The Politics and Policy of Righting Historical Wrongs with Amb. Keith Harper

[MUSIC PLAYING] SARAH BALDWIN: From the Watson Institute at Brown University this is "Trending Globally." I'm Sarah Baldwin. In Nineteen Ninety-Six, Keith Harper began to work on a lawsuit against the US government. It was a class action suit filed by Eloise Cobell, a member of the Blackfeet Confederacy in Montana. She claimed something that many people had long known to be true but that had never really been addressed. The US government owed many, many Native Americans a lot of money. It didn't seem like a winning case.

KEITH HARPER: Everybody had told us that we were going to lose.

SARAH BALDWIN: That's Keith Harper. He was a lead prosecutor on the case. He's also a citizen of the Cherokee Nation. The case known as Cobell versus Salazar became one of the largest class action suits in US history. Keith would go on to be appointed US ambassador to the UN Human Rights Council under President Obama in Twenty-Thirteen. He was the first Native American ever to be appointed an ambassadorship.

This year, he's serving as a senior fellow at the Watson Institute. And on this episode, you'll hear from Keith about that groundbreaking case as well as what he sees as the relationship between Native American rights, international law, and human rights more broadly. We'll get back to the lawsuit and the history behind it in a moment. We started though, with Keith's upbringing at a moment when Native American rights were dramatically changing in the US. Here's Keith.

KEITH HARPER: I grew up in San Francisco, California. My mom is non-Indian. My dad is Native. He's Cherokee.

SARAH BALDWIN: Cherokee culture and history were a big part of Keith's life.

KEITH HARPER: Growing up, it was important. I mean, we visited relatives back in Oklahoma, did a lot of things like Native basketball teams and that kind of thing. And so having that sense of community was very important. And I was very proud of it.

SARAH BALDWIN: Keith's father had wound up in San Francisco because his father's uncle had moved there following the Indian Relocation Act of Nineteen Fifty-Six. This law gave financial incentives to Native Americans to move from reservations into urban areas like San Francisco. That law played a large role not just in Keith's family, but in the trajectory of Native American politics in the US. It was a policy that had devastating consequences for individuals and tribal communities. But it also had some unintended consequences.

KEITH HARPER: Well, the interesting thing is you can never predict how a policy, even a bad policy, is going to implicate tribal communities. For relocation, there's no question that the Red Power Movement started in these urban centers.

SARAH BALDWIN: The Red Power movement fought for tribal self-determination in the 60s and 70s.

KEITH HARPER: Because if everybody was still back on these rural areas, they wouldn't have had the same influences. But take it Oakland, California, you have the Black Panthers, you had the farm working strikes, you had all of these other communities searching for ways to realize their rights. And Native people noticed that. And so it's no surprise that the places that they happened in were where? San Francisco, Denver and all of these places-- Seattle area where there were Native people, Native urban people.

SARAH BALDWIN: Even though this movement couldn't really compete with his favorite pastimes as a kid--

KEITH HARPER: Skateboard, basketball, and surfing. [LAUGHS]

SARAH BALDWIN: It was in the air.

KEITH HARPER: We were in a moment of change. Obviously, one of the things that occurred is the take over of Alcatraz.

SARAH BALDWIN: Also known as the Occupation of Alcatraz. This was when Native American activists took over the defunct Alcatraz prison in San Francisco Bay for 19 months between Nineteen Sixty-Nine and Nineteen Seventy-One. The occupation was ostensibly based on a decades old treaty, which said that unused federal land would be returned to tribes.

REPORTER: American Indians unexpectedly stormed ashore on Alcatraz.

ACTIVIST: We feel that the so-called Alcatraz Island is more than suitable for an Indian reservation, as determined by the White man's own standards.

REPORTER: This island here represents to the Indians a sounding board where they can get the attention of the public and get the attention of the press, get the attention of government officials.

KEITH HARPER: It put Indian issues on the policy map.

SARAH BALDWIN: Throughout the 70s, there was organizing going on for Native American rights and tribal autonomy, which had never occurred before. And as Keith got older, he realized--

KEITH HARPER: I wanted to be part of the movement to realize the end goals and objectives that the tribes were creating. The idea that you can translate political activism into better policy, I think that I was thinking about those things when I decided I wanted to go to law school.

SARAH BALDWIN: Keith went to law school on the East Coast, and in Nineteen Ninty-Five, joined the Native American Rights Fund. And it was there that he would start working on Cobell versus Salazar.

