Governmental
relations between the European settlers in North America and the
Original American people were at times ambiguous. If there was a
need for alliances, land or treaties Tribes were recognized as being
sovereign Indian Nations. Most experiences are the opposite; the
English colonies and the American state launched an all-out assault
on the native sovereignty, culture, religion and population. Following
the impeachable behavior of Andrew Jackson and the 1830 Removal
Policy it is largely an outlaw belligerent self-serving government
and legal policy. (1)
In
this tormented century (1830-1934) USA policy supports covetous
interests: railroad, mineral, logging, and other self-serving interests
also coveted native lands. With government encouragement and support
widely advertising the promise of 'free land' settlers are sent
out to claim land within the sovereign territories of many Indian
Nations. Very often these urban or immigrant innocents are unaware
or ill prepared for the hostile reception they would face. The inevitable
culture clash 'justified' a rescue by federal armed forces, thus
securing the land for business interests. Tribal leaders were convinced,
coerced, or tricked into signing a total of 371 treaties up through
the 1870's; ceding almost all their land to the government, save
for some relatively small reservations. (2)
Historically
Indian resistance was often crushed by dramatic massacres, but for
the most part Native Americans were subdued by a combination of
disease, alcohol, food rationing, the cooperation of Indian collaborators,
and the theft of children for boarding school - a situation not
radically unlike today. (3)
The
Bureau of Indian Affairs (BIA) was part of the War Department, until
its transfer to the Interior Department. Non-Indian homesteaders
were used as militia to police Indian people--some taking the task
more seriously and viciously than the Army would have, while others
came to see Indian neighbors as good trading partners. (4)
Some
of the numerous terms to describe the American Indian Nations legal
relationships with United States are: guardianship, trustee, domestic
dependent nations; U.S. citizen, but excluding constitutional protections,
non-U.S. Citizen, and tribal citizen; state like entities, sovereign
nations and poor nations, but without sovereign status. All these
legal terms serve a special interest, even in modern times, in the
complicated relationship between Tribal Indian Nations and United
States. Including the divisive "blood quantum" racist policy that
has attacked traditional leadership and introduced bigotry and confusion
in the Indian Nations.
These
legalistic 'forked tongues' hollow words were not lost in the wind.
American Indian Nations understood for the first time 100 years
ago that the consequences of a lack of constitutional rights, guaranteed
to non-Indians, in the U.S. Supreme Court's interpretation of the
relationship between tribes and Congress in Lone Wolf vs. Hitchcock.
Wilkins called it the "darkest day for sovereignty rights."
In this ruling Supreme Court Justices abolished provisions in the
1867 Medicine Lodge treaty between the Kiowa, Comanche and Apache
tribes and Congress.
The
U.S. Supreme Justices on Jan. 5, 1903, announced their decision
in the Lone Wolf vs. Hitchcock case, where three Indian Nations
tribes were told that tribes were without any rights that the federal
government were bound to uphold. In this ruling, the Supreme Court
declared that Congress has plenary power that was developed by previous
Supreme Court cases and that if the U.S. Congress thought it had
the best interest of these tribes in mind to have the lands allotted.
The ruling held that the Supreme Court would not look behind what
Congress had done, even if they had reliable and good evidence that
the government had been involved in activities that had been quite
questionable.
The
USA Supreme Court in its ruling allowed Congress to break any Indian
Nations treaty with or without the consent of American Indian beneficiaries
and then sell off their Indian Nations tribal lands.
In
the face of many challenges this convoluted ruling would not be
overturned until the political question behind the case was overthrown
by Sioux Nation vs. United States in 1980, however, the plenary
power that Congress claims to have over Indian Nations has never
been effectively overturned. So how does the Lone Wolf vs. Hitchcock
case affect Indian Nations 100 years later? A most chilling result
is that American Indian Nations are the only people in the country
over whom the Democratic government can (legally) exercise absolute
power.
