[Indians’] foremost plight is our transparency. People can tell just by looking at us what we want, what should be done to help us, how we feel, and what a ‘real’ Indian is really like . . . .
In so many ways, Indian people are re-examining themselves in an effort to redefine a new social structure for their people. Tribes are reordering their priorities to account for the obvious discrepancies between their goals and the goals whites have defined for them.
– Vine Deloria Jr.
Introduction
The title “Great White Father”
has always seemed odd to me. Native Americans are well aware of the brutal reality of our experience with American colonialism. It’s hard to forget. And there wasn’t all that much that was “great” about it. It was actually quite crap. Covetous White Father? Dishonest White Father? Cruel White Father? All would be more accurate. “Great” is laughable. “White” is undeniable. “Father”—as it turns out—is the most nefarious and sticky part of this famous epithet.
This use of “Father” is certainly not meant to suggest that America is the source or the creator of Indians. It is utilized, instead, to convey a particular kind of power dynamic.
The American government assumed a position of authority over the Indians and promised them care and protection. Part of the price for this care and protection was land—to be sure—but it was also subordination. Hence the use of a paternal term: Father knows best. He knows what is best for the Indians, even better than they do. Indians were mere children in a “state of pupilage.”
They were, as Chief Justice John Marshall described, “ward[s]” who must ask their “guardian” for “protection,” rely on their “kindness,” and beg for “relief [of] their wants.”
That is why, Justice Marshall explained, “[Indians] address the President as their great father.”
In this case, “Father” is much more than just an assertion of power—it is a justification for it.
What this Piece is—and Justice Marshall was—describing is a view that has permeated much of American colonialism: paternalism. Paternalism has been a powerful force informing the development and execution of America’s policies toward its Indigenous peoples since the very beginning.
Paternalism is also a clear throughline in what might otherwise seem to be significant swings in federal Indian policy throughout most of American history.
The United States could be benevolent or destructive—but it was always paternalistic.
This Piece points out that the core wisdom of what we now call the “tribal self-determination era”
of federal policy over the last fifty years was not only that the United States should support rather than undermine or eradicate tribes but that paternalism was—in every form it has taken—a colossal failure. Moreover, the successes of the self-determination era can and should be defined and understood as a series of steps further and further away from the paternalism of our past and toward a future in which the federal government views its new role as supporting tribal nations as they grow in strength, capacity, and autonomy.
It cannot be understated how hard this has been for the federal government to realize, and how much harder, even, it has been for the federal government to implement this insight. This difficulty persists because supporting tribal self-determination has required something that is exceptionally hard for anyone—whether the government or a person—to do: recognizing failures, acknowledging limits, and, ultimately, giving up power or control.
In the self-determination era, we have been watching the United States government admit the failures of its past policies, recognize the limits of its own competency, acknowledge the shortcomings of its expertise, and, more challengingly, demonstrate its willingness to relinquish some of its power.
In other words, the Great White Father has had to admit that he isn’t the government best positioned to care for the Indians and that he does not, in fact, know best.
This Piece makes this descriptive contribution to our understanding of the self-determination era. We can understand the progression of tribal self-determination policies over the last fifty years as increasing departures from paternalism.
The tribal self-determination “era,” this Piece argues, is best understood as three distinct though overlapping phases of federal Indian policy development—so far. And each one is best understood as taking an additional significant and distinct step away from paternalistic federal policies. Paternalism has become, this Piece argues, somewhat of an anti–North Star for the transformative federal Indian policies of the last fifty years and can continue to serve as that anti–guiding light for further federal Indian law and policy development.
The first phase of tribal self-determination is epitomized by the Indian Self Determination and Education Assistance Act of 1975 (Indian Self-Determination Act).
In this phase of federal policies, the federal government first began to step away from administering vital social service programs for Indians—for the first time allowing tribes to administer these programs themselves.
Tribes were recognized as competent sovereigns that were capable of running federal programs.
What this Piece calls the second phase of tribal self-determination is best characterized by President Bill Clinton’s seminal Executive Order 13,175: Consultation and Coordination with Tribal Governments.
In this order, the federal government articulated policies that not only continued supporting tribes as they took on more and more of the work of providing social services for their citizens but also looked to tribes for input on the federal policies that affected them.
Tribes were seen as more than competent; they had a unique perspective and valuable information about how these programs worked that ought to then shape the laws and policies that affected them.
Finally, we ought to notice the unique and powerful innovations that have defined the third phase of federal self-determination that was championed by the Biden Administration.
These federal policies have taken things a step further and recognized that tribal nations possess more than just valuable information. The federal government—most notably the executive branch—has gone out of its way to recognize the unique expertise of tribal nations and the superior decisionmaking of tribal leaders on tribal issues and to bolster tribal autonomy or share decisionmaking power with tribes whenever possible. This era’s innovations are epitomized by Executive Order 14,112: Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination,
and the rise of comanagement and costewardship of federal lands and waters.
It is a mistake to overlook these distinct iterations of federal law and policy over the last fifty years by lumping them all together as one broad era of tribal self-determination. As this Piece illustrates, a more complex understanding can help us not only understand our recent past but also design better laws and policies for our future. To that end, this Piece ends with three gestures toward the future. First, this Piece calls on the Trump Administration and Congress to maintain or expand the progress made by the Biden Administration in championing a third phase of tribal self-determination. Second, this Piece suggests that the next Democratic President and Congress should embrace the potential seeds of the next phase of the tribal self-determination era that were sown by the Biden Administration, including by supporting policies on federal funding reform. And finally, this Piece notes what the federal courts—comprising a branch of the federal government that has been largely absent from this revolutionary change in thinking—might learn from these policy innovations and how they may change their decisionmaking as a result.
