Are You Republican-Ready? What a GOP Congress Means for Indian Country

Philip Baker-Shenk and Paul Moorehead

In our lifetimes, Indian Country has had a somewhat rocky romance with the Republican Party.

Now, in the wake of the 2014 mid-term elections, Indian Country will once again be living with a Republican-controlled Senate and House. It’s been 15 years since a Democratic president faced that reality. Last month’s Republican wave put the GOP back in charge of the U.S. Senate with a solid 54-seat majority over 44 Democrats and two independents. That wave also gave the GOP a 247 to 188-seat majority in the U.S. House, its largest margin since 1928.

The bona fides that Republicans bring to any discussion of federal Indian policy are beyond reproach. President Nixon fathered Indian self-determination policy and protected Taos Pueblo’s Blue Lake. President Reagan signed into law the Indian Gaming Regulatory Act. One-time chairman of the Committee on Indian Affairs Sen. John McCain co-authored and shepherded Tribal self-governance policy. More recently, Sen. Ben Nighthorse Campbell and Rep. Tom Cole have heroically championed many vital causes, from energy development and trust reform to protecting Indian women from violence.

Yet Native American voters still tilt heavily Democratic at the ballot box. Many Tribal leaders appear to be much more comfortable with Democratic politicians than with Republican politicians. Democratic operatives more easily dismiss the anti-tribal views of some Democrats as harmless aberrations than do Republicans with their Indian-fighter outliers.

As two guys who have worked for Republican friends and allies of Indian Country, we’ve asked ourselves – why is it that some Republican politicians still seem to get awkward when they step into Indian Country? The Republican Party has much to be proud of when it comes to federal Indian policy and practice. Perhaps Indian Country’s coming courtship with the Republican majority on Capitol Hill will smooth out more of these wrinkles.

Looking ahead to 2015, we see a fairly short window of time, perhaps as little as half a year, when the Republican majority will have the focus and energy to get things done before the presidential campaign craziness acts like a kill switch on constructive change. The first part of 2015 offers the best chance for measures that enjoy bipartisan support. Many Indian issues – tax reform, self-governance, energy development, trust reform, housing – are perfectly poised to fit a bipartisan definition. Moreover, Indian Country knows full well that its interests are best furthered by bipartisan alliances – what goes around comes around and sooner or later Democrats will take a turn again at leadership.

If the Republican majority is to make an enduring contribution to Indian Country next year, we believe it must exuberantly marry its less government is better government mantra with tribal self-determination and self-governance in the fields of land management, economic development and tax reform. Just timidly tinkering around the edges of the failed status quo federal Indian policy will not be good enough. Indian Country, dating back to the American Indian Policy Review Commission of the late 1970s, has long asked for bigger, bolder solutions. Republicans, now with a solid majority, should not be afraid to deliver.

With the GOP’s property-rights focus, it should be familiar ground for the GOP to advance a territorial tribal sovereignty and jurisdiction approach that respects each tribal government’s right to govern everything and everyone within its borders. Tribal laws -- from taxation to labor to the environment to endangered species to violence against women – should be given preemptive effect by federal Indian law. After all, Republicans believe the best government is local government, and when it comes to Indian Country, you can’t get more local than the tribe. Moreover, tribal preemption is a central tenet of the Indian Treaties, which solemn agreements, we are reminded by Republican Originalists, are cited in the U.S. Constitution as the highest law of the land.

An example of what could be accomplished next year is enactment of bills like last year’s American Indian Empowerment Act, H.R. 3532 (Young, R-AK), which would put tribes back in sovereign charge of their own land use and management decisions while maintaining core protections against alienation and taxation. Also ripe for fast action is the Indian Tribal Energy Development and Self-Determination Act, S. 2132 (Barrasso, R-WY), which would continue the positive trend toward tribal authority and decision-making in the energy sector. Both are authored by respected committee chairmen who can move those bills.
At the same time, new alliances are being developed that could help the GOP to support an economic renaissance in Indian Country. In 2011, the U.S. Chamber of Commerce launched the “Native American Enterprise Initiative” and has been very active supporting tribal priorities in Congress including the General Welfare Exclusion Act, the Tribal Labor Sovereignty Act, various energy development and trust reform proposals, and contract support costs. Tax reform in the next Congress will offer new opportunities to explore big solutions that jump-start Indian Country economies by creating tax-free tribal zones that draw private- sector jobs and commerce into Indian communities. Tribes should make decisions about what happens within their territorial boundaries, not outsiders (whether they be federal/state bureaucrats, environmental activists or industry moguls).

To truly restore a healthy government to government relationship with a mature and constructive rapport between the United States and each Indian Nation, federal law must protect and respect the power of each Indian tribe to govern itself and all conduct on lands within its borders. Without that, tribal self-sufficiency will remain elusive and subject to the location lottery.

Protecting and respecting tribal territorial sovereignty fits perfectly with Republican philosophy.

Is Indian Country Republican ready?

Is the Republican leadership Indian Country ready?

The authors worked for two Republicans who chaired the Senate Committee on Indian Affairs. Phil was general counsel under Sen. John McCain and Paul was chief counsel under Sen.Ben Nighthorse Campbell. They now represent Indian tribes at, respectively, Holland & Knight LLP and Powers Pyles Sutter & Verville PC.

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