Reports of privatizing oil-rich Native lands are overblown, but big changes are still in store under Trump

When Oklahoma legislator Markwayne Mullin recently told Reuters, "We should take tribal land away from public treatment," the backlash was instant.

He and other advisers to President-elect Donald Trump were accused of supporting a controversial measure to privatize Indian land in order to allow easier access to oil reserves. Fresh off a victory in the Dakota Access Pipeline fight, activists, politicians and others took to social media to express outrage and disgust at an idea that would fundamentally alter the relationship the federal government and Native Americans have had for centuries.

“And here we go … first Mark Mullin, tribes should make their own decisions on what happens to their land, not you, not the federal government and certainly not you taking their land and handing it over to some private company who you have sold yourself too,” wrote one commenter on Facebook.

And another said, “It's important to remember that 500 years of struggle did not end yesterday. Party today, we won a big one. Be ready to fight tomorrow.”

Mullin is Cherokee and a Republican member of the US House of Representatives from Oklahoma. He and 15 other politicians also belong to the newly formed Native American Coalition — started before Trump was elected. The mostly conservative, Republican coalition hopes to advise the incoming administration on Indian country issues, like economic development, energy and the environment.

Mullin said the recent article misquoted him. He doesn’t want to privatize Indian land, he says. He just wants to make it easier for tribes to do business without the approval of the federal government — to “cut through the red tape of bureaucracy.”

“It’s tribal land given to sovereign nations, but it’s treated like public land. They can’t develop their resources. We want them to be treated like private landowners,” he added.

Mullin believes Native people would be better off supporting the agenda of Republicans like himself.

Not so fast

Agencies like the Bureau of Indian Affairs, the Bureau of Land Management and the Department of the Interior are charged with helping tribes and preventing them from being exploited — by the states, corporations and privatize citizens — though they haven't always done a stellar job. In other words, that red tape may be a good thing, according to Taiawagi Helton, a professor of Indian law at the University of Oklahoma.

“There’s a terrible history of non-Indians near reservations desperately wanting whatever resources tribes have,” explained Helton.

Here are just two examples: Gold in the Black Hills in the 1840s on land once controlled by the Dakota Sioux and the discovery of gold around 1800 on land in North Carolina and Georgia that was controlled by the Cherokee. 

Ever since the Supreme Court decided Johnson v. McIntosh in 1823, tribes have been considered both sovereign, independent nations with their own governments and infrastructure, and subject to the approval of the federal government.

“The idea of freeing tribes from federal government seems misplaced. In fact, setting them free from federal oversight sounds a lot like right to work — you’re free to work, but without the protection of labor unions,” said Helton.

The goal of that 1823 decision was to protect the tribes from being cheated out of their resources — including making sure the tribes get the benefit of oil and gas beneath their land. 

The Osage nation has a total of 240 oil wells on its reservation. Osage officials would like to sell that oil, but they need approval from the feds. And that’s a problem, according to Chief Geoffrey Standing Bear. He thinks the relationship tribes have with government is “paternalistic” and hinders their economic opportunities — even though it’s meant to protect them.

“The US has chosen to exercise their obligations through a massive amount of bureaucracy,” he said. 

Standing Bear said getting the approval from the government on projects that could lead to greater economic development and more jobs are stalled because they've had to seek approval from BIA, BLM and the Interior Department. 

"It's nothing short of oppressive," he said of federal oversight. Standing Bear, who has supported both Democrat and Republican candidates, agrees with Mullin: Tribes should remain sovereign and be able to make decisions for themselves. That doesn't mean privatization, but it does mean cutting some red tape.