I. Diagnosing Paternalism
Before discussing the renaissance of tribal nations that the tribal self-determination era has made possible, it is worth pausing on paternalism itself. The prevalence of paternalism in federal policy prior to the 1970s is well documented,
and the presence of different flavors at different moments throughout the history of federal Indian policy—assimilation, destruction, termination, and so on—is not important to the core claims of this Piece. What is relevant to this Piece, however, is to think about the ideological foundations of paternalism and how they take form within federal policy.
Colonialism can involve many forms of violence: displacement, destruction (actual death or cultural/political death through assimilation), and subordination (structural or political).
Paternalism can be a motivating ideology that justifies these violent colonial practices as well as something that shapes how these policies are executed. Paternalism is a combination of power, control, and infantilization.
It is arrogance personified as policy.
Federal paternalism toward tribal nations involved an exertion of both decisionmaking and administrative power over Native peoples and tribal nations, particularly after Congress officially ended treaty-making with Indian tribes in 1871.
Tribes were no longer even the weaker party in bilateral agreements; they were the subjects of federal policymaking by a government and electorate that did not include them.
Tribal nations were viewed as inferior, primitive, and dependent peoples who needed assistance from the United States.
The belief in American superiority that was required to justify this kind of paternalism was wide-ranging and deep-seated. American policymakers needed to believe that they possessed superior intellects, superior access to information, superior decisionmaking power, superior administrative capacity, and so on. The United States’ policies themselves could be benevolent
or destructive,
but they were always arrogant. And they were also disastrous.
II. The Evolution of Federal Indian Policy in the Self-Determination Era
The pivot away from paternalism to self-determination policies in the 1970s has been nothing short of transformative for tribal nations.
Tribal government institutions were decimated by American colonialism.
But the United States’ response was not to help tribal governments recover and rebuild but to paternalistically step in itself. Instead of social services and support coming from tribal governments, by and large the United States federal government developed a variety of basic social service supports that were administered directly to reservation residents.
Native people were used to—quite literally—having to go to the Great White Father when they were sick,
when they were hungry,
and when they needed housing.
This was the general state of things until the 1970s.
This Piece is less concerned with the causes of the change in federal policy in the 1970s from paternalism to self-determination. There has been a large amount written about it already, with some crediting Red Power activism, President Lyndon B. Johnson’s Great Society programs, tribal leaders’ and tribal organizations’ advocacy, combinations of these efforts, or other events entirely.
What is important to this Piece is not why these policies came to be, but what these policies were—their ideological bases and how they worked as legal and administrative changes.
The self-determination era can be separated into three rough phases of federal policy, each one taking a distinct new step away from paternalism. The first phase of tribal self-determination was chiefly about transferring administrative control to tribal governments.
The second phase of tribal self-determination was about listening to tribal governments when developing federal policy that affected them.
And, finally, the third phase of tribal self-determination was characterized by the federal government deferring to tribal decisionmaking, utilizing tribal expertise, and collaborating with tribal nations—putting tribal leaders more directly in the driver’s seat of federal policy.
These phases overlap somewhat and necessarily include some generalizations that help us categorize overall conceptual developments and policy changes over time. This Piece makes no claims to a precise or definitive historical categorization. Separating these phases out, however, provides clarity to historians and policymakers who are trying to better understand or expand on the distinctive developments in tribal self-determination policies over the last fifty years.
A. The First Phase of Tribal Self-Determination Policies: Transferring Administration
The first phase of tribal self-determination began in the 1970s. One of the key documents for understanding the ideological foundation of these early policies was President Richard Nixon’s Special Message to the Congress on Indian Affairs, which he delivered on July 8, 1970.
Nixon rejected the “suffocating pattern of paternalism” in American policies, stating that “[e]ven the Federal programs which are intended to meet [Indians’] needs have frequently proven to be ineffective and demeaning” and noting that these policies “denied [Indians] the opportunity to control their own destiny.”
He stated that it was “past time that the Indian policies of the Federal government began to recognize and build upon the capacities and insights of the Indian people” and that “the time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions.”
Federal policies had created, among reservations, “excessive dependence” on “outsiders who are responsible and responsive to Federal officials in Washington, D.C., rather than to the communities they are supposed to be serving.”
Summarizing the theory behind his new proposed policies, he stated:
This, then, must be the goal of any new national policy toward the Indian people: to strengthen the Indian’s sense of autonomy without threatening his sense of community. We must assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support.
Nixon’s vision was, undoubtedly, a bold version of self-determination—one that reflected a commitment to tribal autonomy and independent decisionmaking. But the vision was mostly focused on ending Indian dependency on federal agencies and the coercion created by federal control over programs. Nixon viewed the core failing of federal policy as federal control, without much talk of the arrogance of designing federal programs for tribes.
Tribes running these programs themselves—just like other federally funded programs that were administered by local authorities
—was the goal, not retooling the core function of the programs themselves. Non-Native federal employees would be replaced by Native ones, but little else would drastically change. Tribal control was sold as a form of “local control,” which was primarily important for creating jobs for tribal citizens and thus ensuring that federal dollars were more effectively making it into tribal economies.
Moreover, this proposal was heard in the context of the passage of the Indian Civil Rights Act of 1968, which ensured that tribal governments were not violating many of the protections contained in the federal Constitution’s Bill of Rights.
