Background
By 1970, the federal termination policy of the 1950s — which produced P.L. 280 in 1953, the Menominee Termination Act in 1954, and the Klamath Termination Act in 1954 — had been recognized across the political spectrum as a moral and policy disaster. Tribes that had been "terminated" had seen their economies collapse, their cultures fractured, and their members thrust into poverty without infrastructure to absorb them.
On July 8, 1970, President Nixon delivered a Special Message to Congress on Indian Affairs that decisively repudiated termination and inaugurated the federal self-determination era. The message called for a reversal of termination, the restoration of trust relationships, and the active support of tribal self-government.
Every president since Nixon — Republican and Democrat — has affirmed the self-determination policy. It is the controlling federal Indian policy of the modern era and has been cited by the Supreme Court as the doctrinal backdrop against which P.L. 280-era statutes must now be read.
The Message's Core Repudiation
Nixon explicitly named termination as the wrong path and called for it to be replaced with self-determination. The message was extraordinary in its candor: a sitting president identifying a federal policy as morally and practically wrong and calling for its reversal.
Key Repudiation:
"The time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions." — President Richard Nixon, July 8, 1970
Key Language
"The time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions."
"Termination is wrong, in my judgment, for a number of reasons. First, the premises on which it rests are wrong... The second reason for rejecting forced termination is that the practical results have been clearly harmful in the few instances in which termination actually has been tried."
"Self-determination among the Indian people can and must be encouraged without the threat of eventual termination. In my view, in fact, that is the only way that self-determination can effectively be fostered."
"This, then, must be the goal of any new national policy toward the Indian people: to strengthen the Indian's sense of autonomy without threatening his sense of community."
How Nixon's Message Marks P.L. 280 as an Anachronism
Nixon's 1970 message is the executive branch's formal repudiation of the policy that produced P.L. 280. It is not binding law in itself — but it is the foundational policy statement of the modern federal Indian-affairs era. Every Supreme Court decision since 1970 (McClanahan, Bryan, Williams, Santa Clara Pueblo, Lara, McGirt, Brackeen) has been decided against this backdrop.
For ATN's consent argument:
- 1. P.L. 280 is termination-era; Nixon repudiated termination. P.L. 280 still operates, but it operates within a federal Indian-policy framework that has officially rejected its parent policy.
- 2. Statutory interpretation. Courts interpret older statutes against current policy. P.L. 280's silence on consent should be filled in by reference to the self-determination era — not by reference to the termination assumptions Congress was operating under in 1953.
- 3. Bipartisan executive consensus. Every president from Nixon (Republican) to Biden (Democrat) has affirmed self-determination. There is no political daylight in this country on the proposition that termination was wrong. P.L. 280's continued operation is therefore an embarrassment that all branches recognize.
- 4. The "Indian future is determined by Indian acts and Indian decisions." This is the explicit consent principle — articulated by a sitting president in 1970, two years after the 1968 ICRA consent amendment. The consent argument is not a fringe legal theory; it is the official federal policy of the United States.
- 5. Cited by the Supreme Court. Santa Clara Pueblo, Lara, and Brackeen all cite the self-determination era as the controlling doctrinal framework. Nixon's message is the documented starting point.
Related Authorities
- Indian Civil Rights Act of 1968 — The legislative twin of Nixon's policy repudiation
- Santa Clara Pueblo v. Martinez (1978) — Supreme Court enshrines the self-determination interpretive principle
- Menominee Tribe v. United States (1968) — The Court refused to "lightly impute" termination to Congress