In
brief: USA starts wars, makes treaties to break up tribes, establishes
factory system reservations, and attempts to destroy traditional
culture. This is generally the policy until the 1936, Indian Reorganization
Act, in which USA federal authorities established tribal councils
on the reservations based on the structures of the USA system, and
after some further challenges. In many instances these BIA tribal
councils supersede and attack the traditional Indian Nations form
of government. (5)
In
1947, following the 1946 Indian Claims commission, the Acting Commissioner
of Indian Affairs proposed to terminate the federal governments
responsibility to specific tribes. This termination was supposed
to be a cheap solution to Federal treaty obligations and based on
a satisfactory degree of acculturation to white ways, economic self-sufficiency,
the willingness of the tribe to give up federal aid and the parallel
willingness of the state government to pick up responsibility. A
complex example of shifting responsibility from the federal level
to the states is Public Law 280. Ultimately, the plan was designed
to save the federal government money. The policy, however, was a
disaster. (6)
The
Termination Plan was accompanied by an urban relocation plan started
in 1950. Urban relocation included vocational job training to teach
Native Americans job skills to sell in non-reservation labor markets.
(7)
All
these factors have contributed to the divisive divide and conquer,
haves and have not, card-carrying confusion that is the: Indian,
Native American, Aboriginal, Tribal, Indio, and Redman, Rez world
today. Many tribal people are affirming their heritage and are seeking
legal federal recognition. Federal recognition, before 1978, had
been accorded to Indian tribes through treaty, land set aside for
a tribe, by legislative means, by various forms of administrative
decision within the Executive Branch of the Federal Government,
or through cases brought in the courts. However, in 1978 the Bureau
of Indian Affairs enacted administrative procedures governing the
administrative process for Federal acknowledgment. The 1978 regulations
(Title 25 of the Code of Federal Regulations, Part 83) departed
significantly from what had been prior Bureau practice. From 1935
to 1974, the BIA determined tribal existence based on whether the
tribe fulfilled one or more of following:
a)
had treaty relations with the U.S.;
b) had been denominated a tribe by act of Congress or executive
order;
c) had been treated as having collective rights in tribal lands
or funds;
d) had been treated by a tribe or band by other tribes; or
e) had exercised political authority over its members through
a tribal council or other governmental forms.
The
new 1978 regulations took a socio-anthropological approach and lacked
any reference to treaties, acts of Congress or executive orders
as a means of prior federal recognition. The regulations, which
are still in use today, require a petitioner (the tribe applying
for federal recognition) to meet seven criteria by demonstrating
that:
-
The
tribe has been identified by reliable external sources on a
substantially continuous basis as an Indian entity since 1900.
-
The
tribe has maintained a continuous community from historical
times to the present day.
-
The
tribe has maintained political authority or influence over its
members on a substantially continuous basis from historical
times until the present day; and
-
Has
a governing document which it must submit, or if it does not
have a formal governing document, a statement describing its
government operations and membership criteria over its affairs
and members; and
-
The
current members of the tribe, as a whole, descend from a historic
tribe or tribes that amalgamated; and
-
Tribal
members are not principally members of an already recognized
tribe.
-
The
tribe was not terminated by legislation.
The
Assistant Secretary for Indian Affairs currently carries out the
prescribed duties through the Branch of Acknowledgment and Research
(BAR) within the Bureau of Indian Affairs. Petitioning for federal
recognition is an exhaustive process that includes submitting a
letter of intent requesting acknowledgment; submitting a petition
with supporting documents; undergoing a preliminary review of the
petition for purpose of technical assistance; awaiting notice of
active consideration; being actively involved in the BAR staff's
consideration of the petition; awaiting the proposed finding on
federal recognition being published in the Federal Register; undergo
public comment; and awaiting the final determination of federal
recognition.
A
team consisting of an anthropologist, a genealogist, and a historian
reviews each petition. If BAR refuses to acknowledge the petitioning
tribe, the only opportunities to contest the adverse findings is
to request reconsideration from the Assistant Secretary through
the Secretary of Interior, or seek an appeal through the Interior
Board of Indian Appeals, or ultimately through federal court review.
The
Department of Justice is fully committed to safeguarding the constitutional
and statutory rights of American Indians, as well as all other Americans.
Federal
law prohibits discrimination based on race or national origin by
the federal, state and local governments, or individuals against
American Indians in such areas as voting, education, housing, credit,
public accommodations and facilities, employment, and in certain
federally funded programs and facilities. Various federal criminal
civil rights statutes also preserve personal liberties and safety.
The existence of the federal trust responsibility towards Indian
tribes does not diminish the obligation of state and local governments
to respect the civil rights of Indian people.
Through
the Indian Civil Rights Act, Congress selectively has derived essential
civil rights protections from the Bill of Rights and applied them
to Indian tribes. 25 U.S.C. 1301. The Indian Civil Rights Act is
to be interpreted with respect for Indian sovereignty. The primary
responsibility for enforcement of the Act is invested in the tribal
courts. In the criminal law context, federal courts have authority
to decide habeas corpus petitions after tribal remedies are exhausted.