The most important law to come out of this first phase of tribal self-determination was the Indian Self-Determination Act,
which Nixon introduced in his remarks. Nixon described legislation that would allow tribes to choose whether they wanted to take over federal programs,
and federal administrators would not be able to manipulate the terms of a tribe’s takeover by threatening to reject a tribe’s request.
Nixon also emphasized the importance of the federal government adequately supporting this transition to tribal control by funding tribally controlled programs and providing additional technical assistance to tribes as they take over the federal programs.
Finally, Nixon wanted to enable tribes to similarly negotiate takeover agreements with states and to preserve federal employee benefits so that federal employees who left their jobs to work for tribes would not be disadvantaged.
Not all of these core tenets or policies Nixon envisioned made it into the Indian Self-Determination Act. The Act’s findings and policy statements did not talk about giving Indian people control over these programs but rather emphasized giving Indian people a “voice” and ensuring their “meaningful participation” in the “planning, conduct, and administration” of these federal programs.
Moreover, the federal government retained the ability to reject requests for tribal contracts based on federal findings of tribal inadequacy
and to hold onto grant or contract funding when it was not satisfied that tribes could satisfy federal administrators’ standards for a quality education.
Broadly speaking, in this first phase of policies, the federal government began to step away from administering vital social service programs for Indians—allowing tribes to administer these programs themselves for the first time.
Tribes were recognized as sovereigns that were capable of taking over federal programs. And thus, the first phase of tribal self-determination policy was focused primarily on rebuilding the basic infrastructure necessary for tribal governance. This initiative has been—by all accounts—wildly successful.
There has been, moreover, an undeniable renaissance in tribal institutions and tribal lawmaking. An indicative statistic is the number of tribal courts, which has more than doubled. In 1976, a federal task force estimated that there were 117 tribal courts.
Today, there are 234 tribal courts serving the 345 federally recognized tribes in the lower forty-eight states.
On the economic front, numerous scholars have documented that economic metrics such as income and poverty levels have improved noticeably for reservation residents since 1975 and have credited the self-determination era’s policies of promoting tribal government institutions and economic development with this success.
B. The Second Phase of Tribal Self-Determination Policy: Seeking Tribal Input in Federal Program Design
The second phase of tribal self-determination is epitomized by President Clinton’s Executive Order 13,175: Consultation and Coordination with Tribal Governments.
Though this order was signed in 2000, it built on a commitment to tribal consultation that began in 1994 under the Clinton Administration.
Notably, the order’s preamble discussed the “government-to-government” relationship between tribes and the federal government.
This statement reflects the growing policy justification that tribes were more than just sovereigns capable of running federal programs for themselves—they were worthy of respect and the ear of the federal government in policy development. This phase of policies emphasized strengthening and formalizing the relationships between tribes and the federal government to include regular discourse. While not yet a rejection of the belief that the federal government ultimately knew better than tribes, it was a recognition that the federal government ought to listen to tribal leaders when making policy that would affect them. This insight was particularly necessary since tribal governments, despite being no less a part of America than state governments, lack the ability to send representatives to Congress.
As such, without mechanisms like consultation, tribal voices had no structural place in the federal policymaking process. The Clinton executive order directed each federal agency to create “an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications” and to compile a “tribal summary impact statement” for policies with tribal implications, documenting the consultation, summarizing tribal concerns, and explaining whether and how the agency addressed those concerns.
The provisions on tribal consultation contained in sections 5 and 7 of the executive order included clear instructions for creating processes, designating responsible officials, and, most importantly, requiring agencies to certify their compliance with their consultation obligations in their regulatory or legislative submissions to OMB.
It seems trivial, but federal agencies are truly forced to remember their obligation to consult by this paperwork obligation to certify their compliance. When it’s missing, it’s a problem that can hold up regulations entirely,
so agencies take seriously their obligation to at least say something about their attempt to consult.
Tribal consultation is often faulted for not being a stronger accountability mechanism.
But it was a significant step forward in federal policy development—particularly in the context of such a long history of paternalism in the federal decisionmaking process. Indeed, this was the same federal government that once infantilized and dismissed tribal governments altogether.
Throughout American history, tribal leaders have always come to Washington to voice their concerns.
Tribal consultation, however, ensured that Washington would seek out tribal leaders for their input.
Tribal consultation was not just important for giving a voice to tribal leaders in the federal policy development process, it also helped create a more structured relationship between the federal government and tribal sovereigns. Consultation created records of federal government officials’ meetings with tribal leaders, documented the concerns discussed, required some form of federal response, and, overall, provided the scaffolding for a new relationship between tribal governments and the federal government.
Consultation was not without its unexpected consequences. The breadth of the consultation mandate included in Executive Order 13,175 meant that the federal government was obliged to seek tribal input about all policies that might affect tribes.
This meant tribes were providing input and insisting on tribal consultation not just for the federal actions and policies that were the core parts of self-determination but also for federal actions and policies for which tribes were just one of many affected government and nongovernmental constituencies.
Honoring tribal sovereignty is also about listening to and incorporating tribal opinions, so casting such a wide net over policies eligible for tribal consultation set the federal government up to disappoint tribes. In these broader areas (including, in many cases, the general process for notice and comment rulemaking), tribal input can become one of many—rather than the most relevant and insightful—opinions from an outside stakeholder.
Moreover, this kind of consultation is a mismatch with the core goal of the self-determination era: to end federal paternalism and rebuild tribal control over tribal affairs. The purpose of self-determination is to end federal control of tribal affairs and empower tribal control, not to give tribes more of a voice broadly across federal policy development. This is not to say that tribes shouldn’t have more power in the federal government,
but if tribal power within federal policy development generally is the goal, there are better and more robust ways
to get there than through a glorified notice and comment process.