KEITH HARPER: The Cobell suit, at its heart, was about a broken system.

p around the Allotment Act of: 1887

KEITH HARPER: If you're going to start, we should start just a hair earlier in what's called the Treaty Period or the Removal Period.

his period went from the late: 1700

KEITH HARPER: These are when tribes from throughout the Eastern part of the United States were basically forced, usually, to sign treaties that gave up millions of acres of land for pennies on the dollar and were then moved West. And that didn't mean everybody was moved West because people went to the hills like Cherokee people did. They ran into the Smoky Mountains, and nobody was going to chase after them there. But the vast majority of the Cherokee Nation was removed to what is now state of Oklahoma. So you had that first loss of land.

SARAH BALDWIN: After the Treaty period came an equally benign sounding allotment period.

ITH HARPER: Starting in about: 1887

SARAH BALDWIN: The Dawes Act allowed the US government to break up tribal lands into parcels that would then be privately owned by individual Native Americans. As Keith very charitably put it, the framers of the Dawes Act--

KEITH HARPER: They had all good intentions. And they thought that part of the problem was that tribes and tribal people thought to communally, and that they had to think individualistically. So this system of allotment was created. And instead of the tribe owning the lands as a tribe, as a communal entity and a government, each individual was given an allotment-- 160 acres, 80 acres, whatever was necessary in the eyes of the United States to allow them to be a successful farmer.

SARAH BALDWIN: They were also able then to lease out their lands for things like cattle grazing or mining.

KEITH HARPER: Oil and gas or titanium, I mean, you go across the country, a lot of these Indian lands are productive for various purposes. I think the largest uranium mine, if I'm not mistaken, is in Navajo Nation. And so obviously, that was critical to a lot of development in the United States.

SARAH BALDWIN: But like almost all policies affecting Native Americans in the US, any good intentions were mostly overwhelmed by other forces.

KEITH HARPER: Allotment very quickly, it became apparent within a decade or so that this is not what they thought it was going to be. Tribes opposed it. They were allotted anyway. The other piece of allotment is that any lands that were considered unnecessary to be individually allotted, much of that land was sold as quote, unquote surplus land.

SARAH BALDWIN: Meaning some of the land was allotted to white people.

KEITH HARPER: And that's how you have a mass migration, for example, to Oklahoma. Because all of this free Indian land was being given away, essentially.

SARAH BALDWIN: There was another major catch in this system.

KEITH HARPER: Indians at the time were presumed incompetent.

SARAH BALDWIN: Legally incompetent. As a result, any money that Native Americans earned from their allotted lands was held in a trust. And the trusts were conveniently--

KEITH HARPER: Managed by the United States. If you were a Native person and you wanted to, say lease out your land for somebody to farm on or enter an oil and gas lease, you needed the approval of the Secretary of Interior.

SARAH BALDWIN: And if you got that approval to lease to someone--

KEITH HARPER: In those circumstances, instead of paying the individual Native person, you pay the Department of Interior. And then those funds went into the individual Indian's individual Indian money accounts, IIM account. And in the early years, individual Indians could not take money out of their account without the approval of the local agency head, the superintendent.

And famous story was of Jim Thorpe, famously went to the Olympics in Nineteen Twelve I believe it was, won the decathlon. When he was going there, he made a request for funds from the superintendent. And the superintendent sends a letter back and says, what's the purpose. He said, well, I've been selected for the US Olympic team, and I'm going to go to the Olympics in Europe. And I just need some money to live while I'm there. And the superintendent writes him back and says, well, I'm sorry. I'm not going to give you money to gallivant across Europe when you should be learning how to farm right here in the United States.

SARAH BALDWIN: And here's the thing, and here's where it gets back to the class action suit, Cobell versus Salazar. It wasn't just a hugely paternalistic system.

KEITH HARPER: It was rampant corruption, and there was no accountability. There was a Nineteen Fifteen report that's something like, fraud, corruption and institutional incompetence almost beyond the possibility of comprehension. I think that's a direct quote.

SARAH BALDWIN: In both conception and execution the US government effort at allotment was a disaster and a tragedy for countless Native American families.

KEITH HARPER: I think it was Nineteen Twenty-Six, a report, very influential report called the Miriam Report did a retrospective kind of analysis of allotment. And basically, it said that this was horrifying. It destroyed communities.

SARAH BALDWIN: At least, it seems, the US was honest in its reports. Finally--

KEITH HARPER: Allotment ended in Nineteen Thirty-Four, sometimes called the Indian New Deal with the Indian Reorganization Act, recognizing that it was a problem, holding lands that remained in trust in trust in perpetuity, returning any quote, unquote surplus lands to tribal status. That's why tribes that in which the government was just slow to sell their surplus land, they were the fortunate ones because they were able to maintain those lands in trust status. And those are Indian country today.

