Self-Determination and Sovereignty, 1970–Present
Patty Loew
Chronology of Events
The Struggle for Treaty Rights for Chippewa People
Chippewa Treaty Rights refers to a 25-year struggle (1974–1999) over off-reservation hunting, fishing, and gathering rights established by the Lake Superior tribe of Chippewa in three nineteenth-century land-cession treaties negotiated with the U.S. government. Two major court rulings, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, et al., v. Lester P. Voigt, et al. (also known as the “Voigt decision”) and Minnesota v. Milles Lacs Band of Chippewa Indians (also known as the “Mille Lacs decision”), bookended a period of furious lawsuits and violent confrontations, primarily over spearfishing and gill netting by Chippewa bands in Michigan, Wisconsin, and Minnesota. Ultimately, in the Mille Lacs decision, the U.S. Supreme Court definitively ruled in favor of the Chippewas (or Ojibwes, as they call themselves), a decision that many legal scholars interpret as a reinforcement of tribal sovereignty and acknowledgment of Indian treaty rights. The Chippewa treaty rights struggle has had far-reaching implications. Since the court ruling, treaty rights have been used successfully by the Ojibwes and their allies to block perceived environmental threats, including sulfide and iron mining proposals, in the ceded territories where off-reservation hunting, fishing, and gathering rights are legally presumed to exist.
In March 1974, when two Chippewa brothers informed the local sheriff that they intended to spearfish off-reservation in accordance with three nineteenth-century treaties, they intended to get arrested. What Fred and Mike Tribble of the Lac Courte Oreilles Band of Lake Superior Chippewa could not have imagined, however, was that their act of civil disobedience would become the genesis of one of the most important Indian treaty rights lawsuits of modern times. The case transformed the political landscapes of three Midwestern states and continues to affect the way communities across the country relate to Indian nations on environmental issues.
Between 1778 and 1871, the United States negotiated hundreds of treaties with Indian nations. Article Six of the U.S. Constitution explicitly declared treaties to be “the supreme law of the land.” Like other Indian nations coerced into land-cession treaties, the Chippewas, also known as the Ojibwes or Anishinaabes, agreed in three nineteenth-century treaties to give up roughly the northern third of present-day Wisconsin, a portion of northeastern Minnesota, and a small slice of Michigan’s Upper Peninsula. The territory ceded contained an estimated 39 million acres, for which the Ojibwes received a total cash payment of $602,500 or 64 cents per acre. The government paid its obligation in annuities spread out over a period of 20 to 25 years.
During the treaty negotiations, the Ojibwes expressed concern over access to fish, wild rice, and maple trees and other resources that had sustained them for generations. In the first two of three treaties, negotiated in 1837, 1842, and 1854, the Ojibwes explicitly insisted upon the continued rights to hunt, fish, and gather in the territories ceded to the U.S. government (Satz 1991, 131–85). It was this language that formed the basis of the 25-year court battle touched off by the Tribble brothers’ spearfishing incident.
In 1848, when Wisconsin became a state, officials assumed their jurisdiction, and authority extended to everyone, including members of sovereign Indian nations, within the boundaries of the state. Conservation wardens arrested tribal members who ventured off-reservation to hunt, fish, and gather in accordance with their treaties, and confiscated their weapons. Even those who exercised their rights on the reservation sometimes faced prosecution. In 1901, a Bad River tribal member was found guilty of setting a gill net on the reservation. By the time a district court ruled that the state had no authority to impose its fish and game laws on the reservation, the accused had already served his sentence—30 days at hard labor.
Allotment, the systematic privatization of tribal lands begun in earnest after the 1887 General Allotment Act, and the transformation of the landscape due to western expansion, restricted tribal access to traditional hunting, fishing, and gathering places. Throughout the nineteenth and twentieth centuries, attempts to hunt deer or spear fish off-reservation drove those activities underground. “A lot of times I’d lay out in the grass hiding,” Red Cliff elder Ike Gokee related, “afraid to move because there was a car close by, and we didn’t know whether it was the game warden” (Gokee,1994).
The Ojibwes were not alone in their struggle. During the 1950s and 1960s, similar battles occurred in Washington State. Tribal members held well-publicized “fish-ins,” in which they attempted to net fish in support of their treaty rights and in violation of state law. Commercial fishing, industrial pollution, and hydroelectric dams, among other factors, had seriously depleted the Native salmon runs. The decline of the resource only heightened tensions between Native and non-Native fishers and led to violent confrontations. The fish-ins culminated in a federal lawsuit against the state of Washington. The resulting 1974 Boldt decision, which established a 50–50 allocation of fish for Native and non-Native harvests, would later be invoked by the federal judge presiding over the Wisconsin case.
In contrast to the events in Washington, the first nine years of the Chippewa treaty rights case were quiet. Even the Wisconsin Department of Natural Resources had forgotten about Voigt, according to George Meyer, who succeeded Department of Natural Resources Secretary Lester Voigt, for whom the suit is named. When the appellate court issued its ruling, “It was like a train hitting a wall,” according to Meyer (Meyer, 2010). Public reaction was swift and confrontational. Anti-treaty rights groups, including Protect American Rights and Resources (PARR) and Stop Treaty Abuse-Wisconsin (STA), organized protest rallies and developed legal strategies to thwart the Native harvest. The eleven member bands of Lake Superior Ojibwe, in turn, established the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) to provide natural resource management, regulate the harvests, and provide public information about treaty rights and sovereignty. GLIFWC represented its 11 member bands in court battles and in negotiations with the state.