Broad consultation, perhaps inadvertently, diluted the strength of the tribal-sovereignty and self-determination justifications for consultation in the first place and made tribes stretch their resources by giving them the opportunity to weigh in on—or insisting that they weigh in on—any policy that affected them.
Tribal consultation was not the only second-phase policy that helped build the tribal–federal relationship and provide structured engagement between sovereigns. The second policy worth noting is the development of the Tribal Nations Conference under the Obama Administration. In 1994, President Clinton became the first President to formally invite all tribal leaders to Washington.
A former Clinton Administration staff member, however, described that meeting as being more about “symbolism” than substance.
President Barack Obama made a campaign promise to hold what was initially called a “Tribal G8” gathering to bring tribal leaders together to meet with the President to discuss and shape the federal government’s policy agenda for tribal nations.
In his first year in office, Obama kept that promise and held the first White House Tribal Nations Conference on November 5, 2009.
The conference became an annual occurrence during the Obama Administration.
The federal government not only continued supporting tribes as they took on more and more of the work of providing social services for their citizens but also looked to tribes for input on the federal policies that affected them. In this phase of policy, tribes were more than competent: They had a unique perspective and valuable information about how these programs worked, which ought to shape the laws and policies that affected tribal governments.
This phase of policy was fundamentally about building respect and communication between tribes and the federal government.
III. The Third Phase: Letting Go of Control Over Federal Funding and Recognizing Selective Areas of Superior Tribal Decisionmaking
We just witnessed a third phase of federal Indian self-determination policy take shape in the Biden Administration. In many ways, these innovations were the next step forward. While the first phase of self-determination was about transferring administration of federal programs, this third phase is about transferring more decisionmaking authority and control to tribal governments. And while second-phase consultation policies recognized that the federal government needed to listen to tribal leaders when it was making decisions, third-phase policies recognize that tribal leaders are better decisionmakers than the federal government about the needs of tribal lands and communities. The federal government understands that the best policies involve exercising federal humility and deference, taking a hands-off approach, or seeking out ways to make tribal governments decisionmaking partners.
Viewed through the antipaternalism lens of this Piece, this third phase of policies recognizes that (1) even well-intentioned or run-of-the-mill requirements or limitations on federal dollars are felt as vestiges of paternalistic control of tribal governance
and (2) tribal governments—not the federal government—are the experts in what is best for their citizens, so good federal Indian policymaking requires federal humility and trusting tribal priorities.
A. Promoting Tribal Control and Trusting in Tribal Priorities: The Tribal 477 Program and Executive Order 14,112
An important seed of the ideology that has come to dominate third-phase tribal self-determination policies was sown in the 1988 amendments to the Indian Self-Determination Act.
In these amendments, Congress allowed tribes to bundle together multiple federal program contracts to lessen administrative burdens.
It also authorized the Tribal Self-Governance Demonstration Project, a pilot program for twenty tribes.
Moreover, tribes could—for the first time—exercise more autonomy and flexibility over this funding in view of their leeway to “redesign programs, activities, functions, or services.”
Four years later, Congress made tribal self-determination policies permanent.
Under the Indian Self-Determination Act’s contracting and compacting policies, tribal governments have flourished.
But self-determination was never a blank check written to tribal nations—it merely allows tribes to negotiate compacts and even more rigid contracts that detail how the tribe will run the formerly federal program.
The terms of these agreements limit tribes’ ability to use the funding in the ways they need.
And the paperwork burden associated with applications and compliance is astronomical.
This is particularly concerning because the stakes for the accessibility and flexibility of tribal access to federal funding are exceptionally high. Tribes rely extensively on federal funding
—not because they want to, but because they have no other choice. Tribes cannot effectively raise revenue through the normal means—taxes—for four main reasons.
First, American colonialism decimated tribal government institutions and economies—leaving most tribal governments without an economically prosperous tax base from which to raise revenue.
Second, the federal government—not private individuals—holds the title to reservation lands, which means that tribal governments cannot rely on property taxes as states do, only sales or income tax.
Third, the Supreme Court has significantly limited tribes’ ability to tax non-Indians on their reservations, meaning that even if tribes have successful businesses on their reservations, they are often unable to profit from the economic draws they have created.
And, finally, the Supreme Court has allowed states to tax non-Indian activities on tribal land, which effectively cuts tribes out of many creative attempts to tax since these taxes would be “double taxes.”
That leaves tribes with two primary sources of funding: (1) tribally run businesses—most notably casinos—and (2) federal dollars.
Since casinos are not significant sources of income for the vast majority of tribes, federal dollars are a vital source of funding for tribal self-governance.
Tribes rely not only on federal dollars through self-governance contracts and compacts but also on federal grant funding, which often requires tribes to compete against one another.
Enter the Biden Administration, which took lessons from the success of tribal compacting and the struggles over the rest of federal funding accessibility, equity, and flexibility. The Biden Administration demonstrated a keen awareness that red tape and administrative burdens attached to federal funding are a serious impediment to tribal self-determination since they impose real costs on tribal governments that can prohibit access or limit the effectiveness of programs.
What’s more, the Administration recognized that the strings attached to federal funding also limit the effectiveness of federal programs because tribes—which, as the on-the-ground providers and community experts, know best what their communities need—are unable to flexibly utilize funding to meet the needs of their citizens.
