Keeping treaties

No one should be surprised that Sen. Slade Gorton of Washington is getting pilloried for a couple of riders he added to the Interior Department spending bill regarding the federal government’s relationship with Indian tribes. Public abuse is the inevitable result when bad ideas combine with questionable tactics.

Just before the August recess, Sen. Gorton, Republican head of the Interior appropriations committee, used his chairman’s perogative to add, without substantive hearings or debate, provisions that put a price tag on tribal sovereignty and on the treaties that bind Native Americans and the American government.

First, Gorton proposes that the nation’s 558 recognized tribes, with 1.2 million members, waive their sovereign immunity from civil lawsuits or lose up to $767 million annually, roughly half of the federal budget for daily tribal operations. Second, he wants to means-test the federal payments by factoring in tribal income from gambling operations.

Under the guise of working to benefit those he seeks to harm, Gorton says immunity actually hurts the tribes by scaring off outside investment. If that were the case, one would expect to see other governments — federal, state and local — shedding their immunity, their protection from ruinous lawsuits. Tying the right to self-governance to federal assistance is nothing less than blackmail.

That connection, and the means-testing provision, are based upon an erroneous view of what the federal payments are. They are not welfare. They are the result of hundreds of treaties in which the tribes ceded ownership of the continent in return for support and protection. The federal government’s willingness to renege on deals with the tribes is one of the darkest chapters in this nation’s history. Let’s not repeat it.

What’s so unfortunate is that Gorton’s riders distract Congress’s attention from real issues. Federal assistance to tribes does vary widely — from more than $2,400 per capita for one West Coast tribe to less than one-tenth that for some in the Dakotas. HUD’s Indian Housing program is a cesspool of waste, fraud and abuse. The Bureau of Indian Affairs is regularly cited by the General Accounting Office as one of the least effective, worst-run government agencies. In short, billions upon billions have been spent producing crushing poverty on desolate reservations.

A big problem, though, rarely is fixed with one big solution — it usually takes a lot of attention to detail and a lot of small steps. For instance, the legal difficulties facing non-Indians who might invest in tribal businesses on tribal lands have been talked about for years. So has the solution — government-backed guarantees to help the investors at least partially recoup if the business fails, just like the guarantees U.S. investors in Third World countries get.

The tribes are mounting a strong effort against Gorton’s after-hours attempt to rewrite history, to scrap treaties and to further divide Indians and non-Indians. Many believe the senator’s assault on their sovereignty is the result of a grudge. He was Washington’s attorney general 20 years ago when the state lost a landmark Supreme Court case on Indian fishing rights. Two years ago, he unsuccessfully tried to cut $200 million for the tribal appropriation. Credit him with persistence.

Even if animus is a factor, it would be naive to suggest that there’s no place in the process of setting public policy for axe-grinding. One just mustn’t be so blatant about it. Congress should reject his meat-cleaver approach and assemble the tools to truly fix what’s broken. And it should work by the light of day.