In 1985, when Ojibwe tribal members first moved off the reservation to spear walleye, they were met by angry crowds of white hunters and fishers, resort owners, and others connected to the tourism trade. Spearers attempting to launch their boats walked a gauntlet of rock-throwing, jeering mobs. On the water, spearers were even more vulnerable. Spearing occurs at night in shallow waters during spawning season (usually the last two weeks of April or the first two weeks of May), so tribal boats moved perilously close to private homes and docks. While one occupant sits and steers, the other, wearing a battery-operated helmet light, stands and spears—making the spearer a bright target against a dark sky. As spearing boats neared the shoreline, they faced gunshots, protest boats attempting to ram or swamp them, and projectiles fired from high-powered sling slots. “My people are suffering,” Lac du Flambeau Tribal Chair Mike Allen declared in 1989. “We are under incredible physical and verbal attack” (Whaley 1994, 106).
The escalating violence over treaty rights led the state in 1989 to offer $50 million to the largest spearing band, Lac du Flambeau, and $10 million to the smallest band, Mole Lake, to “lease” their treaty rights. The notion of paying the Ojibwes not to harvest walleye infuriated anti-treaty groups like PARR and STA-Wisconsin. Ironically, on that point the general membership of both tribes agreed, voting overwhelmingly against the lease. The proposal touched off a political struggle between the Lac du Flambeau Tribal Council, which endorsed the lease, and Wa-Swa-Gon Treaty Association, an opposing faction led by Tom Maulson and Nick Hockings, who lobbied to defeat it. Lac du Flambeau members would later turn their leadership out of office and elect Maulson as president.
The lease also drew the wrath of the other Ojibwe bands, who accused the state of mounting a “divide and conquer” campaign against them. Terms of the lease required the Lac du Flambeau to identify their traditional spearing lakes, which would preclude other bands from spearing in them. The other bands argued they were all signatories to the treaties and held the rights in common. Traditionalists likened the “buyout” to the state paying Catholics not to go to church on Sunday or bribing Jews not to commemorate Passover. As Hockings explained, “If you sever these webs that connect us to the earth—whether it’s the deer or whether it’s fish or whether it’s the timber or the gathering rights—if you sever these, you start losing the identity of who you are” (Hockings 1990).
Wisconsin Governor Tommy Thompson responded to the failed lease attempt by seeking an injunction, not against the protestors, but against the spearers. In refusing his request, an angry Judge Crabb likened the request to efforts during the 1960s to suppress black voters and civil rights. “If this court holds that violent and lawless protests can determine the rights of the residents of this state,” she asked, “what message will that send?” (Lac du Flambeau v. Stop Treaty Abuse-Wisconsin, 991 F.2d 1249 (7th Cir. 1993)). Americans who tuned into national network news programs that same week were subjected to disturbing images from Wisconsin. CNN broadcast a story featuring an interview with a protester holding the effigy of an Indian head on a spear. A local ABC affiliate interviewed a protestor holding a sign that read, “Hay [sic] Tommy T., our north timber is for timber wolves, not timber niggers.”
The obvious racial undertones of the dispute prompted the U.S. Commission on Civil Rights to investigate. Its 1989 report concluded that “physical threats and racial harassment of Chippewa Indians in northern Wisconsin have been commonplace” (U.S. Commission on Civil Rights 1989, 3). Some of the harassment had been documented by members of treaty support organizations, including Witness for Non-Violence for Treaty and Rural Rights in Northern Wisconsin (Witness). Borrowing techniques used in the black voting drives of 1964’s Freedom Summer, Witness trained hundreds of observers, including students and clergy primarily from Milwaukee and Madison, in non-violent strategies. They formed protective circles around the spearers and their families on the landings and used cameras and audio recorders to document civil rights violations. Judge Crabb cited that evidence in her 1991 decision to grant injunctive relief to the Ojibwes in a petition filed by the ACLU on their behalf.
Between 1974 and 1999, there were 54 major legal decisions related to Chippewa treaty rights—11 in Michigan, 19 in Wisconsin, and 18 in Minnesota. An additional six rulings involved STA-Wisconsin, the anti-treaty group, whose leader, Dean Crist, was ordered to pay a $182,000 fine. In granting a preliminary injunction against STA-Wisconsin, Judge Crabb ordered the group to stay away from the boat landings and refrain from interfering with tribal spearfishing. U.S. Court of Appeals for the Seventh Circuit upheld the injunction, declaring, “the stench of racism is unmistakable” (Lac du Flambeau Band v. Stop Treaty Abuse-Wisconsin 1990).
The 1991 injunction was one of two major factors that contributed to the collapse of the anti-treaty movement. The other was the release that same year of a federal report, Casting Light upon the Waters: A Joint Fishery Assessment of the Wisconsin Ceded Territory, spearheaded by Senator Daniel Innouye (D–HI), who headed the U.S. Senate Select Committee on Indian Affairs. The report concluded that spearfishing was not threatening the walleye fishery and implored all stakeholders to move forward together in a new era of cooperation. That same spring Judge Crabb issued her summary decision on the treaty rights issue and gave each side three months to appeal. Both the state and the Ojibwes had won concessions during the 19 appearances in federal court, and neither side was willing to risk losing those advantages. No appeals were filed.
