Trump injects 'race' into debate with questions about Indian funding

Monday, May 8, 2017  

President Donald Trump may not have been able to convince Congress to support his funding priorities but he's striking back in his own way.

In signing a $1 trillion spending bill into law on Friday, Trump managed to undermine the federal government's trust responsibility by questioning the legality of Indian programs. He gave an example -- Native American Housing Block Grants, funded at $654 million in H.R.244, the Consolidated Appropriations Act -- and incorrectly described it as a program based on "race."

"My administration shall treat provisions that allocate benefits on the basis of race, ethnicity, and gender," Trump wrote in the signing statement, "in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment."

The assertion, coming in the last paragraph of the statement, quickly set off alarms. The nation's largest tribal housing organization said it was "disappointed" by Trump's false claim about Indian programs.

"These programs are not based on race or ethnicity but rather on the centuries-long political relationship between tribes and the United States," the National Indian Housing Council said in a statement on Monday. "We look forward to working with the administration and Congress to ensure that tribal programs, and particularly those that help provide safe, affordable housing in Indian Country, are adequately funded and managed effectively."

The U.S. Supreme Court -- by relying on the U.S. Constitution itself -- has in fact dispelled the "race" notion a number of times. The Morton v. Mancari decision from 1974 is often cited as proof that the relationship between the federal government and Indian Country is a political one, just like NAIHC described.

"On numerous occasions, this Court specifically has upheld legislation that singles out Indians for particular and special treatment," the late justice Harry Blackmun -- who was nominated by a Republican president -- wrote in the seminal case.

"As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed," Blackmun concluded.

Despite the settled nature of the trust responsibility, anti-Indian organizations, conservative groups and some Republican members of Congress have long tried to undermine it. Attacks on the federal recognition process, government contracting preferences and the Indian Child Welfare Act are common in the political sphere because opponents find trouble making those same arguments stick in the courts.

Even the new president himself employed the tactic during his years as a casino mogul. He once claimed the Indian Gaming Regulatory Act was unconstitutional but didn't get very far with a lawsuit in federal court.

Still, merely raising doubts about the legality of tribal programs can have significant effects. During the presidency of George W. Bush, the Indian Health Care Improvement Act was held up for nearly a decade because questions about "race" clouded the debate about the government's treaty and trust obligations to the first Americans.

The Bush-led White House went so far as to remove references to the trust responsibility in testimony to Congress on Indian health care. And, somehow the Department of Justice released an official document that derailed the IHCIA yet "no one" knew who wrote it or gave it to conservatives in Congress.

"Indian country’s biggest fear with a Trump Administration has been that the Federal Government would usher in yet another era of tribal termination," attorney Bryan Newland, a citizen of the Bay Mills Indian Community who worked at the Bureau of Indian Affairs during the Obama era, wrote on the influential Turtle Talk blog on Monday. "I wrote a post in 2016 explaining that then-candidate Trump’s views on Indian tribes appeared to be rooted in a philosophy that Indian tribes were nothing more than race-based associations, rather than sovereign legal entities."

"As President, Donald Trump, his administration, and his congressional allies have done little to put these fears to rest," Newland continued.

Indian Country wasn't the only one singled out by Trump -- he also questioned federal funding for the nation's historical black colleges and universities. He issued a second statement through the White House on Sunday that addressed the controversy.

"The statement that accompanied my signing of the Consolidated Appropriations Act, 2017, sets forth my intention to spend the funds it appropriates, including the funds for Historically Black Colleges and Universities (HBCUs), consistently with my responsibilities under the Constitution," Trump said in the statement. "It does not affect my unwavering support for HBCUs and their critical educational missions."

Trump didn't say anything about Indian Country though. In addition to bringing up tribal housing grants, he questioned another section of the appropriations bill that provides funds for Alaska Native and Native Hawaiian education programs.

Through the spending bill, which funds the government for fiscal year 2017, Congress increased funding for the Bureau of Indian Affairs, the Indian Health Service and even for Indian housing programs at the Department of Housing and Urban Development. H.R.244 keeps the government running through the end of September.

Trump has said he will seek cuts to these and other programs with his fiscal year 2018 budget but he has yet to deliver details to Congress. The new fiscal year starts October 1.

Funding bill directs Justice to 'support' commission on Native youth (May 3, 2017)
Funding bill holds the line for Indian Country ahead of Trump cuts (May 2, 2017)
Mark Trahant: Bill boosts spending for Indian Country -- for now (May 1, 2017)