These funding limitations or bureaucratic hurdles are not necessarily rooted in skepticism of tribal government competence; they are often rooted in the very well-intentioned desire to ensure that federal dollars are spent in the way Congress intended.
The Biden Administration took several actions that reflect the insight that less control and more deference to tribal priorities in federal policymaking is more efficient and effective: most notably, reinvigorating the Tribal 477 Program and issuing Executive Order 14,112.
1. The Tribal 477 Program Reinvigoration and Implementation. — The Biden Administration was particularly creative in breathing new life into old laws to meet the third-phase policy goals of supporting tribal autonomy and increasing reliance on tribal decisionmaking. In one such example, the Administration reinvigorated what is known as the Tribal 477 Program (477).
477 is so-called because of its statutory authority, Public Law 102-477: The Indian Employment, Training and Related Services Demonstration Act of 1992.
Originally passed in 1992, 477 allows tribes to consolidate various federal grant programs related to employment, training, and other services into a single, cohesive plan, budget, and reporting system managed by the Bureau of Indian Affairs (BIA).
Integrating this funding significantly reduces the administrative burden on tribes and allows them to take the funds they get from different federal agencies and treat them like one pot of funds utilized to support a single tribal initiative.
This increased capacity and flexibility allows tribes to more efficiently and effectively provide services. But 477 was met with early skepticism.
Federal agencies are required to transfer their funds to the BIA to participate in 477 and to trust the BIA to develop an appropriate oversight process for their dollars.
Unsurprisingly, the many different federal agencies that administer programs that support tribes
are protective of their funds and their oversight responsibilities. As such, 477 was plagued by decades of interagency disagreements and attempts to resolve these disagreements across different presidential administrations.
Both the Bush and Trump Administrations proposed additional administrative burdens for 477, which were vehemently opposed by tribes.
After the expansion of 477 with Public Law 115-93 in 2017, federal agencies had one year to design and ratify an agreement to implement the program, but then, in 2018, the Trump Administration signed a memorandum of agreement without consulting tribes—a decision that had a chilling effect on tribal nations’ use of 477.
While up to 250 tribes had opted into 477 by 2015,
by 2017, only sixty-five tribes had 477 agreements.
By 2019, that number had only grown to sixty-seven.
Once the Biden Administration took office, it prioritized resolving the issues with 477. Less than one year into the Administration, it announced that twelve federal agencies had agreed to a new memorandum of agreement on how to implement 477.
By fall 2022, 292 tribes had 477 agreements,
and tribes that utilized 477 largely praise the program as allowing for vital flexibility and improving efficiency.
2. Executive Order 14,112. — In 2023, President Biden issued Executive Order 14,112: Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination.
This executive order was, as its title suggests, about promoting the “next era” or, in the language of this Piece, the “next phase” of tribal self-determination policies.
Its policy foundations were exceptionally clear:
Now is the time to build upon this foundation by ushering in the next era of self-determination policies and our unique Nation-to-Nation relationships, during which we will better acknowledge and engage with Tribal Nations as respected and vital self-governing sovereigns. As we continue to support Tribal Nations, we must respect their sovereignty by better ensuring that they are able to make their own decisions about where and how to meet the needs of their communities. No less than for any other sovereign, Tribal self-governance is about the fundamental right of a people to determine their own destiny and to prosper and flourish on their own terms.
Executive Order 14,112 was about demonstrating respect for tribal sovereignty by giving tribes greater autonomy over how they invest federal funding. The order directed all federal agencies to support tribal self-determination by reforming federal funding programs’ design and administration to take a more hands-off approach that cut down administrative burdens and funding limitations—reflecting a trust in tribal priorities and deference to tribal decisionmaking.
The Biden Administration was not the first administration to acknowledge this problem with federal funding accessibility, equity, and flexibility.
Though this aspect of Clinton’s executive order on tribal consultation is rarely discussed, section 3 set forth that:
[T]he Federal Government shall grant Indian tribal governments [administering federal statutes and regulations] the maximum administrative discretion possible.
. . . When undertaking to formulate and implement policies that have tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to achieve program objectives;
(2) where possible, defer to Indian tribes to establish standards; and
(3) in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.
Moreover, there was a directive in section 4 that “[a]gencies shall not submit to the Congress legislation that would be inconsistent with the policymaking criteria in Section 3”
and a directive in section 6 that agencies streamline the process by which tribes “apply for waivers of statutory and regulatory requirements” and aim to be as flexible as possible in granting those waivers.
These are undoubtedly bold and important directives previewing third-phase thinking. What differentiates this lesser-known provision of the executive order from its better-known provisions on tribal consultation is the complete absence of the enforcement or accountability mechanism discussed above. Moreover, the directives are phrased at a very high level of generality, which leaves agencies without a clear idea of what complying with that directive actually means or, even worse, broad wiggle room to say that some bare minimum consideration complies with the directive.
What set Executive Order 14,112 apart from these prior directives was its specificity. Not only were there generalized policy directives about the importance of minimizing burdens, but there was also a very specific list of nine agency actions that comply with the order contained in section 5.