SARAH BALDWIN: While the allotments ended in Nineteen Thirty-Four, those mismanaged trusts continued to exist. Not much was done to fix them in the following decades either as the US government backslid in its treatment of Native Americans after the quote, unquote, Indian New Deal. What was known as the Indian termination policy came to dominate in the time around World War II. The federal government became focused on assimilation of Native Americans and on a derecognition of tribal autonomy.

KEITH HARPER: If you look at Indian policy in the last 230, 240 years, there's been a vacillation between two positions. One is what you would call assimilationist. And one you would call respect for self-governance. And to the extent that it is tilted towards the self-governance side, tribes have done better. And to the extent that it's been these assimilationist policies, tribes have done worse.

SARAH BALDWIN: The vacillations continued. In the nineteen-seventies, those fighting for Native American rights and tribal autonomy began to gain ground with the help of none other than--

KEITH HARPER: In a lot of Indian country, President Nixon is a hero, at least to the extent of his Native policies. Because he ushered in what is called the era of self-determination, and we're still in that era now, fortunately. The whole idea is that the United States shouldn't be there to impose policies on tribal communities, that the United States should be there as a partner in order to build more resilient tribal communities with greater institutional competencies, stronger court systems, stronger police force, ability to have governments that are providing the services for their tribes.

So if you look, for example, the Cherokee Nation, part of the nineteen-seventies the president appointed the chief of the Cherokee Nation. And so what the self-determination policy did is it basically said, we are going to take a bet that if we empower tribes, they are going to, in the aggregate, make better decisions for their people than us trying to impose these from afar. Once that mindset switched in the nineteen-seventies, that just laid the groundwork for an entire new era.

SARAH BALDWIN: This era coincided with Keith's upbringing in San Francisco and the beginning of his career as a lawyer. It was also when a woman named Eloise Cobell noticed that Indian trusts had never been audited or repaid to the families that deserved them.

KEITH HARPER: Eloise Cobell, who was the treasurer of the Blackfeet Tribe, started asking a lot of questions in the nineteen-eighties. And this led to a reform effort, led principally by a Congressman named Mike Synar. And ultimately, there was a Reform Act, the Indian Trust Reform Act of Nineteen Ninety-Four.

SARAH BALDWIN: This act was designed to undo the corruption and negligence of the allotment trusts and create an accurate accounting for every Native American and tribe.

KEITH HARPER: Eloise though, was not seeing the progress and the changes that she wanted to see. And so she came to the Native American Rights Fund where I was working at the time and created a team, some at the Native American Rights Fund, some outside. And we brought a suit in Nineteen Ninety-Six.

SARAH BALDWIN: The suit was asking for something simple, yet at the same time, almost impossible to provide.

KEITH HARPER: An accounting. Your trustee is supposed to tell you with specificity exactly what they've done to your resources. Every debit that went out-- where did it go out, where's the canceled check? Every credit-- where did it come from, what was the underlying lease? All of that is information that should be at the disposal of the beneficiary at any time.

SARAH BALDWIN: It became one of the largest class action lawsuits in US history.

KEITH HARPER: About 500,000 individual Indians across the country, and then, of course tribes are also beneficiaries, and so all of those members of the tribes are, in a sense, beneficiaries.

SARAH BALDWIN: And it went on for over a decade. Over the years though, it became clear a full repayment couldn't be the goal.

KEITH HARPER: Part of the challenge is, OK, if the United States doesn't have any of the documents because they destroyed them, which a trustee's never supposed to do until they do an accounting, then what do you do? And so it became apparent to us, and it became readily apparent to Eloise as well, that we did have to resolve the case. And so we sat down with folks at the Department of Justice, senior people. And basically were able to hammer out a settlement of $3.4 billion.

SARAH BALDWIN: They settled in Two Thousand and Nine. It was a historic moment for Native American rights and tribal sovereignty. And it was also, in some ways, a recognition by the US government of the wrongs they'd committed. There was a lot to celebrate, and much news was made of the settlement. But Keith is quick to make two things clear. First--

KEITH HARPER: All the credit really goes to Eloise. I mean, because once you decided to do it, she was going to fight the fight till the end. And that kind of backbone was, I think, essential. You need somebody who's going to drive that. And we were just honored to be the people battling for her.

SARAH BALDWIN: The second point has to do with the case itself.

KEITH HARPER: I think this was a measure of justice. I don't think this was full justice. If you look at the full expanse of the malfeasance and misfeasance over the period of time we're talking about, which is 100 years, then it did not repay the beneficiaries for all of that loss. The courts are not actually very good at resolving historical problems.

SARAH BALDWIN: In other words, full repayment will never be possible.