A year later, in 1992, the issue resurfaced in Minnesota. The Mille Lacs Band sued, alleging that Minnesota had violated the same 1837 treaty in suppressing hunting, fishing, and gathering rights in that state. Fearing a repeat of boat landing violence, the Mille Lacs Band, the governor, and the Minnesota Department of Natural Resources worked out a compromise. The band agreed to drop its lawsuit and to limit its walleye harvest on Lake Mille Lacs to 24,000 pounds. In return the Mille Lacs Band would have received $8.6 million and 7,500 acres of land from the state, along with exclusive fishing rights to just under five percent of the lake (Squires 2015). After the Minnesota legislature rejected the agreement, Mille Lacs resumed its lawsuit. In 1994, federal Judge Diane Murphy ruled in favor of the Ojibwes, a decision the state of Minnesota immediately appealed.
The Minnesota Hunting and Angling Club, led by former Minnesota Vikings Coach Bud Grant, held an anti-treaty rights rally at the state capitol. A short time later, the protest group Proper Economic Resource Management (PERM) formed and raised money for six landowners who joined a lawsuit filed against Mille Lacs by the state and nine counties. Over the next five years, various facets of off-reservation hunting, fishing, and gathering rights found their way into federal district and appeals courts. Although Minnesotans braced for violence, the dispute never reached the level of contentiousness that marked the Wisconsin experience. However, in 1998, when the U.S. Supreme Court agreed to hear the case, the decision shocked the Ojibwes. The justices take up a limited number of cases each year, and both the Seventh and the Eighth Circuits had ruled favorably for the tribe. The Ojibwe reasoned that if the high court intended to uphold the tenets of their off-reservation rights, it would have let the lower court rulings stand. By agreeing to hear the case, the court left the door open for some or all of the Voigt decision to be overturned.
Sidebar 1: The Educational Mandate of Act 31
Perhaps the most enduring legacy of the Chippewa Treaty Rights controversy was passage of Act 31, an educational mandate inserted into the 1989–91 biennial budget by the Wisconsin legislature. The legislation requires the study of Wisconsin American Indian history, culture, and tribal sovereignty. Hailed by some as a long-term strategy to educate Wisconsin residents about the eleven federally recognized Indian nations in Wisconsin, it was criticized for failing to provide funds to implement the initiative. Specifically the Act created five statutory sections:
Act 31
s. 115.28(17)(d) Treaty Rights Curriculum
In conjunction with the American Indian Language and Culture Education Board, develop a curriculum for grades 4 to 12 on the Chippewa Indian’s treaty-based, off-reservation rights to hunt, fish, and gather.
s. 118.01(c)7–8 Human Relations
Each school board shall provide an instructional program designed to give pupils:
7. An appreciation and understanding of different value systems and cultures.
8. At all grade levels, an understanding of human relations, particularly with regard to American Indians, Black Americans, and Hispanics.
s. 118.19(8) Teacher Certification
Beginning July 1, 1991, the state superintendent may not grant to any person a license to teach unless the person has received instruction in the study of minority group relations, including the history, culture, and tribal sovereignty of the federally recognized tribes and bands located in the state.
s. 121.02(1)(h) Instructional Materials
Each school board shall:
Provide adequate instructional materials, texts, and library services which reflect the cultural diversity and pluralistic nature of American society.
s. 121.02(1)(L)4 K-12 Social Studies Instruction
Each school board shall:
Beginning September 1, 1991, as part of the social studies curriculum, include instruction in the history, culture, and tribal sovereignty of the federally recognized American Indian tribes and bands located in the state of Wisconsin at least twice in the elementary grades and at least once in the high school grades.
In fall 1998, GLIFWC organized the Waabanong Run in order to draw attention to treaty rights. Runners, representing not only the Ojibwes but also other Native and non-Native supporters, carried the eagle staff from the Lac du Flambeau reservation to the nation’s capital. The three-week relay culminated in drumming and speeches on the steps of the U.S. Supreme Court building just as the justices prepared to hear oral arguments.
In March 1999, in a 5–4 decision, the high court ruled in favor of the Ojibwes, a decision that effectively ended 25 years of litigation. Ironically, it was Sandra Day O’Connor, an ardent states’ rights justice, who delivered the ruling, stating: “… the tribe’s treaty rights to hunt, fish, and gather on state land can coexist with state natural resource management” (O’Connor in Minnesota v. Mille Lacs 1999).
Since 1999, the Mille Lacs decision has been invoked in dozens of Indian law cases, ranging from those involving tribes such as the Skokomish in the Pacific Northwest and the Navajo in the Southwest to Plains nations, including the Oglalas, Santees, and Yankton Sioux, to the Mattaponis in Virginia. It is significant not only because of the clear affirmation of Indian treaty rights, but also because the high court reinforced important judicial canons—that treaties must be interpreted as the Native signers would have understood them at the time of the negotiations and that ambiguity in the treaties must be resolved in favor of the Indian nations.
The Chippewa treaty rights issue has also played a major role in environmental struggles involving non-Indian enterprise in the ceded territories. During the late twentieth and twenty-first centuries, treaty rights were invoked in tribal efforts to block two major mine proposals. In 1994, Exxon resurrected a plan to create a large copper and zinc mine near Crandon, Wisconsin. Over the next ten years, the Sokaogon Chippewa Community (also known as the Mole Lake Ojibwe), whose reservation lay adjacent to the mine site, argued that the mine threatened its wild rice on the reservation and hunting, fishing, and gathering rights off the reservation. Environmental groups, hunting and fishing organizations, many local residents, and several other tribes lent their support to Mole Lake. Exxon and its successors eventually pulled out of the project, and in 2003 Mole Lake and the Forest County Potawatomis purchased the mine site and promised that mining would never take place there.
