Native American Affairs and the Department of Defense

The President's April 29, 1994 Memorandum

On April 29, 1994, President and Mrs. Clinton, Vice President and Mrs. Gore, and every member of the President's cabinet (other than the Secretary of State) met with more than 300 Native American^[1] leaders of "federally recognized Indian tribes" on the south lawn of the White House. It was the first time in the nation's history that a President of the United States had held such a meeting.

During the meeting, the President signed a memorandum directing the heads of all executive branch departments and agencies to

• "operate within a government-to-government relationship with federally recognized tribal governments"
• "consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments"
• "assess the impact of federal government plans, projects, programs, and activities on tribal trust resources and assure that tribal government rights and concerns are considered during the development of such plans, projects, programs, and activities."^[2]

Implications of the President's Memorandum for DoD

The Department of Defense (DoD) has a comprehensive natural and cultural resource program that incorporates a wide range of responsibilities that Congress, the President, and sometimes the states have assigned to DoD for the protection of natural and cultural resources on DoD agency–managed land.

The directives contained in the President's April 29, 1994 memorandum are to be carried out within DoD's natural and cultural resources program and are only some of many binding requirements. The way in which the above directives are implemented in the field may vary with such factors as the competing demands imposed by other natural and cultural resource obligations, the individual personalities of DoD installation commanders, the continual rotation of assignments, the DoD land managers' understanding of the reasons the President issued his April 29, 1994 memorandum, and the extent to which it is recognized that vigorous implementation of the memorandum will materially advance DoD's achievement of its natural and cultural resources protection obligations.

It is thus critical for DoD personnel—at many levels of organization—to gain a better understanding of the implications of the President's memorandum for the Department. To give installation commanders and land managers a better understanding of the historical and political circumstances that motivated the President to issue his memorandum, we attempt to answer the following questions:

1. Does the President's April 29, 1994 memorandum reflect a change in Congress or the federal executive branch's political relationship with Native Americans and federally recognized Indian tribes? If so, the DoD agencies should be aware of it.
2. Other than the President's directive that they do so, what reasons does DoD have to implement the April 29, 1994 memorandum?
3. What is the nature of the statutes that require DoD agencies to preserve Native American cultural resources and to involve Native Americans generally—and representatives of "federally recognized Indian tribes" particularly—in DoD agency decisionmaking?
4. How should the DoD agencies interact with Native American groups that are not federally recognized tribes?

A Changing Relationship

Our central observation is that the President's April 29, 1994 meeting with the leaders of the nation's federally recognized Indian tribes symbolizes the growing ability of Native American leaders to influence the development and implementation of federal policies that affect their indigenous constituencies.

During the latter half of the 19th and the first half of the 20th centuries, non–Native American representatives of white "friends of the Indian" organizations were the most influential spokespersons for Native Americans on Capitol Hill and inside the executive branch of the federal government. However, in the 1960s a new generation of Native American leaders emerged who over the past three decades have gained increasing skill in articulating Native American concerns and in influencing the development and implementation of Native American–related congressional and executive branch policies.

Of coequal importance, since 1969 an expanding public interest in Native Americans and their problems has facilitated the ability of Native American leaders to participate in the development and implementation of Native American–related congressional and executive branch policies, and has assisted Native American leaders in developing bipartisan support for Native American programs and policies in the Congress.

We have included two case studies—one from Idaho and another from Alaska—to illustrate the challenges that implementation of federal Native American–related policies can present for DoD installation commanders and land managers in the field. The studies show that morally compelling concerns of Native Americans can be combined with the organizational capability of environmental activists and others to create a political synergy of considerable consequence to the attainment of DoD land management objectives.

Treaties and Statutes

Through its ratification of treaties and enactment of statutes, Congress has imposed numerous Native American–related obligations on DoD agencies. Many of those obligations are similar in their legal structure to those implied by certain natural resource protection laws. They emphasize planning and self-enforcement, and have indirect—though potentially binding—mechanisms of enforcement.

This report reviews the major statutes that require DoD installation commanders and land managers to address Native American concerns, and demonstrates how implementation of the directives contained in the President's April 29, 1994 memorandum can materially advance DoD agency implementation of Native American-related treaty and statutory obligations.

Historical Considerations

DoD agencies and Native Americans share a common belief in the importance of history. Two components of DoD agencies' past involvement with Native Americans can facilitate DoD installation commanders' and land managers' understanding of the President's policy objectives as well as their understanding of the motivations of Native American leaders.

The first component is the unusually large number of Native Americans (as a percentage of the Native American population) who have served in the armed services, which we believe establishes a compelling justification for DoD installation commanders and land managers to vigorously implement the President's memorandum.

The second component is the United States Army's participation in implementing Congress' Indian policies during the 18th and 19th centuries. We discuss the common elements of that history, recognizing that each federally recognized Indian tribe and each Native American group that has not been federally recognized has its own history of involvement with the federal government during the 18th and 19th centuries. DoD installation commanders and land managers who interact with representatives of a particular tribe or Native American group should be aware of the role history may play in the current perspectives of that particular tribe.

Tribes Not Federally Recognized

One of the greatest challenges DoD officials will face in implementing the President's directive is to arrive at an approach for interacting with Native American groups that are not federally recognized tribes.

Because the memorandum directs DoD to "operate within a government-to-government relationship with federally recognized tribal governments" and to "consult . . . with tribal governments," the threshold challenge is to identify Native American groups that are "federally recognized Indian tribes."