Agencies were directed to:
(i) promote compacting, contracting, co-management, co-stewardship, and other agreements with Tribal Nations that allow them to partner with the Federal Government to administer Federal programs and services;
(ii) identify funding programs that may allow for Tribal set-asides or other similar resource or benefits prioritization measures and, where appropriate, establish Tribal set-asides or prioritization measures that meet the needs of Tribal Nations;
(iii) design application and reporting criteria and processes in ways that reduce administrative burdens, including by consolidating and streamlining such criteria and processes within individual agencies;
(iv) take into account the unique needs, limited capacity, or significant barriers faced by Tribal Nations by providing reasonable and appropriate exceptions or accommodations where necessary;
(v) increase the flexibility of Federal funding for Tribal Nations by removing, where feasible, unnecessary limitations on Tribal spending, including by maximizing the portion of Federal funding that can be used for training, administrative costs, and additional personnel;
(vi) improve accessibility by identifying matching or cost-sharing requirements that may unduly reduce the ability of Tribal Nations to access resources and removing those burdens where appropriate;
(vii) respect Tribal data sovereignty and recognize the importance of Indigenous Knowledge by, when appropriate and permitted by statute, allowing Tribal Nations to use self-certified data and avoiding the establishment of processes that require Tribal Nations to apply to, or obtain permission from, State or local governments to access Federal funding or to be part of a Federal program;
(viii) provide Tribal Nations with the flexibility to apply for Federal funding and support programs through inter-Tribal consortia or other entities while requiring non-Tribal entities that apply for Federal funding on behalf of, or to directly benefit, Tribal Nations to include proof of Tribal consent; and
(ix) provide ongoing outreach and technical assistance to Tribal Nations throughout the application and implementation process while continually improving agencies’ understanding of Tribal Nations’ unique needs through Tribal consultation and meaningful partnerships.
This list may seem like bureaucratic drivel, but it created a much clearer picture of what kind of agency action was expected under the order, as well as a clear floor of what actions agencies had to take—or not take—as part of complying with the order. General policy directives are easy to interpret and can be even easier to dodge.
But specific directives, when they apply to an agency’s action, are harder to deny or avoid. One might have expected that this list of nine things could easily become a compliance checklist for every federal agency administrator that is tasked with designing, reviewing, or administering federal funding. In addition, Executive Order 14,112 directed federal agencies to form specific bodies to track their progress, share best practices, and report back to the President on both the implementation of Executive Order 14,112 and additional recommendations for legislative or regulatory changes.
Like in the executive order on tribal consultation, in Executive Order 14,112, clear new process mechanisms along with a directive to report and track progress served a key implementation function. Indeed, just a year after it issued Executive Order 14,112, the Biden Administration released an addendum to the order—an implementation tracker—that notes over three hundred actions taken by federal agencies to comply with the order’s directives.
B. Recognizing Tribal Wisdom: Indigenous Knowledge Guidance and Reinvigorating Tribal Comanagement
On November 15, 2021, former Secretary of the Interior Deb Haaland and former Secretary of Agriculture Tom Vilsack issued the Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters,
and in 2022, the Department of Commerce signed on to the order.
This order directs agencies to increase opportunities for tribes to participate in costewarding federal lands and waters that are important to them, since tribes have thousands of years of ecological knowledge and sustainability practices that should be integrated into the federal management and operation of such lands.
This order also directs agencies to reach agreements with tribes to collaborate with them on the operation of federal lands and parks.
The Biden Administration’s costewardship work aimed to be a “respectful and mutually-beneficial partnership that is indicative of [its] hopes for a new era of Nation-to-Nation relationships between Tribal Nations and the Federal Government.”
The Biden Administration ran at this opportunity head-on, reaching twenty such agreements by 2022 and over 210 by 2023.
The source of executive authority for comanagement flows from a series of different laws and treaties.
That does not mean that the legal authority for these actions is thin—several scholars have pointed out how it isn’t
—but it means that the Biden Administration had to be creative and seek out this possibility when other administrations had not. In other words, the Biden Administration went out of its way to figure out how to use its administrative discretion to partner with tribes and start sharing decisionmaking authority with them.
Moreover, the Biden Administration took the insight of respectfully recognizing and, when appropriate, utilizing tribal expertise even further by creating guidance on the use of Indigenous knowledge in federal decisionmaking.
This guidance, released in 2022, “help[s] Federal agencies integrate Indigenous Knowledge in their work—from research, to environmental rulemaking, to co-management of lands and waters.”
The Chair of the White House Council on Environmental Quality described, “As the original stewards of the natural environment, Tribes and Indigenous communities have expertise critical to finding solutions to the climate crisis and protecting our nation’s ecosystems . . . .”
This is emblematic of third-phase thinking because it—in contrast to the arrogance of the past—recognizes that not only are tribes able to make decisions, but that tribes might bring insights or decisionmaking frameworks to the table that are better than what the federal government would have done without them.
IV. Continuing the Third Phase
While the change from Democratic to Republican control of Congress and the White House might usually be a death knell for the prior administration’s policy priorities, it need not be here. Although the third phase was initiated and championed by a Democratic Administration, it shares more policy foundations with the Republican platform. Put into the Republican Party’s policy framework, this third phase of policies is about cutting the size and power of federal bureaucracy, maximizing the efficiency of federal spending, and transferring more power to local government institutions.
This should be something Republican legislators and executive branch officials agree with if partisan political distractions don’t get in the way.
A. Lessons for Congress
Congress has, at this point, fully embraced phase one and two policies, not only in the Indian Self-Determination Act but also in other laws that promote or strengthen tribal sovereignty and self-determination. For example, the Tribal Law and Order Act of 2010 (TLOA) and the tribal provisions of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) both restored tribal governments’ abilities to prosecute certain cases that occur on their reservations and to sentence criminals more appropriately.
Like the Indian Self-Determination Act, however, these laws contain vestiges of paternalism that show up in the form of conditions on expanded federal power.
To exercise this expanded criminal jurisdiction or sentence convicted individuals for more than a year, VAWA 2013 and TLOA require tribal governments to provide a list of protections to defendants and to comply with a handful of judicial standards.