In 2011, the Bad River Band of Lake Superior Chippewa invoked treaty rights when the Gogebic Taconite Company announced plans to site a massive open-pit taconite mine at the headwaters of the Bad River watershed, a project that tribal members feared would destroy their rice beds. Again, the Ojibwes and their supporters used their treaty rights to rally support for their position. Three years later, the company announced it would withdraw from the project.
The Chippewa treaty rights struggle is important within the context of other high-profile national “Red Power” activities, among them the takeover at Alcatraz Island (1968), the American Indian Movement (AIM) occupation of the Bureau of Indian Affairs building in Washington D.C. (1972), and the AIM takeover at Wounded Knee, South Dakota (1973). The legal implications of the court decisions surrounding the Ojibwes and their treaties not only solidify the rights specific to the Lake Superior tribe of Chippewa, but also lend weight to those established in hundreds of other treaties negotiated over a span of 250 years.
Biographies
Walter Bresette (Red Cliff Ojibwe) was a spokesperson for the Ojibwes’ treaty rights and a founder of Witness for Non-Violence for Treaty and Rural Rights. Witness trained observers and organized caravans of treaty supporters who traveled to northern Wisconsin boat landings and formed protective circles around the spearers and their families. Bresette later co-founded the Wisconsin Green Party.
Dean Crist was the founder of Stop Treaty Abuse-Wisconsin, one of the most confrontational groups opposed to Indian treaty rights. Crist organized scores of protests on northern Wisconsin boat landings in the late 1980s and early 1990s. The demonstrations, which sometimes featured mass arrests, became so unruly the National Guard was called out. In 1991, the American Civil Liberties Union successfully sought an injunction to keep STA-Wisconsin members from the boat landings. A federal judge fined Crist $182,000.
Tom Maulson was co-founder of Was-Swa-Gon Treaty Association, the group of Ojibwe spearfishers actively engaged in the exercise of treaty-based fishing, hunting, and gathering rights during the boat landing protests. When the tribal leadership of Lac du Flambeau voted to approve a $50 million proposal by the state in which the Ojibwes would agree not to spear walleye, Maulson strongly opposed it. Not only did Lac du Flambeau members reject the lease, they replaced their leadership and elected Maulson president.
George Meyer was lead negotiator for the state of Wisconsin and in 1993 became Secretary of the Wisconsin Department of Natural Resources, a post he held for eight years. Although early on he was cast in an adversarial role, Meyer eventually became a staunch defender of Indian treaty rights.
Tommy Thompson became governor of Wisconsin in 1987, running on a platform that included strong opposition to the Voigt decision and a promise to end Ojibwe spearfishing in the ceded territory. During his 14 years in office, he directed the state’s attorney general to contest and appeal more than a dozen federal court directives. In 2001, he left office to become U.S. Secretary of Health and Human Services under President George W. Bush.
DOCUMENT EXCERPT
Discrimination against Chippewa Indians in Northern Wisconsin: A Summary Report
In 1989, during the height of protest and violence on northern Wisconsin boat landings, the Wisconsin Advisory Committee to the U.S. Commission on Civil Rights released a report on Chippewa Treaty Rights. The document included historical and legal background on the dispute, described the scope of discrimination directed at the Ojibwe, and offered recommendations toward a peaceful resolution of the controversy. Here is an excerpt from the report, which formed the committee’s conclusions:
Summary
This report summarizes views and opinions provided at a forum conducted by the Wisconsin Advisory Committee in Wausau on April 27, 1989. It reports the perspectives of a number of knowledgeable persons interested in, but with opposing views and opinions on, issues related to Indian treaty rights, which the Advisory Committee may decide merit further investigation and analysis.
The information received primarily focused on the historical and legal framework of Indian treaty rights; efforts by State and local authorities to protect and enforce treaty rights; efforts made to educate and inform the public regarding Indian treaty rights and culture; the extent to which forms of discrimination may occur due to resentment of Chippewa treaty rights; efforts that are underway by State and local government to address discrimination that may occur; and recommendations for alleviating any discrimination or injustice against Indian people. Perspectives on these issues were provided by State government officials, tribal groups, community-based organizations and advocacy groups, and representatives from the media and business. The Committee hopes the information received will encourage ongoing and constructive dialogue on the issues and provide an ameliorating effect on existing problems regarding this matter.
The Advisory Committee found that tensions between Indians and non-Indians have been present for many years in northern Wisconsin. Since the Voigt decision in 1983, affirming the rights of Chippewa Indians to fish, hunt, and gather timber and other resources, tensions have transformed into increased racial hostility and fears of violence. This increased hostility has been particularly provoked by spearfishing. During the spring of 1989 tensions soared after the ruling by U.S. district court Judge Barbara Crabb allowing tribal fishermen to take 100 percent of the safe harvest and reducing of bag limits for non-Indian fishermen.
The Wisconsin attorney general and a history professor provided an overview of the historical and legal framework of Indian treaty rights. Both acknowledged that whatever views one has on the reinterpretation of the treaty, the court rulings on this issue are law and must be obeyed.
State officials admitted that the protests at the boat landings had been tainted with racism but contended that this had involved only a small group of people. Enforcement agencies were notified of these anti-Indian activities to ensure that civil rights violation did not occur.
Local law enforcement officials were praised for their professional and prompt response to protests at the boat landings. Since the forum, the Federal Bureau of Investigation is looking into possible civil rights violations by protestors who allegedly threw rocks and shouted racial slurs.
According to reports by the tribal leadership and other pro-treaty rights groups, “Save a Walleye, Spear an Indian” and “Save a Deer, Shoot an Indian” are examples of slogans directed at Indians and placed on promotional items such as hats, handguns, bumper stickers, and beer.
