Excerpted From: Samuel Kramer, Are We Atoning for Our past or Creating More Problems: How Covid-19 Legislative Relief Laws Are Shaping the Identities of Indigenous Populations in North America, 54 University of Miami Inter-American Law Review 169 (Spring, 2023) (351 Footnotes) (Full Document)


SamuelKramerAmid struggle and catastrophe, a society can reflect. The COVID-19 pandemic is no exception. Across the world, people placed under lockdown orders and locked into media driven echo chambers have reflected on the state of the world and our collective past. This reflection recognized historic oppression and its modern continuity. Statues, remnants of outdated and racist perspectives, continued to stand in our world. In some cases, reflection fueled action and action sought change. For example, in England, a statue of a slave trader was thrown into Bristol Harbor. In Belgium, a statue of a Belgian King was removed. In the United States 168 confederate statues were removed in 2020 alone. Physical statues are not the only antiquities remaining in the modern world.

In law, historic legislation, regulation, and litigation are like statues erected long ago that still stand to remind us of our past. In essence, statutes--and other areas of law--are statues. There is no such thing as a law created in a vacuum. Every law has a history. Modern law is built on precedent. Old legislation provides foundational principles that modern legislation builds upon. In other words, precedent serves as the platform for modern legislation. Furthermore, laws do not necessarily vanish but are amended or repealed. Even repealed laws, were once “good law” that affected the material plane.

Systemic issues can commemorate racist perspectives and highlight inequality as these issues become ingrained in the legal structure. To some, the answer to righting systemic issues is to demolish the current structure and build anew. The allure is sensible as a broken system of favoritism and injustice rightfully causes outrage. However cathartic, a full-scale demolition is risky, time consuming, and incredibly unlikely as it pits current paradigm supporters against opponents. Still in a time of political gridlock and ideological gaps, political compromise of such scale is farfetched. The current legal landscape, despite its many flaws, separates our world from chaos and the imperfect structure provides shelter from the rain.

Systemic cracks rob people of justice and equality. The inequality allows some to drown while others remain dry. Seeking to change a systemic issue is often an uphill battle--riddled with peril--and nothing short of a hero's tale. There is no clear solution to instituting equality and this paper does not, nor in my hubris do I, attempt to state such. Rather, this paper takes the first and most important step towards solving a problem.

Systemic flaws are cracks in a country's way of governing. These cracks occur when the legal system continues to evolve, compounding the distance between those who benefit and those who are left behind. The law glosses over legal gaps and failures, attempting to transform historic mistakes into modern problems. One such flaw, crack, or failure in United States' law is the Alaska Native Claims Settlement Act (“ANCSA”). ANCSA started as a congressional experiment in 1971, which created regional and village corporations for indigenous populations in Alaska instead of reservations. The shortcomings of ANCSA are evident in the subsequent litigation which revolve around the legal rights of Alaskan native populations. In addition, the Supreme Court has had to clarify the unique circumstances of Alaska and its indigenous populations many times. These issues are modern consequences of settled law. On March 19, 2020, the United States passed the Coronavirus Aid, Relief, and Economic Security Act (“The CARES Act”), which allocated indigenous populations in the United States funding to support their autonomy. However, Alaskan tribes were denied their funding due to technical language. This prompted Yellen v. Confederated Tribes of the Chehalis Reservation. In Yellen, the Supreme Court relies on precedent and the plain meaning of statutory provisions to hold that Alaskan Native Corporations (“ANCs”) are Native Indigenous tribes and thus entitled to COVID-19 relief funding.

The controversy in Yellen, highlights a continual systemic issueeven when the government acts in earnest. The modern government's relationship with indigenous populations seeks to provide much needed support to make up for atrocities of the past. However, before a group can benefit from legislation, the government first must identify who among the group should benefit. Because Congress needs named beneficiaries, racial classifications are thoroughly defined and cast a large legal shadow. Racial identities and their legal significance are “a social construct without biological meaning” built slowly over generations. The concept of race became solidified in society as legal institutions began utilizing racial identities and intertwined them with legislation and litigation. The current racial classifications are the result of the Office of Management and Budget's (“OMB”) “response to the anti-discriminatory and equal opportunity laws of the 1960s.” The OMB, in 1977, provided the definition for the terms “American Indian” and “Alaskan Native:”

American Indian or Alaskan Native. A person having origins in any of the original peoples of North America, and who maintains cultural identification through tribal affiliation of community recognition.