KEITH HARPER: Hundreds of dollars lost in the nineteen-twenties, what does that do to a family, right? And what does it do to their ability to educate their children. And so then the next generation-- people build wealth over generations, oftentimes. But if you're denied that wealth early on, then it sort of makes it less able to do that. So I always like to say, look, this was important. It was an important milestone. It was-- I agree it was an important case. But we should recognize that it was mere measure of justice and not full justice.

SARAH BALDWIN: In Twenty-Thirteen, President Obama appointed Keith United States ambassador to the United Nations Human Rights Council. It's a position that deals with issues of both universal human rights and specific rights to Indigenous groups. This became a more explicit part of the job in Two Thousand and Seven, just a few years before Keith was appointed. That was the year the Declaration on the Rights of Indigenous Peoples was ratified. It stated, among other things, that quote, "Indigenous peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development." I asked Keith about how these two goals of universal human rights and of Indigenous peoples rights relate to one another.

KEITH HARPER: They are complementary, but they are not without tension either. The Universal Declaration is intended to be about rights of individuals. And more than that, actually, it is really-- at the time, the conception of human rights was restraints on governments from treating their people a certain way. You have a restraint on denying freedom of expression. You have a restraint on denying somebody's freedom of religion and belief.

So these were restraints just like the Bill of Rights in the US Constitution. And over time, there's been a desire to have human rights evolve into also having what we call positive rights, right? Like a right to education, a right to health care. In that milieu, we have then the Declaration of the Rights of Indigenous Peoples, which is not an individual right at all. It's group rights. They're about tribal communities and their self-governance.

SARAH BALDWIN: And that's because, as Keith puts it--

KEITH HARPER: The evolution of rights has always been about addressing past problems. And if you look at the history of Indigenous communities, the right that's been denied is their ability to decide for themselves. And that's why in so many places-- I think it's seven or eight places in the Declaration-- it uses the really important phrase, "free, prior, and informed consent." That you cannot take action, you should not take action, unless the particular community has given their free, prior, and informed consent. And if that were fully implemented, that notion, then I think we'd see a watershed change throughout the globe.

SARAH BALDWIN: Well, where do you think we stand globally on that?

KEITH HARPER: Not in a very good place. It's somewhat-- one of the interesting things when you start looking at things globally, is you recognize the things that we are getting right in the United States. I have to talk about the Violence Against Women Act reauthorization about eight or nine years ago, which for the first time, gives tribal courts jurisdiction even over non-Indians who commit violent crimes, certain violent crimes against Native women and girls. That was a very important law, and I can't see that happening anywhere else in the world. Like, actually giving tribal communities, Indigenous courts jurisdiction over non-indigenous individuals.

And so you start to realize, despite all the challenges, despite all the history here, in a lot of places, there's an even tougher situation. But the hope is with the Declaration in place, if the United States were to take a more leading role in ensuring that Indigenous rights are observed, I think that would make an incredible difference. We have an ability to do that. We've shown it in many other circumstances. So it's not preordained to be successful, and it's not preordained to be unsuccessful.

SARAH BALDWIN: The global movement for Indigenous rights will require US leadership. That of course, means the US needs to continue allowing Native American rights to flourish at home, which is by no means guaranteed.

KEITH HARPER: I can't predict the future. But what I do know is that if we stay on this path of self-determination, then I think tribal communities will continue to make in aggregate better decisions for their communities than if others impose decisions on them. My hope is that yes, we will continue on this trajectory. The tribal communities will get stronger politically, socially, economically, and I don't know exactly where that goes. But I'm definitely optimistic.

SARAH BALDWIN: You could forgive someone for being wary of hoping we stay on a certain path when it comes to Native American rights given the swings between progress and backlash that have defined the United States' relationship to Native Americans. But as Eloise Cobell, Keith Harper, and many others have shown, there's plenty of reason for hope.

KEITH HARPER: The most important thing about the Cobell case in my estimation, wasn't the number, wasn't the $3.4 billion. But it was one word, accountability. For the first time, we had accountability for this thing that was happening generation after generation. If a group of people are going to be abused, then we want accountability. Because that brings a pause the next time when somebody tries to do something of that nature.

SARAH BALDWIN: This episode was produced by Dan Richards and Kate Dario. Our theme music is by Henry Bloomfield. Additional music by the Blue Dot Sessions. I'm Sarah Baldwin. You can learn more about the Watson Institute's other podcasts on our website. We'll put a link to it in the show notes. And if you haven't already, please leave us a rating and review on Apple Podcasts. It really helps others find us. We'll be back in two weeks with another episode of "Trending Globally." Thanks for listening.

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