A spokesman for an antitreaty rights group claimed that his organization does not encourage or sanction racial hostility against Indians. He indicated that any racial hostility exhibited is due to fear that increased fishing and hunting rights by Indians threatens tourism, business, and personal and recreational real estate of the area.
There were numerous complaints regarding the lack of public knowledge about Indian treaty rights. The state and local education agencies were accused of failing to provide courses on Indian and treaty rights. Also, the local print and broadcast media in northern Wisconsin were accused of failing to cover stories related to treaty rights accurately and objectively.
The State and antitreaty rights groups specifically complained of the Federal Government’s failure to provide assistance in resolving the problems surrounding treaty rights. Since the forum, the Governor and members of the Wisconsin delegation have met with the U.S. Interior Secretary to request assistance.
Overall, the information received indicated that little has changed since the Committee’s last review of Indian treaty rights in 1984, except for an increase in racial polarization. However, a wide variety of suggestions were made by presenters that they believe should be considered in resolving treaty rights issues and the discrimination that has occurred as a result of their implementation. These suggestions are outlined below:
State Government
Tribal Representatives
Community-Based Organizations and Advocacy Groups
Pro-treaty Groups
News Media
Source: Wisconsin Advisory Committee to the U.S. Commission on Civil Rights, Discrimination Against Chippewa Indians in Northern Wisconsin: A Summary Report (Madison, WI: Wisconsin Advisory Committee to the U.S. Commission on Civil Rights, 1989).
Casting Light upon the Waters
In 1991, the U.S. Senate Select Committee on Indian Affairs released its report on the Chippewa treaty rights controversy. Casting Light upon the Waters examined the historical and contemporary socio-political factors that contributed to the dispute and concluded that the fishery had not been harmed by spearing. It called for a new era of cooperation for the betterment of Wisconsin’s natural resources. Here is an excerpt from the report.
Conclusion Regarding the State of the Resource. People concerned about the fishery resource of northern Wisconsin can be confident that it is being carefully studied and is protected. Chippewa spearing has not harmed the resource. Fish populations in the ceded territory are healthy. Three major factors currently impact northern Wisconsin fisheries: 1) reaffirmation of the Chippewa tribes as harvesters; 2) heavy angling pressure; and 3) continually changing environmental factors. As a result, popular fish species, such as walleye and muskellunge, are subjected to considerable stresses.
Available information suggests a number of conclusions concerning the effects of these stresses on the northern Wisconsin fishery. At this time; fish populations are not being over-exploited in most cases. For example, the average harvest of walleye does not exceed the agreed-upon maximum of 35 percent of the available adult stocks. In the lakes sampled, tribal spearing harvest of walleye has never exceeded this level. However, overall exploitation in some waters is of particular concern because lakes under 500 acres are more vulnerable to overfishing and environmental pressures than larger lakes. Further studies in such lakes are needed to monitor the effects of harvest levels and management actions. Moreover, current fish populations in most cases meet or exceed agreed- upon population goals. In 70 percent of walleye lakes studied, the populations are at or above the established goals. The number of female age classes exceed the agreed-upon goals in all lakes examined during 1986–90. This indicates stable reproductive capacity in those lakes. However, in 30 percent of the lakes, walleye numbers are below desired levels. This indicates that such lakes must receive further study to determine why the numbers are low and to ensure that the lakes are not being over-harvested.
Current information does not allow biologists to draw any conclusions about long-term trend s in individual fish populations. While current information indicates relatively healthy fisheries, long-term population trends currently cannot be detected. Fish managers recognize that there is a need to establish a reliable mechanism for assessing changes in fisheries and aquatic ecosystems.…
The tribal, state, and federal managers have embarked upon one of the largest studies of fishing ever conducted. They are using state-of- the-art methods and have collected a large pool of valuable information. They have established joint population goals and are standardizing assessment methods.
Preparation of the report yielded one very clear conclusion: The fishery of the ceded territory faces increasing pressures from all factors. The managers must continue to monitor populations and harvest levels, and evaluate assessment methods and management strategies. The pressures on the fishery require a continuation and further expansion of the joint monitoring and assessment efforts. The managers have demonstrated that they have the expertise to manage the Northern Wisconsin fishery for the benefit of all users. They are committed to management efforts that will assure that Northern Wisconsin’s fishery resource remains one of the best protected and best managed in the country.
Source: US Department of the Interior, Casting Light upon the Waters: A Joint Fishery Assessment of the Wisconsin Ceded Territory (Minneapolis: Bureau of Indian Affairs, 1991).
Further Reading
Lac du Flambeau v. Stop Treaty Abuse-Wisconsin, 991 F.2d 1249 (7th Cir. 1993)
Loew, Patty and James Thannum. “After the Storm: Ojibwe Treaty Rights 25 Years after the Voigt Decision.” American Indian Quarterly, Vol. 35, No. 2 (spring 2011).
McClurken, James. Fish in the Lakes, Wild Rice, and Game in Abundance: Testimony on behalf of Mille Lacs Ojibwe Hunting and Fishing Rights. East Lansing: Michigan State University Press, 2000.
Nesper, Larry. The Walleye War. Lincoln: University of Nebraska Press, 2002.
Satz, Ron. Chippewa Treaty Rights. Madison: Wisconsin Academy of Sciences, Arts and Letters, 1991.
U.S. Department of the Interior. Casting Light upon the Waters: A Joint Fishery Assessment of the Wisconsin Ceded Territory. Minneapolis: Bureau of Indian Affairs, 1991.