As a result, in the case of persons indigenous to North America, racial identity became tangled with the concept of legal identity, which is “understood to be the combination of factors that enable a person to access rights, benefits, and responsibilities.” Although the identity of “American Indian” and “Alaskan Native” was thereafter defined, Congress has since struggled with untying the two groups--fueling identity issues for Alaskan native populations. Time and time again, the Supreme Court has had to clarify the rights of Alaskan indigenous populations as affected by Federal laws.

Alaskan native populations have long had to dispute their legal rights in federal court. we cannot change the way the world has worked, we can work to change the world. Meaningful change requires that the manner in which actions are taken and the resulting effects of said actions to be treated attentively, no matter how subtle. This note will analyze the indigenous identity issue inherent in the United States Supreme Court's decision in Confederated Tribes of the Chehalis Reservation. Part II of this article will outline the historic relationship between the United States and Canada with their respective indigenous populations, specifically the legislation identifying what constitutes a native population. Part III will complement the analysis of prior legislation with an examination of American and Canadian response to the COVID-19 Pandemic and how the roll out of that legislation relied on the historic precedent to identify the recipients of COVID-19 Relief Funding. Part IV will compare the different structures of indigenous identification in the United States-showcasing important lessons for future policy.

[. . .]

Legal precedent does not vanish; it lingers. As such, historic choices made by governing bodies have lasting effects on the development of future law. In the United States, legalprecedent regarding indigenous populations is tangled and confusing. The decision to create two different systems of autonomous communities for indigenous populations--although perhaps of the best intentions--has caused ongoing confusion regarding the rights of those populations. Canada, like the United States, had an ever-evolving legal landscape as it pertained to its indigenous populations. Throughout the 19th and 20th century, the Canadian Indian Act evolved through many acts and amendments. However, despite the layers of changes that have occurred, the deployment of COVID-19 legislative relief to indigenous populations may have been tangled, but it was not confusing.

Canada's focus on the individual and the United States' focus on tribes provides differing to establishing proof of identity. The United States requires an indigenous person to establish identity through reliance on their tribe. This allows for individuals to slip through the cracks and creates the need for collective action. Furthermore, this elevates the burden of proof, forcing a population to establish a myriad of factors. Canada's focus on the individual casts a big net and may stretch and thin resources--but it does not leave individuals behind. Comparing population statistics between the United States and Canada reveals astonishing differences. In 2021, the total aboriginal population in Canada was 1.8 million. The overall population in Canada in 2021 was 36.99 million. In the United States, in 2021, there was an estimated 3.158 million identifying as an American Indian. The overall population in the United States was 331.89 million. When accounting for overall populations of both Canada and the United States, indigenous populations in Canada made up about 4.8 percent of its 2021 population whereas indigenous populations in the United States made up less than one percent of its 2021 population.

It does not take a person in MENSA to understand that the present world exists as a furtherance of our past. Just as a well written book establishes continuity based on preceding chapters, so too does our present rely on our past. Discrimination, inequities, and injustice reverberate today-compounding harm. The only way to address this harm is to redress the issues with knowledge and purpose of who we intend to benefit. The United States has been inconsistent in defining indigenous persons. Rather than define a population intended to receive benefits by recognizing the population's individual persons, the United States focuses on the group. This requirement establishes a collective action problem which forces a person to be dependent on their group. The United States should open the door to individuals in addition to groups-enabling persons to prove ancestry to receive federal assistance and benefits. There are ways to prevent double-dipping without short-handing the individual. Furthermore, the United States' definition has changed substantially throughout legislative agendas. While it is unclear if the Federally Recognized List Act of 1994 will stand as an anchoring body-establishing a foundation is one step towards providing consistency.

Articles and Comments Editor, University of Miami Inter-American Law Review, Volume 54; J.D. Candidate 2023, University of Miami School of Law; B.S. 2019, Political Science, Emory University.