NCAI President Says Biden Must Prioritize Tribal Sovereignty

By Emma Whitford
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Law360 (February 22, 2021, 8:27 PM EST) -- President Joe Biden has taken early, promising steps but the United States must do much more to show true commitment to tribal sovereignty, environmental preservation and racial justice, National Congress of American Indians President Fawn Sharp said Monday.

In a live-streamed address kicking off the NCAI's 2021 executive council winter session, Sharp issued the 19th State of Indian Nations, acknowledging the devastation of the coronavirus pandemic on tribal communities before laying out a list of demands for the new administration in Washington, D.C., emphasizing the importance of self-determination.

"We now greet a new administration and altered Congress who face a monumental task. America is at an inflection point with much to heal, repair and recover from," Sharp said. In this context, the country "must come to terms with the right of sovereign nations to chart their own course, and their rightful place in helping this country meet these challenges," she said.

Ticking off Biden's early promising actions, Sharp praised his "historic" decision to choose Rep. Deb Haaland, D-N.M., as the first Native American nominee to head the U.S. Department of the Interior and urged Congress to quickly confirm her.

The DOI "more profoundly impacts the daily lives of Native people than any other federal agency," Sharp said, adding that Haaland "understands to her core" what it means to support tribal sovereignty: overseeing a "complete transformation of the department so that it defers, and not dictates, to tribal nations."

Sharp also said she is reassured by Biden's January memorandum on tribal consultation, which reestablished Obama- and Clinton-era guidance for federal agencies to consult regularly with tribes on federal policies that impact them.

Also "critical" was Biden's decision to rejoin the Paris Climate Agreement, revoke a presidential permit for the Keystone XL Pipeline, stop drilling in the Arctic National Wildlife Refuge, and reestablish national monuments including Bears Ears in Utah.

But "much hard work" remains, Sharp said, including giving the consultation memorandum "real ... teeth" by codifying the principle of "free, prior and informed consent."

Derived from the United Nations Declaration on the Rights of Indigenous Peoples, the language would make the requirement for early tribal consultation and approval more explicit, along the lines of a policy Washington state's attorney general adopted in 2019.

"We have the right as sovereign nations to say yes or no and that right must be respected," Sharp said, adding that the standard should be legally enforceable.

Several of the priorities laid out Monday had to do with protecting and restoring tribal lands.

For example, the NCAI is calling for a congressional "Carcieri fix" of the U.S. Supreme Court's 2009 decision in Carcieri v. Salazar to allow all federally recognized tribes to have land taken into trust. Sharp also urged the federal government to "revive" a 2012 land buyback program that was part of the landmark Cobell settlement over the alleged mismanagement of natural resources on tribal lands.

In the area of racial justice, Sharp added, the country needs a robust K-12 curriculum on tribal nations and peoples, and to "finally retire those Indian school mascots that dehumanize us."

To continue to address the coronavirus pandemic, Sharp added, the federal government needs to allocate an additional $20 billion in relief funds, with "maximal flexibility" around how and when the money can be spent.

Although the $8 billion set aside for tribes in the Coronavirus Aid, Relief and Economic Security Act last spring was record-breaking, tribes have since taken their concerns about eligibility and distribution to federal court. 

Tribes should also be able to access vaccine supply from both the Indian Health Service and state governments, Sharp said, and need more staff, vaccine storage, and a more robust public education campaign tailored to tribes.

"The federal government simply must do better," Sharp said. "The lives of our people and the future of nations are at stake."

--Additional reporting by Andrew Westney. Editing by Janice Carter Brown.

Correction: An earlier version of this story incorrectly named the National Congress of American Indians. 

For a reprint of this article, please contact reprints@law360.com.

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