Whaley, Rick and Walter Bresette. Walleye Warriors. Philadelphia: New Society Publishers 1994.
Wilkinson, Charles. “To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa.” Oliver Rundell Lecture. Madison: University of Wisconsin Law School, Continuing Education and Outreach, 1990.
Wisconsin Advisory Committee to the United States Commission on Civil Rights, Discrimination against Chippewa Indians in Northern Wisconsin Summary Report. Madison: Advisory Committee to the United States Commission on Civil Rights, 1989.
Amy Casselman
Chronology
1786 |
The Treaty of Hopewell is signed with the Choctaw Nation. The treaty states that the Choctaws have criminal jurisdiction over non-Indians who settle on their land. |
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1788 |
The Constitution of the United States of America is ratified. Article I recognizes American Indian political sovereignty, and Article VI grants Congress the power to make treaties with Indian nations. |
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1831 |
The United States Supreme Court issues a ruling in Cherokee Nation v. Georgia. It rules that American Indian nations are not fully sovereign entities but instead “domestic dependent nations” whose relationship to the federal government resembles that of a “ward to his guardian.” |
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1832 |
The United States Supreme Court issues a ruling in Worcester v. Georgia. It rules that states do not have criminal jurisdiction in Indian country. |
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1855 |
The Treaty of Point Elliott is signed between the Suquamish Indian tribe (among others) and the United States. The treaty establishes the Suquamish Indian tribe’s Port Madison Indian Reservation. |
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1871 |
The Indian Appropriations Act becomes law and ends the process of treaty making with Indian tribes. |
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1885 |
The Major Crimes Act becomes law and extends federal jurisdiction over all “major crimes” in Indian country, including crimes committed by an Indian against an Indian. The law does not preclude dual jurisdiction with tribal governments. |
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The General Allotment Act (also known as the Dawes Act) becomes law. It starts the process of land division and privatization in Indian country and causes massive land loss for Native People. It dramatically affects the Suquamish tribe as a large number of non-Indians settle on the Port Madison Indian Reservation. |
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1903 |
The United States Supreme Court issues a ruling in Lone Wolf v. Hitchcock. It rules that Congress has plenary power to abrogate (break) treaties with American Indian nations. |
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1953 |
Public Law 280 becomes law. It forces six states to assume criminal jurisdiction over some or all of the Indian country within its borders. State governments assume criminal jurisdiction over Indian country for the first time. Subsequently, some states voluntarily adopt the law; others retrocede or alter its application. |
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1968 |
The Indian Civil Rights Act becomes law, extending most of the U.S. Bill of Rights to Indians in Indian country. It limits tribal sentencing authority to no more than a $500 fine and six months in jail for a single offense. This is later amended to a $15,000 fine and three years in jail under the Tribal Law and Order Act of 2010. |
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1973 |
The Suquamish establish a Law and Order Code that covers a variety of criminal offenses and extends criminal jurisdiction over both Indians and non-Indians. |
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1973 |
Mark Oliphant is allegedly involved in a drunken brawl and is arrested by Suquamish Tribal Police on the Port Madison Indian Reservation. He is incarcerated for five days in lieu of $200 bail. |
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1976 |
In Oliphant v. Schlie, Mark Oliphant appeals for a writ of habeas corpus to the Ninth Circuit Court of appeals. He argues that as a non-Indian, the Suquamish lack criminal jurisdiction over him. The Ninth Circuit denies his request. |
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1978 |
Mark Oliphant appeals the Ninth Circuit’s decision to the United States Supreme Court in Oliphant v. Suquamish. The Court sides with Oliphant, reversing the Ninth Circuit Court’s decision, and ruling that all Indian tribes lack criminal jurisdiction over non-Indians unless specifically authorized by Congress. |
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1990 |
The United States Supreme Court issues a ruling in Duro v. Reina. It holds that tribal criminal jurisdiction is limited to members of the prosecuting tribe. In response, Congress passes the “Duro Fix,” extending tribal criminal jurisdiction over all Indians, regardless of membership. |
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The Tribal Law and Order Act of 2010 becomes law. It addresses epidemic levels of Indian country crime and jurisdictional challenges by increasing coordination among tribal, state, and federal agencies. It specifically upholds the ruling in Oliphant v. Suquamish. |
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2013 |
The Violence Against Women Reauthorization Act of 2013 becomes law. Among other things, the law addresses epidemic levels of violence against Native women in Indian country by granting participating tribes special domestic-violence criminal jurisdiction over non-Indians. |
Tribal Criminal Jurisdiction: Oliphant v. Suquamish
Mark Oliphant v. The Suquamish Indian Tribe (Oliphant v. Suquamish) is a 1978 United States Supreme Court case concerning tribal criminal jurisdiction. The plaintiff, Mark David Oliphant, argued that as a non-Indian his arrest by Suquamish tribal police on the Port Madison Indian Reservation in Washington State was unlawful because the tribal government lacked criminal jurisdiction. In contrast, the Suquamish Indian tribe asserted that as a federally recognized tribe, they possessed the inherent sovereignty to prosecute crimes committed on their land, regardless of the racial identity of the perpetrator. In a six-to-two decision, the United States Supreme Court ruled in favor of Oliphant, holding that tribal governments do not have criminal jurisdiction over non-Indians unless specifically authorized by Congress. The ruling in Oliphant is a significant event in the history of American Indian political sovereignty and has had far-reaching consequences for American Indian people and governments.
