Nations Tribal Sovereignty
By Roy Cook
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:
1. The tribe has been identified by reliable external sources on a substantially continuous basis as an Indian entity since 1900.
2. The tribe has maintained a continuous community from historical times to the present day.
3. The tribe has maintained political authority or influence over its members on a substantially continuous basis from historical times until the present day; and
4. 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
5. The current members of the tribe, as a whole, descend from a historic tribe or tribes that amalgamated; and
6. Tribal members are not principally members of an already recognized tribe.
7. 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.
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.
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.
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:
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.
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.
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.
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.