Congress Whispers, Reservation Nations Endure

My Country, ‘tis of thee, sweet land of Liberty, of thee I sing.

America’s national ideals of Life, Liberty and Happiness have always functioned within a legal infrastructure, one comprised of both houses of Congress, the Office of the Presidency, and a national system of federal courts. Together, these three distinct power centers set all national policies, administer all federal programs, and defend the U.S. Constitution. But it is Congress, the repository of the combined intellect of the House of Representatives and the Senate, which creates all U.S. public laws. And it is Congress which constructs the wording that provides all Americans an architecture from which to suspend their own visions of America’s promise: “Life, Liberty, and … Happiness.”

Congressional Lawmaking

U. S. PUBLIC LAWS

Congress expresses the will of the American People through the national policies it proposes, considers, and, in some cases, votes into law. This public lawmaking happens in a congressional whirlpool of conflicting parties, contrasting priorities, and cantankerous mindsets. From the earliest legislative days to the present, special interest groups have influenced policy-making by promoting their own economic and social power agendas to federal legislators, and their state and local constituencies. Contemporary special interest groups include forces Dwight D. Eisenhower once dubbed “the military-industrial complex,” as well as the insurance industry, energy conglomerates, banking and finance industries, consumer groups, religious organizations, health advocates, large non-governmental organizations, and scores of other small-to-global corporate and nonprofit players. Examples of the more ennobling and enduring historical outcomes of this ongoing congressional activity include the nation’s national parks system, child labor laws, and safer workplaces. Other culturally adaptive outcomes include the near eradication of polio in the United States, the increased safety of highways and bridges, the preservation of green spaces for wildlife, child protective services, and cleaner air.

Every federal law is a public law and a time-stamped legislative action. By casting winning votes, legislators collectively create public laws that assert mechanisms of control over the behaviors or resources of the citizenry. Public laws resonate with the voice of the people and constitute the essence of public policy. In theory, the purpose of all public lawmaking is to support the public good. The extent to which any given public law affects each individual citizen is weighted by pertinent personal, local, and regional circumstances. Obviously, laws that fund health services for low-income children affect families living at the top of the economic ladder differently than those dangling from the bottom rung, and laws that create construction jobs in Nevada may never make the news in the Sunshine State.

Individual public laws can be confusing in terms of their overall intent. Some contain multiple, and often conflicting, elements. For example, a single legislative proposal may build dissimilar objectives into its text, as when the funding of military equipment upgrades appear alongside funding requests for a renewal of public health services for senior citizens. And although the titles of many public laws reveal their intent, some monikers tell little to nothing about the content of the law; one example, the Indian Employment Act of 1979, did not address any aspect of “Indian Employment,” as its only mandates focused on the distribution of Bureau of Indian Affairs (BIA) retirement benefits to BIA retirees.1 And even when the purpose of a given law is readily apparent, the ramifications of its application are often more oblique.

Whenever Congress is in session, all of its proceedings are public. Every public discussion, oration, filibuster, debate, and call for votes is captured as part of the public record. This written record—the Congressional Record—contains verbatim texts of House and Senate committee reports, proposals, and public laws, as read into the official record prior to the call for votes. Members of Congress, their staff, and the general public can all access these records through the Library of Congress.2 Whether or not there exist any resources that can support a given legislative change is another matter. In some cases, specific changes are mandated by public law, yet no change comes, sometimes due to a lack of funding to support the change initiative. One example is an act dated December 8, 1911, whereby Congress set aside a site on Staten Island as the location of a proposed “Native American Indian Memorial.” The anticipated private funding never materialized. Similarly, Indian Health Service legislation of the 1970s was never applied in a robust manner, as its funding was filtered through a nation-wide competitive system which gave low priority to the delivery of health services on reservations.

PUBLIC LAWS IN THE SHADOWS

Many of the earliest of these laws exhibit reflect the confusion and cultural arrogance of the times, and their mandates continue to challenge the resilience of contemporary tribal communities. Congressional law-making specific to tribes began in earnest in 1819 with passage of the Civilization Act, and continued with the 1830 passage of the Indian Removal Act.3 These early sui generis laws grew out of this nation’s need to mitigate cross-cultural conflicts and manage communications between the United States and a broad range of domestic sovereign nations—American Indian tribes.4 The U.S. Constitution had given Congress the responsibility of regulating trade with federally-recognized tribes through the language of its oft-cited “commerce clause.” Legal scholars, including Vine Deloria, Jr. (here quoted), have identified fundamental expansions in the role of Congress, over time, in its dealings with American Indian tribes.

The commerce clause, Section 8, clause 3 or Article I of the Constitution, gives Congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. In theory Congress should have no greater power over Indian nations than it does over states, but in historical practice such has not been the case. The initial tendency of Congress was to establish the rules and regulations under which citizens of the United States could have trade and intercourse with Indian nations. Early statutes reflect this narrow view of the power and responsibilities of the legislative branch. Within two decades of the adoption of the Constitution, however, Congress began to appropriate funds for the civilization of Indians, and the creation of these kinds of funds represented a fundamental shift in Congress’ view of its powers under the commerce clause. The goal was wholly humanitarian. Faced with the fictional dilemma of either exterminating or assimilating the Indian tribes, Congress chose the latter course, and began to develop a policy that would accomplish this goal.