Some, but not all, of these requirements fit with the cultural and societal goals or structures of tribal court systems.
Congress should further limit unnecessary requirements on tribal spending, choosing instead to trust tribal governments. Congress should write fewer conditions on federal funding, include more exceptions for tribal governments to blanket funding requirements, and include clear directives that agencies implement their federal funding directives in a manner that maximizes flexibility and minimizes burdens. It should also expand the Indian Self-Determination Act and 477 to all federal funding. It should more often utilize effective funding models, like the reimbursement option built into the Violence Against Women Act Reauthorization Act of 2022.
That model allows tribes to submit receipts for a specific type of incurred costs rather than having to apply for a competitive grant program and then—for the lucky few tribes that get the grant—navigate the compliance system to make sure they are spending every dollar appropriately.
Trust and flexibility, not micromanaging: That’s what third-phase federal funding is all about.
Similarly, Congress has embraced tribal consultation, now regularly directing that tribal consultation occur in statutory directives to the executive branch about how to implement laws and policies.
Congress could take the lesson further and think of other, more structured ways for it to engage with tribal nations the way that the executive branch has. Members of Congress are eager to attend the executive Tribal Nations Summit (formerly the White House Tribal Nations Conference
)
and often invite tribal leaders to testify at congressional hearings.
But that is not the same as the structured conversations that the executive branch has with tribal nations at the Tribal Nations Summit, which, in its current form, ensures that tribal leaders have the opportunity for closed-door, “nation-to-nation” talks with members of the President’s cabinet.
Congress could internalize this second-phase insight more effectively by creating a reliable and structured way to receive input from tribal leaders. Tribes may not have the ability to send representatives to Congress, but there are other options. Maybe tribes could send tribal delegates to regular congressional convenings, provide input on legislative policy priorities, or select regional representatives with staff and the ability to speak on the floor (if not vote), who could regularly raise and discuss tribal interests with members of Congress as fellow government representatives, instead of “outside” lobbyists.
B. Lessons and Hopes for the New Trump Administration
One of President Donald Trump’s major policy priorities in the first year of his second term has been shrinking federal bureaucracy and making government more efficient
—consistent with phase-three thinking on tribal policy.
But rather than taking up the work of implementing 477 and Executive Order 14,112 and ironing out their challenges, the Trump Administration has taken significant steps backwards. There was hope that this would not be the case in the initial days of the new Administration. President Trump’s day-one executive order rescinded seventy-eight of President Biden’s executive orders and presidential memoranda, but it did not rescind Executive Order 14,112.
President Trump’s pick for Secretary of the Interior, Doug Burgum, was met with bipartisan support, including from tribal nations.
Trump’s pick for Assistant Secretary of Indian Affairs, Navajo Nation citizen Billy Kirkland, participated in an inauguration event in which several tribal leaders emphasized their hope that Republicans would continue to resist federal control over tribes and tribal dollars.
By March, however, any initial hopes had dissipated. On March 14, 2025, President Trump rescinded Executive Order 14,112.
The decision was met with criticism from Indian country’s leaders, advocacy organizations, and a bipartisan group of congressmembers.
Amid the Trump Administration’s supposed efforts to increase government efficiency, repealing the executive order seemed to directly contravene those priorities. The Coalition for Tribal Sovereignty, an organization made up of nearly every major Native or tribal policy organization,
expressed concern over the repeal of 14,112 amid the Trump Administration’s government reform efforts and called on the Administration to replace it with “something even better,”
a hope that has not come to pass. The Coalition and related groups have been exceptionally busy trying to prevent the Trump Administration from harming Indian country—petitioning the Administration to maintain essential funding, clarify the scope of government reforms, and better consult with tribal nations.
On the lands front, the Trump Administration has thus far undertaken a sharp reversal in policy. Some people hoped that conservative, small-government ideology could push the Trump Administration even further than the Biden Administration by removing lands from federal ledgers and returning them outright to tribes instead of engaging in comanagement.
Such hopes proved naive. Instead, the Trump Administration has championed land policies—such as selling lands, repealing land protections, and greenlighting mining efforts—that cut out tribal voices, ignore tribal priorities, and disregard the potential harm to tribal sacred sites.
The Biden Administration did a very Republican thing by letting go of some of its power over tribal governments and ancestral homelands now under federal control. It chose to shrink the role of the federal government and instead empower the local governments: tribal nations. The challenge for the new Trump Administration appointees will be whether to continue on that path or try to claw back some of that power. President Trump and his appointees, simply put, have a responsibility not to regress toward paternalism by reinserting itself in places where the Biden Administration took a strategic step back.
This may prove to be a challenge for the Trump Administration, which has already demonstrated a desire to use federal funding to exert more—not less—control over all who receive it.
This has, unfortunately, included vital Indian country funding.
Some of the vital dollars that flow to Indian country to support tribal self-governance have been threatened by President Trump’s attempt to prohibit or freeze federal funding that supports diversity, equity, and inclusion (or “DEI”) initiatives—which tribal self-determination surely is not. As in many other areas, self-determination policy is caught in the Trump Administration’s existential crisis between desires to champion conservative small-government policies and policies that enhance the President’s own power and control.
In the realm of Indian country policymaking, this is particularly concerning because federal control is the heart of paternalism and the antithesis of tribal self-determination. Federal control centered around the President himself is particularly concerning. Put more bluntly, unless there is a reversal of course, President Trump seems far more interested in being the Great White Father than any American President in a generation.