The 1978 Oliphant decision stems from an alleged altercation that transpired during the annual Chief Seattle Days celebration on the Port Madison Indian Reservation of the Suquamish Indian tribe. At approximately 4:30 a.m. on August 19, 1973, Mark Oliphant was allegedly involved in a drunken brawl with attendees who were camped on Suquamish land. This alleged altercation led to Oliphant’s arrest by Suquamish tribal police, who charged him with assaulting a police officer and resisting arrest. Pursuant to a contract with the nearby City of Bremerton, Oliphant was incarcerated in an off-reservation jail in lieu of $200 bail, and after five days he was released on his own recognizance.
Oliphant challenged Suquamish tribal jurisdiction, arguing that tribal governments do not have the authority to prosecute crimes committed by non-Indian perpetrators. He appealed his case to the United States District Court for the Western District of Washington and was denied a writ of habeas corpus. He then appealed his case to the Ninth Circuit Court of appeals in Mark David Oliphant v. Edward Schlie (Oliphant v. Schlie), which also denied his request.
In Oliphant v. Schlie, the court issued a near unanimous ruling upholding Suquamish tribal jurisdiction over crimes committed on tribal land. To arrive at this conclusion, the court reviewed treaties and congressional acts and evaluated Oliphant’s argument on the basis of congressional trends, constitutionality, and practical considerations. It determined that no treaty or congressional act had extinguished the Suquamish’s inherent sovereign right to exercise criminal jurisdiction on their land. Further analysis revealed that strengthening tribal criminal justice systems was consistent with congressional trends toward supporting tribal communities and bolstering law and order in Indian country (the legal term for Indian reservations and other land within the boundaries of Indian communities). As a practical consideration, the court also noted that tribal criminal jurisdiction over non-Indians in Indian country was necessary for public safety, since federal institutions (the alternative to tribal police) were not designed for local law enforcement.
Oliphant then appealed his case to the United States Supreme Court in Mark Oliphant v. The Suquamish Indian Tribe. The issue before the court remained the extent to which an Indian tribe may exercise criminal jurisdiction over non-Indians for crimes committed on Indian land. There were a number of possible outcomes. The Court could take a broad approach and issue a ruling applicable to all federally recognized tribes unilaterally confirming or denying the right of criminal jurisdiction. Alternatively, the Court could issue a narrower ruling specific to jurisdiction in this particular case without applying it to all Indian tribes. Finally, it could have accepted the Suquamish tribe’s argument for a “subject matter jurisdiction test” that could ascertain which cases warranted tribal jurisdiction.
Ultimately, the Supreme Court opted for a unilateral holding overturning the lower courts’ rulings and prohibiting all Indian tribes from exercising criminal jurisdiction over non-Indians unless specifically authorized by Congress. Justice William Rehnquist authored the majority opinion (with Justices Stewart, White, Blackmun, Powell and Stevens concurring). To arrive at this conclusion, the Supreme Court rejected the Ninth Circuit Court’s analysis of treaties, congressional acts, congressional trends, and other factors.
The U.S. Supreme Court’s reasoning rested on a radically different notion of tribal sovereignty vis-à-vis the lower courts. The Ninth Circuit Court adhered to the longstanding legal principle that tribes maintain all of their rights as sovereign nations except those that have been specifically ceded via treaty or explicitly extinguished by Congress. And since the Suquamish had never relinquished criminal jurisdiction by treaty or by statute, and since maintaining law and order is sine qua non (essential and inherent) to political sovereignty, the Ninth Circuit Court rejected Oliphant’s claim. In contrast, the U.S. Supreme Court interpreted tribal sovereignty to exist to the extent of what was granted to tribes by Congress and via treaty. Since the Court could not supply a treaty or Congressional action that specifically conferred criminal jurisdiction upon the Suquamish, they assumed that it did not exist.
The Supreme Court’s radically different interpretation of tribal sovereignty was based in part on the assumption that tribes had no formal system of law and order until recently. As such, the Court reasoned that criminal jurisdiction could not have been assumed to be part of the tribe’s inherent sovereignty during the treaty-making process because at the time, a modern notion of criminal jurisdiction did not exist for Native People. The Court’s holding also rested on the argument that exercising criminal jurisdiction over non-Indians was inconsistent with their status as “domestic dependent nations” (political entities that are not fully sovereign due to their dependence on the United States).
The Supreme Court bolstered its argument by using primary documents to develop a doctrine of implicit divestment. Its rationale held that tribal rights could be implicitly terminated—even without explicit Congressional action—if those rights were deemed inconsistent with their status. As the majority opinion noted, “While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions” (Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 204).
Curiously, some of the primary documentation to support the doctrine of implicit divestment came from congressional testimony over policy that was debated but never became law, and from treaties that themselves specified tribal criminal jurisdiction over non-Indians. For example, the Court cited the 1786 Treaty with the Choctaws that states, “If any citizen of the United States … shall attempt to settle on any of the lands hereby allotted to the Indians to live and hunt on, such person shall forfeit the protection of the United States of America, and the Indians may punish him or not as they please.” While this language appears to confirm criminal jurisdiction for tribal governments, the Court used it to argue the opposite. Instead, the Court proffered that since these provisions became less prevalent over time, their gradual absence supported the doctrine of implicit divestment. Finally, while the Court’s analysis centered on developing an implicit understanding of Congressional intent during an historic era, it appeared to ignore the argument presented in both the Suquamish tribe’s brief and the opinion of the Ninth Circuit Court, that contemporary congressional policy was explicitly investing in tribal self-sufficiency and sovereignty.
