Excerpted From: Brett G. Roberts, Returning the Land: Native Americans and National Parks, 21 Ave Maria Law Review 148 (Spring, 2023) (465 Footnotes) (Full Document)


BrettGRobertsOn April 12, 2021, The Atlantic published an article entitled “Return the National Parks to the Tribes.” The article makes a case that the return of the National Parks to Native American Nations “ensure[s] unfettered access to tribal homelands” for Native people, is a form of “deeply meaningful ... restitution,” and “would be good not just for Natives, but for the parks as well” since “Indian communities have become adept at the art of governance.” Such governance has been in the face of “legal, political, and physical struggle,” and a “[transfer of] the parks to the tribes would protect them from partisan back-and-forth in Washington.” David Treuer, the author of the article, notes that “[t]he federal government should continue to offer some financial support for park maintenance, in order to keep fees low for visitors ....” Still, this hint at the real difficulties of aforementioned restitution is a brush upon the legal, historical, and cultural intricacies of his proposal. These difficulties far exceed monetary concerns and are so complex that the author could not have possibly hoped to detail them in one Atlantic piece. Some questions include:

[H]ow did the relative power held by the NPS [National Park Service], local governments, Indian tribes, and conservationists change? When and why? Do morality and holding power affect environmental tactics, and how do politics and ethics influence governmental decisions, regulations, and obligations? In what areas are Indians and the general public in agreement over common interests? Where do they face inherent conflicts? What ideals and imperatives drive the NPS, tribes, and environmentalists? ... What attitudes, myths, and stereotypes influence our values about land, government, and ethnic minorities? Who is an ethnic minority, and what makes a bureaucracy tick? spelunk through that cave of problems, it is pertinent to understand what Native Nations share with National Parks. In 1832, George Catlin, the former lawyer turned adventurist and realist painter, wished for conservation of the American West and the American Indian. Yet, the landscape of North America, the wildlife, and Native Nations were all on the brink of destruction in the late nineteenth century. From that historical tipping point, connections with National Parks grew in abundance. Now, Native Nations control 56 million acres of American land, and the National Parks account for 85 million acres. Parks, like reservations, were created mainly by presidential executive orders. Indians and parks share federal supervision under the same branch of government, leaving both at risk to potential conflicts of interest, as well as susceptibility to the whims of the Department of Interior's development plans. Native Nations face problems today, including the shortest life expectancy, the highest rates of violence, suicide, unemployment, and much more. Similarly, the National Parks are afflicted by mismanagement, excessive tourism, traffic concerns, and pollution. Native Nations typically receive little monetary help from Congress, and the National Park Service “receives an even smaller percentage of the federal budget.” 1998, almost no literature linked these two facets of life and culture in America. In what was the first of its kind, authors Robert Keller and Michael Turek collected many of these connections between Native Nations and Parks into American Indians and National Parks. They discovered a large scope and variety of relationships between Native Nations and Parks because, for all of their parallels, Native Nations and Parks can often be at odds with one another. imagined a harmony “by some great protecting policy of government ... a magnificent park, where the world could see for ages to come the native Indian in his classic attire, galloping his wild horse, with sinewy bow, and shield and lance, amid the fleeting herds of elk and buffalo.” Aside from the goal of viewing a colonized stereotype of Native Americans, it took 150 years for the government even to adopt a “park policy toward native people,” all the while still overlooking tribal welfare and much less lacking a congenial Native adapted to life within a park. Catlin was spot on with Indians being intimate with National Parks, despite disparate needs. In 1916, Congress created the NPS, placing it within the Department of the Interior and making it a next-door neighbor of the Bureau of Indian Affairs. Indian policy began many years prior, ostensibly with the transfer of the Indian Office from the War Department to the Department of Interior in 1849. Along the way, there came a shift in the Federal approach with Natives--from promoting trade with them, to seeking their outright removal from the path of the expansive desires of colonizers. With this new attitude came the idea of reservations, an official policy of “protecting” Indians and their welfare by relocating them to faraway lands. Meanwhile, the National Parks were created with Yosemite and Yellowstone in 1864 and 1872, respectively. After inheriting land surrendered by Natives in bloodshed, President Lincoln created Yosemite and gave it to California to manage; it represented the worst outcome for Native/white relations and made it “difficult for any park to build a worse record.” In 1890, 40 years after the Mariposa Indian War that preceded Yosemite's founding in 1864, dozens of Natives who still wandered Yosemite's vast lands petitioned Congress for a million dollars in gold for victimization, tyranny, and oppression. The petition was futile, and still, “[t]oday Indians at Yosemite demand that their story be told accurately and their culture be recognized.” Less bloody was the founding of Yellowstone, America's first national park; except, not only were Natives unwelcome in the park, the Nez Percé incident in 1877 rewrote the record to exclude Native connection to Yellowstone altogether. Such problems persisted in other park foundations as well. Even today in Grand Canyon National Park (GCNP), Indian welfare is a neglected afterthought in the shadow of a sinister foundation. As Sarah Krakoff writes:

The GCNP as a whole is ringed by industrial landscapes (uranium mines, coal-fired power plants, and coal strip mines) that make possible the West's metropolises of Phoenix, Tucson, Las Vegas, and Los Angeles. The Havasupai, Hualapai, Hopi, and eight other American Indian Tribes were violently displaced from their aboriginal lands in order to create “public” land that became the basis for the National Park, even as their resources were recruited to build up the West's cities and suburbs. Within the Park, racial and gender hierarchies play out in ways that belie the notion that wild places are ever truly separate from human frames, even when we establish them with the goal of being so. further understand the National Park Service's mismanagement of Indian Nations, it should be noted that the NPS inherited distortions and ignorance about Native history, perhaps without the necessary resources to set the record straight. The whole point of creating the NPS was to clean up some of the mismanagement that resulted from the fast land-grabbing of the Antiquities Act of 1906. Still, the NPS is looked fondly upon today, though it is one of the only federal agencies that strictly costs taxpayers money. Perhaps the trust lies in the nature of the NPS and its mission, whereas the BIA seems to experience the opposite sentiment. Nonetheless, NPS admiration is not universal. Park supervisors have faced criticism for “naïve” and “superficial” knowledge of Native Nations while attempting to fulfill their interests. Questions endure about the effectiveness of the NPS, successes or failures aside. all of this, Treuer's proposition in The Atlantic appears more than relevant. However, upon analyzing the history of Tribal-Park relationships, alongside their likenesses and divisions, one may find that Treuer's proposition rests on shaky ground. The hazardous restraint on Native Nations today is not necessarily the DOI, BIA, or NPS themselves, but the disjointed matrimony between the federal government and Native Nations--the trust responsibility. This relationship, born out of the colonial expansion, is a web of confusion and has historically done more harm than good. Recently, Adam Crepelle described the trust responsibility succinctly:

Soon after the nation's inception, the United States implemented a series of laws governing Indian trade. The laws were supposedly designed to protect Indians from unscrupulous dealings with non-Indians because Indians were deemed incompetent. In 1823, the U.S. Supreme Court decided that the United States owned the Indians' land and the Indians merely occupied it. The Supreme Court later built upon this principle to classify tribes as “domestic dependent nations” rather than full sovereigns and named the United States guardian of the Indian wards. Indians lost their freedom. approaching Indian Law issues requires an understanding that the “[l]egal history of the indigenous peoples of the United States influences every new problem in Indian Country that arises for resolution before a court of law, today.” Courts, to make accurate and just decisions that pave a meaningful way forward while acknowledging sins of the past, must consider the history that Native Americans have with the land of their ancestors, their current desire to return to their sacred land, and the costs/benefits of reparations in the United States of America. Without these considerations, courts may never steer far from their own definition of the federal government's relationship with Native Nations: “bureaucratic imperialism.” rest of this Note proceeds as follows. Part I's first sections will briefly survey the timeless arc of the Native American's relationship with their land. Part I's later sections will examine Native Nations' relationship with the Highest Court in the land, including foundation cases that gave rise to the trust responsibility. Part II will take specific note of a National Park in the ongoing saga a Native Nation has within it. Part II will also assess the reparations movement in the United States and the pros and cons of the Pandora's box of acknowledging past sins in such a manner. Part III will return to David Treuer's argument, seeking to answer the questions posed by West, Brechin, Keller, and Turek, the authors who sought to keenly understand the implications of National Parks and indigenous peoples (much like the Natives themselves know their land), from today's prospective vantage point. Part III will then suggest an approach for the U.S. legal system and for Native Nations going forward that may bring peace and harmony to suffering, stricken people. This Note seeks to make the case that decolonization and self-determination are the pathways to Indian/tribal justice that extend beyond troublesome claims for reparations.

