’ve talked about those who were left out of the ratification process, women and slaves, but we didn’t say that Native Americans are abiding under a constitution that they had no ability to ratify or voting. Their voting rights were just as cramped and indistinguishable as those of women and others. I think it’s important for us to constantly remind ourselves and our listeners that view of who was left in and who was left out of being able to participate in American life in those early days is much broader than what we’ve been talking about,

Speaker 6:

And I think it’s particularly important, as John pointed out, that whereas some of the groups we focus on have alternative pathways to access to justice through county ordinances, local laws, state laws, American Indian tribes do not have that access. They are limited to federal law and the federal courts and those areas of separate tribal laws and tribal justice that provide them some local jurisdiction, but it’s very different than what I think most of us would anticipate in these areas of law.

Jackie Gardina:

Hopefully, we’ve inspired some people to do some research and get a better understanding of what’s happening. Once again, I want to thank everyone who joined us today on SideBar and as always Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

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