The
mandate to protect religious liberty is deeply rooted in this Nation's
constitutional heritage. The Department of Justice seeks to ensure
that American Indians are protected in the observance of their faiths.
Decisions regarding the activities of the Department of Justice
that have the potential to substantially interfere with the exercise
of Indian religions will be guided by the First Amendment of the
United States Constitution, as well as by statutes which protect
the exercise of religion such as the Religious Freedom Restoration
Act, the American Indian Religious Freedom Act, the Native American
Graves Protection and Repatriation Act, and the National Historic
Preservation Act.
Notes:
1. |
The
pattern of removal of indigenous peoples from the land continued
until the late 1880s, enforced by military roundups or scorched-earth
policies. The Indian Removal Act (1830) is one example among
many of US policy at this time. Often Indians were forced off
their land to make way for commercial farming in the Midwest,
the rapidly expanding cotton plantation industry in the South,
and the railroad, without which the first two industries could
never survive. The Indian Removal Act, however, gave the federal
government the funds to resettle resistant tribes by force.
In the winter of 1831 and 1832, the Choctaw were marched from
Mississippi and Alabama to Indian Territory in what is presently
Oklahoma. The Creek were removed from Alabama in 1836 by the
army. And in 1838 about 20,000 Cherokee were evicted from their
lands in what is today the northern intersection of Georgia,
Alabama, Tennessee, and North Carolina. Nearly one-fourth of
the men, women, and children of the Cherokee died on the forced
march, otherwise known as the Trail of Tears. |
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2. |
In
1871 Congress began the policy of establishing reservations
for displaced tribes, and about this time, the Bureau of Indian
Affairs was established, eliminating any remaining rights
of self-determination. Interestingly, the B.I.A. originated
out of the US War Department. Reservation policy was intended
to protect Indians from White settlers, but ultimately the
efforts were unsuccessful. During the 1880s, repeated violence
broke out between White farmers, herders, and miners and Indians
on several reservations. As a result, the US government reversed
its reservation policy, which recognized community-owned tribal
lands. Instead, it began a policy of land grants to individual
families with the General Allotment or Dawes Act of 1887.
This shift marks the start of the period of coercive assimilation.
During the period of coercive assimilation, the US government
sought to teach Indians how to become self-sufficient farmers,
using techniques similar to those of the white settlers. The
Dawes Act of 1887 forced Native Americans to take allotments
of reservation land, freeing up the remainder for sale to
the wave of new European immigrants during the middle of the
19th century. Many Indian farmers found, however, that their
land allocations were arid or semi-arid and virtually useless
for farming. Apparently the more fertile land was reserved
for sale to non-Indians. Land grants were based on the "blood
quantum" measure, which the US government used to determine
who the "real" Indians were. This divisive "blood quantum"
racist policy has introduced bigotry and confusion in the
Indian Nations. Here is a critical example: The Osage Nation
of Oklahoma has just four members -- all older than 96 --
who are recognized by the federal government. More than 20,000
Osage descendants in several states, including Kansas, Oklahoma,
Arizona, California, Colorado, New Mexico and Texas, aren't
either. A 1906 law gave all those on the rolls before June
30, 1907, a portion called a headright. Those 2,229 people
are the only federally recognized members of the Osage Nation.
Those members have about 4,000 descendants, 3,000 of whom
have voting rights in what is similar to a corporation with
shareholders. Only when a person inherits a headright or a
portion of a headright does he or she have voting rights.
However, those rights don't make those descendants members,
sound crazy? You bet!
In
the 50 years of land allotment, bureaucratic bungling and
ineptitude, Native Americans lost nearly 90 of their 138 million
acres, and about half of the remaining land was desert.