Catlin's nostalgia for harmony between Native Nations and America's great National Parks was not in bad faith. Tweaking the trust responsibility, among other strategies, forges a more positive relationship for Native Nations in America, one that can culminate in a National Parks co-management that allows tribes the “return” to their ancestral lands, too.

Professor Crepelle, just this year, wrote, “[o]nce the unconstitutional white tape is peeled from Indian country, tribes must be empowered to self-govern.” Professor Crepelle echoed President Reagan and President Nixon, whose goals for Native Americans were self-determination and self- government. Professor Crepelle continued: “Tribal self-determination and Orwellian federal oversight are entirely at odds .... As long as federal Indian law remains underpinned by archaic assumptions about the United States' indigenous peoples and that might makes right, Indians will remain a conquered people living under an immiserating colonial regime.” This proposal is not without risk. As Professor Vickie Sutton points out, “why do we not just unravel all of these cases and invalidate their holdings ... [t]hat might be technically possible, but it would undo commitments, policies, treaties and law that tribes, as well as anyone interacting with tribes, have come to rely on in investing time, resources and their future.” Note will untie some laws so that tribes may be self-empowered to find a new way in America, on its reservations, and in its National Parks. As will be understood, “[t]he greatest and most troubling conflicts are not between good and evil, but between good and good.” . .]

For Native Nations to prosper, there is quite a bit of work to do. It is very, very difficult to solve a problem. One of this magnitude and implication deserves utmost care to even attempt, but it is possible. Do Americans choose to adopt the ethos of the United Nations Declaration on the Rights of Indigenous Peoples and fulfill the metaphysical and epistemological narrative structure of Native Nations? Do we codify the personhood of land or spirit? Natives know the answer since they were placed on the land for a purpose, so “[r]ather than accepting the current status of domestic law, indigenous peoples must invoke the legacy of their ancestors, channeling the life force that persists, endures, and ultimately flourishes in service of indigenous self-determination.” to questions about Native futures are varied, but there is no dispute that Native essence is inexpungible and encapsulated in the American spirit. Lawyers can advocate for Native Nations this way: “[r]eference must be made again and again to the central importance of land and sovereignty to the identity of Indians as a people, to the long and ignominious history of mistreatment, and to the rights of political association the Court has protected under the first amendment.” Native Americans, to the same extent, need to be divorced in certain respects from an oppressive federal government and allowed self-determination in conjunction with the opportunity to co-manage National Parks.

Native Nations are the most disadvantaged people of America by any measure, with a government “guardian” that does not provide enough sustenance--mentally, spiritually, or physically. With co-management legislation of National Parks, Native Nations have the choice to increase their prosperity and richness in the world. What may happen is--through the affluence of being reconnected to Native land--many young Natives will go to cities and/or universities once they become of age, and the bright, new generation will return the skills and knowledge to their homelands. In turn, the younger generation will bestow a sense of great spirit back to the people. Simultaneously, there will be less and less need for horizontal expansion into land territories by the government, and more lands will become protected from environmental turbulence, freeing those same lands to be returned for Native use and occupation. This Note does not suggest title to public lands of the United States be a reparations package to Native Nations. Instead, the Note argues for occupancy, free use for religious ceremony, hunting, fishing, and gathering. Co-management can be effective without agricultural or urbanization developments.

This Note was an attempt to look at the pain and suffering of Native Nations, an existential pain that makes people question the meaning of life. Perhaps the only functional way to not interpret pain and suffering as life's meaning is to take responsibility and seek to rectify such pain for others. The trend is to weaponize guilt. While American soil is soaked with blood, people must not despair--or that despair will be exploitable. Instead, let us stand together as on Nation. Professor Singer explained that one way “to move beyond our past sins of conquest and racial oppression” is to recognize the special Native claim. Pope John Paul II once echoed the great Native philosopher Vine Deloria, Jr., when he wrote, “God gave the earth to the whole human race for the sustenance of all its members, without excluding or favouring anyone. This is the foundation of the universal destination of the earth's goods.” He understood the importance of land to its people, explaining, “the earth does not yield its fruits without a particular human response to God's gift, that is to say, without work. It is through work that man, using his intelligence and exercising his freedom, succeeds in dominating the earth and making it a fitting home.” The Pope wisely concluded, “this is the origin of individual property ... [man] must cooperate with others so that together all can dominate the earth. In history, these two factors--work and the land--are to be found at the beginning of every human society.” If Americans unite, faithful indigenous justice will be uncovered, and our human society will prosper further.

Brett Gabriel Roberts is a J.D. Candidate at Ave Maria School Law, Class of 2023.