Whether the Administration will demonstrate that tribes, rather than President Trump, should make decisions about their futures remains uncertain.
Conclusion
There is now an opportunity to take a step forward, though this is a step the Trump Administration is less likely to take since it involves assessing, and then likely increasing, federal spending.
Tribes need federal dollars to keep rebuilding and to provide better services to their citizens.
And they need much more money than they are currently getting.
As President Nixon stated in the 1970s, the federal government both created the conditions that led to tribes’ need for additional support and manufactured tribal dependence on federal programs.
The next step, or fourth phase, therefore, should be for the federal government to start the process of ending this dependence. The road to ending that dependence will require a much more significant investment in rebuilding and strengthening tribal governance, and taking up that challenge is a wide-open opportunity for the next willing President and Congress.
The Biden Administration sowed the seeds for this potential fourth phase of tribal self-determination policies by prioritizing increased funding for tribal governments and the federal programs that support them.
It spent significant political capital expanding funding and prioritizing advanced appropriations for the Indian Health Service (IHS) for the first time in American history in fiscal year 2023, with the goal of significantly increasing IHS funding and making it a mandatory, rather than discretionary, part of annual federal spending.
Advanced funding allows IHS facilities—including tribally run facilities—to provide better care, and mandatory appropriations would allow the budget to grow over time and prevent IHS facilities from being on the chopping block in every fight over the federal budget.
Executive Order 14,112 also directed the White House Council on Native American Affairs, OMB, and the Domestic Policy Council to work across the federal government to measure the chronic funding shortfalls affecting tribes and develop recommendations for what additional funding and programming is necessary.
The order also required that federal agencies report on their progress in implementing those recommendations on an annual basis moving forward.
The next President—Democrat or Republican—ought to reinstate the bipartisan bureaucratic efficiency reform efforts of Executive Order 14,112. But the next President who is willing to embrace a plan that requires increased spending—likely a Democrat—should also embrace the blueprint for assessing federal funding needs in Executive Order 14,112 and take the next step of outlining a plan for meeting them.
The third branch of government—the judiciary—has lagged woefully behind the other two branches in recognizing the vital role of tribal nations in self-governance. During the tribal self-determination era, Congress’s and the executive’s commitment to tribal self-determination contrasted with the Supreme Court’s expansion of federal power over tribal sovereignty and erosion of tribal sovereignty.
Thus, in a new fourth era of tribal self-determination, the federal courts could finally reach third‑, second-, or even first-era thinking. In particular, there are two key pieces of wisdom from different phases of the tribal self-determination era that can be applied to the federal courts.
First, the core wisdom of the first two phases of tribal self-determination policies was that tribes are sovereigns worthy of respect and capable of good self-governance.
While the notion of tribal nations’ sovereign status has crept into the Supreme Court’s doctrine recently,
in the self-determination era, the Court has eroded tribal sovereignty and control rather than bolstering it.
Moreover, several of the decisions that have limited tribal control or allowed other sovereigns—states or the federal government—to exert themselves on reservations have relied on reasoning that dismisses the core competency of tribal government institutions, particularly the ability of tribal governments to exert any form of governance over non-Indians.
The Court seems to have misinterpreted the lesson from the self-determination era, understanding it not as “tribes can be trusted to effectively govern” but “tribes can only be trusted to govern themselves.” This misperception is rooted in some combination of ignorance, fear, distrust, and assumptions about tribes’ capacity to soundly administer the law that ought to belong in the past.
To subject tribal governments to more skepticism or scrutiny than we do the other governments in this country is nothing more than a paternalistic impulse rooted in colonially tinged distrust of tribal governments as somehow more suspect or less capable of dispensing equal justice. This practice of assuming tribal government incompetency or untrustworthiness when it comes to governing non-Indians is particularly outdated given the recent turn to tribal governments to offer their unique expertise or provide superior governance.
Second, internalizing the insight from the second and third phases of tribal self-determination policies that we ought to look to tribes for wisdom, federal courts should more robustly look to tribal courts and tribal law. If tribal governments are indeed sovereigns capable of making law and governing decisions, then tribal courts ought to be treated with deference on questions of tribal law, just as federal courts defer to state courts on matters of state law. There are clear areas where tribal expertise is relevant to understanding the dispute at issue, most notably in the determinations about the scope of tribal civil jurisdiction.
Tribal civil jurisdiction is determined by whether specific conduct is a threat to the political integrity, economic security, or health and welfare of a tribe.
It is inconceivable that federal courts have failed to recognize that this question is a mixed question of tribal law that requires looking closely at tribal laws and potentially deferring to tribal courts’ analyses.
* * *
The United States has come very far since the days when federal policy could aptly be described as the Great White Father dictating condescendingly from Washington, D.C. And it is just as certain that we have a long way to go. It took hundreds of years to erode tribal institutions and build up a comparatively ineffective federal bureaucracy to attempt to fill in the gaps. But we are at a crossroads. It cannot be underappreciated just how remarkable the recent turn in federal policy has been. It is a rare thing indeed to see a government humble itself by relinquishing power and admitting its incapacity as a decisionmaker, let alone a government like the United States government. The Great White Father has metaphorically—as the title of this Piece alludes—learned to get out of the way.
Things could continue on this path, or they could take a sharp turn backwards. This Piece could end this with the phrase, “time will tell,” but that would be inaccurate and obscure the reality that federal policymakers, tribal leaders, and the American people have a tremendous amount of agency over the future. People will decide. Hopefully they will choose wisdom and humility over laziness and arrogance.