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3. |
Governmental
policies were also designed to make the Indian peoples give
up their traditional values and ways of living in order to become
like the Anglo farmer of the American ideal. To reinforce this
assimilation, the B.I.A. established a school system along with
missionary schools to teach children English language skills
and the lifestyles of Anglo-Americans. Children were forced
to attend boarding schools on a year-round basis to severe the
link between them and their families' traditional values. Punishment
was used to prevent children from speaking their own languages,
their hair was cut, and they were taught to eat, speak, and
behave like whites. They were also converted to various Christian
denominations. As a result of this harsh treatment, along with
overcrowding, poor teacher and educational standards, excessive
work requirements, and poor health conditions, there was an
extraordinarily high dropout rate for Native American students
in the boarding schools. The spirit of this time period is captured
in a quotation by Thomas Jefferson Morgan, who as Commissioner
of Indian Affairs, Thomas Jefferson Morgan stated in 1889 that:
"The Indians must conform to the white man's ways, peaceably
if they will, forcibly if they must. They must adjust themselves
to their environment, and conform their mode of living substantially
to our civilization. The civilization may not be the best possible,
but it is the best Indians can get. They can not escape it,
and must either conform to it or be crushed by it." |
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4. |
Among
the efforts of the US government to crush Native American identity
was the Indian Citizenship Act of 1924. Although the act granted
Indians voting rights for the first, it also undermined tribal
sovereignty. In protest, the Hopi and the Onondaga still refuse
to use American passports and have continued to issue their
own instead. |
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5. |
Tribal
restoration policy began with the Indian Reorganization Act
(IRA)(Wheeler-Howard Act of 1934), which provided for a limited
self-determinism for the tribes and a reduction in the authority
and supervision of the B.I.A. The commissioner of Indian Affairs
during this time (John Collier) believed in a reformulation
of Native American community living. The two guiding principles
of the IRA were self-government with democratic ideals and
communal economic enterprises to foster better economic conditions.
The persistent distrust of the federal government, however,
slowed and even aborted the goals of the program.
Indian
education was also reformed, based on the principles of Progressive
Educational movement inspired by John Dewey. A system of day
schools replaced the boarding schools to allow students to
remain in their own communities. When students did attend
public schools, they were to be mainstreamed into the student
body, with teachers paying special attention to cultural differences
and tribal customs.
The
new policy demanded that teachers and administrators adjust
and change basic attitudes in order to accommodate this new
vision for Native American children. But long-held beliefs,
values, and stereotypes are difficult to change.
Teachers
were inadequately retrained, and additionally, there was fraud
in the distribution of federal moneys for the program, which
doomed its success. The day schools on reservations ended
up with minimal funding, resulting in the employment of inadequate
teachers and inappropriate course development. More and more
Indian students attended public schools, but there was little
attention paid to the special needs of Native American students.
To
complicate matters, World War II disrupted the further implementation
of the IRA. Between 1941 and 1960s the federal government
pursued a renewed effort to assimilated Indians into mainstream
American society. Off-reservation jobs attracted many Native
Americans into urban areas to work in the war industry. Once
the war ended, many of these jobs were terminated. Although
large numbers of Indians returned to reservations, equally
large numbers remained in urban areas.
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6. |
It
does not appear the tribal groups that voted for the Termination
Plan understood its ramifications. In addition, Congress coerced
many positive votes among tribes by withholding federal moneys
until tribal members voted for termination. Enumerated in Public
Law 280 were six states which were obligated to assume jurisdiction
from the outset of the law: Alaska, California, Minnesota, Nebraska,
Oregon, and Wisconsin. States that have assumed at least some
jurisdiction since the enactment of Public Law 280 include:
Nevada, South Dakota, Washington, Florida, Idaho, Montana, North
Dakota, Arizona, Iowa, and Utah. Once federal money was terminated,
the reservation economies failed and infant mortality soared
due to inadequate medical care and rampant tuberculosis. In
short, those tribes that Congress sought to terminate were,
in fact, not ready. |
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7. |
The
BIA established Indian centers in urban areas, and by the early
1970s, about ten thousand Indians were leaving their reservations
each year to live in cities, either on a temporary or permanent
basis. All in all, over 100,000 Indians migrated into these
urban centers. While urban relocation helped to further deteriorate
economic conditions on the reservations, it also stimulated
the growth of Pan-Indian communities and the emergence of organizational
networks in the 1950s. These would give births to such activist
groups as the American Indian Movement (AIM) in the late 1960s,
which was closely monitored by the FBI as a dangerous revolutionary
organization. During the 1960s, the War on Poverty targeted
N.A. as well as other groups. Indians received the actions of
the War on Poverty with mixed responses. Some felt that it was
"a hypocritical apology for the misery that the white man
had caused." Yet there were some positive features of US
policy during this period. For example, Head Start programs
encouraged Indian organization along tribal lines; some area
developmental programs encouraged intertribal organization;
and programs such as Upwardbound and Job Corps supported supra-tribal
organization. The Nixon administration encouraged intertribal
cooperative efforts in economic development. |
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