The second major challenge is to develop a policy for dealing with and consulting Native American groups that are not federally recognized Indian tribes but with which statutes such as the Native American Graves Protection and Repatriation Act and the Alaska Native Claims Settlement Act require DoD agencies to interact. The development and implementation of such a policy are particularly important with respect to DoD agency relations with Alaska Natives and Native Hawaiians, whose history of involvement with the United States government is different from that of Native Americans who reside in the coterminous states.

We conclude this discussion with a case study from Camp Pendleton, California, that illustrates the importance of having a policy for interacting with Native American groups that are not federally recognized Indian tribes.

Conclusions and Recommendations

Our general argument is that the importance of Native American affairs to the Department of Defense is growing. Just as environmental affairs became a major DoD concern in the late 1980s, a number of factors signal the need to pay increased attention to Native American affairs in the next decade. The DoD should interpret the President's meeting on the White House lawn as symbolic of this.

We argue that the questions posed above should be answered in the following way.

1. The President's directive reflects the growing ability of Native American groups to access the political process and ensure that their interests are represented in legislation. Although there seems to be no congressional interest in financing a broad-based program to remedy the problems of Indian life in America, this increased political influence can result in legislation that has important implications for DoD facilities.
2. The President's directive provides an overarching strategy for addressing diverse and sometimes unpredictable issues that can affect DoD interests and goals. These diverse issues include the potential for Native American claims to affect DoD land-use goals (particularly when the moral strength of these claims is combined with the organizational capability of environmental groups and other well-organized users of the public lands), the potential for some to assert that the Army's historical role implies special obligations for the DoD, and the need to fulfill a variety of statutes related to Native American affairs.
3. A number of statutes obligate DoD to protect Native American artifacts, religious sites, and historic monuments. As with natural resource laws, these laws are far less prescriptive than environmental laws and require a degree of planning and self-enforcement. This implies that they may have low priority in DoD's natural and cultural resource program. However, the political effectiveness discussed above suggests that there may be increased use of these laws by Native Americans and other advocacy groups when seeking to modify federal agency activity. The President's directive provides a general approach to addressing the combined legal, political, and historical aspects of Native American affairs.
4. Although federal recognition is the first test for determining whether consultation is required, there are many unrecognized tribes for which consultation would be in DoD's self-interest. Many statutes already contain obligations to tribes beyond those that are federally recognized. DoD will need to develop tools that facilitate a better understanding of which nonrecognized tribes have legitimate claims and which do not. DoD must be particularly sensitive to these issues in Alaska and Hawaii.

To respond to these general observations, we recommend that the following actions be taken to implement the President's April 29, 1994 memorandum and to improve DoD's working relationship with Native Americans:

• DoD and the services should develop a written policy to guide DoD installation commanders' and land managers' implementation of the President's memorandum. In particular, the policy should instruct DoD installation commanders and land managers to inform the leaders of local federally recognized Indian tribes of their commitment to working with such tribes on a "government-to-government" basis. The policy should recognize that some non-federally recognized tribes should receive the same commitment.
• To begin developing capabilities for determining which nonrecognized tribes have valid claims, histories and maps of prior Native American use of DoD agency-administered land should be made available. Such maps and histories should be useful in preparing for consultations with recognized tribes and in implementing relevant statutes.
• DoD installations should designate a coordinator for Native American affairs to help retain institutional memory and policy expertise. Currently, installations typically rely on the staff archaeologist, who may not have the inclination and training to probe into the policy aspects of Native American affairs.
• DoD should communicate its intention to develop and implement the policies described in the first two bullets above in a highly visible and politically symbolic manner. In 1944, leaders of thirty federally recognized Indian tribes organized the National Congress of American Indians (NCAI). Today, NCAI is recognized by Native Americans as the spokesorganization for all of the nation's federally recognized tribes. NCAI holds an annual national convention. At the 1994 convention, Vice President Gore delivered the keynote address, during which he reaffirmed the President's commitment "to working diligently and respectfully to help American Indians control their destiny, and to preserve the land of their ancestors." The Secretary of Defense or other high-ranking DoD official should consider addressing a future NCAI convention to convey DoD's commitment to implementing the President's April 29, 1994 memorandum and to communicate DoD's intention to develop and implement the policies.
• In consultation with federally recognized Indian tribes and other appropriate Native American groups, the Army historian or a panel of military historians should develop materials that will enable DoD personnel to understand and to respond to questions from both the Native American community and the public regarding the Army's historical role in implementing Congress' 18th and 19th century Indian policies.

In summary, DoD should expect that Native American affairs will be of growing importance to the department, changing from the need to meet a few loosely enforced statutes to a larger awareness involving core DoD interests and goals. DoD will need to develop new capabilities and an increased level of organizational attention.

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Notes

• [1] The term Native American means citizens of the United States who are of American Indian, Alaska Native, or Native Hawaiian ancestry. Some Native Americans are members of federally recognized Indian tribes, and others are not. Congress has enacted statutes that benefit Native Americans generally and other statutes that benefit specific groups of Native Americans—members of federally recognized Indian tribes, Alaska Natives and so forth.
• [2] Office of the White House, Memorandum: "Government-to-Government Relations with Native American Tribal Governments," April 29, 1994.

Topics

• Native American and Alaska Native Populations
• U.S. Department of War/Department of Defense