Justice Thurgood Marshall authored the dissenting opinion with Chief Justice Warren Burger concurring. (Justice Brennan did not participate.) The dissent rested on the same argument as the lower court in Oliphant v. Schlie, that in the absence of explicitly ceding criminal jurisdiction over non-Indians, Indian tribes are assumed to maintain it.
Local criminal jurisdictional authority is a fundamental right in most American communities. Recognizing that justice is best meted out at the local level, most American cities are governed by municipal regulations that are policed by city law enforcement in accordance with state and federal law. With some exceptions, such was the case for tribal governments prior to Oliphant where most crimes perpetrated in Indian country fell under tribal criminal jurisdiction regardless of the racial identity or tribal membership of the perpetrator. Before Oliphant, non-Indians who committed crimes could expect to be arrested, tried, and convicted in tribal court under the doctrine of implied consent (the notion that one forfeits the jurisdiction of one entity and assumes the jurisdiction of another when crossing a border into a new state or country). After Oliphant, tribes retained the ability to prosecute crimes committed by Indians in Indian country but were prohibited from exerting jurisdiction over non-Indian perpetrators.
After Oliphant, state and federal entities were tasked with adjudicating all non-Indian perpetrated crime on tribal land. Unfortunately, state and federal governments generally failed to fulfill their new roles in Indian country law enforcement. As a result, crime in Indian country has steadily increased, and in some cases reached epidemic levels. This is especially true for offenses such as drug production and trafficking, assault, and other violent crimes. Of particular concern is the level of sexual assault and domestic violence perpetrated against Indian women by non-Indian men. The interracial aspect of this crime is a statistical anomaly in the United States and is partially explained by the climate of race-based impunity created under Oliphant.
Sidebar 1: Jurisdictional Authority for Crimes Committed in Indian Country* after Oliphant v. Suquamish
Indian Perpetrator |
Non-Indian Perpetrator |
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Indian Victim |
Tribe + Concurrent State or Federal† |
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Non-Indian Victim |
Tribe + Concurrent State or Federal† |
Exclusive State or Federal† |
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* Indian Country is defined as “all land within the limits of any Indian reservation under the jurisdiction of the United States government.” See 18 U.S.C. § 1151. † State jurisdiction is determined by Public Law 280 status. ‡ Unless the assault qualifies for Title IX exemptions for special domestic violence jurisdiction under the Violence Against Women Reauthorization Act of 2013. Note—In rare cases it is possible for the U.S. Military to also assert criminal jurisdiction. For example, see Lavetta Elk v. United States. No. 05-186L 2009. |
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Historically, American Indian nations exercised effective local jurisdiction over the people and activities on their land. Even after contact with Europeans, the inherent sovereignty of American Indian nations remained intact and acknowledged by alien governments. Article 1 of the Constitution of the United States recognizes American Indian political sovereignty, and the more than 400 treaties signed between Native nations and the United States reaffirm the sovereign status of American Indian nations. However, changing views of Native People in the context of 19th-century westward expansion led to steady encroachment into American Indian political sovereignty and criminal jurisdiction, ultimately paving the way for the Oliphant decision.
One of the earliest and most significant inroads to American Indian sovereignty was the 1831 U.S. Supreme Court case Cherokee Nation v. Georgia. Though Native nations were once viewed as pre and extra-Constitutional (existing both before the birth of the United States as a country, and independent from the sovereignty it draws from the Constitution), the ruling in this case instead deemed Native nations “domestic dependent nations.” As a result, the sovereignty of American Indian nations is now significantly limited in that they may no longer function as fully sovereign entities, but rather as distinct communities with limited political sovereignty under the supremacy of United States federal law. The Cherokee Nation case was foundational to the Oliphant decision, with the majority’s argument resting in large part on the status of American Indian nations as “domestic dependent nations.”
After Cherokee Nation, additional law and policy significantly limited tribal criminal jurisdictional authority in Indian country. The Major Crimes Act of 1885, 1953’s Public Law 280, and the Indian Civil Rights Act of 1968 limited the types of crimes that could be adjudicated in tribal court, transferred criminal jurisdiction over certain crimes to state governments, and limited tribal sentencing authority. The ruling in Oliphant builds on previous laws to further restrict tribal criminal jurisdiction by specifying race as a jurisdictional determinant.
As the result of Oliphant, Indian country is unique in that it is virtually the only place in the world in which a perpetrator can commit a crime in a community yet have no legal accountability to the local government. Coupled with other earlier laws limiting tribal jurisdiction, Oliphant creates an exceptional legal framework in which the location, type of crime, and the racial identity of perpetrator(s) and victim(s) must be determined in order to adjudicate crime. Under this schema, crimes committed by non-Indians against Indians are especially difficult to prosecute. Consequently, not only has Indian country crime increased in general, but crime perpetrated by non-Indians against Indians has also increased in particular.
Sidebar 2: Who Is An “Indian”? Congress’s “Duro Fix”
The ruling in Oliphant v. Suquamish held that Indian tribes lack criminal jurisdiction over non-Indians and instead limited their ability to adjudicate crime over “Indian” people only. However, the ruling did not specify who would be considered “Indian” for the purpose of criminal jurisdiction, leading to additional complications for law enforcement. This issue was at the heart of the 1990 U.S. Supreme Court case Duro v. Reina, in which Albert Duro allegedly killed a 14-year-old boy in the Salt River Pima Maricopa Indian Community. The Court ruled that though Duro was a member of the Torres-Martinez Desert Cahuilla Indians, he was not a member of the prosecuting tribe and was therefore immune to their jurisdiction. This ruling further limited tribal sovereignty in that it restricted tribal jurisdiction to crime committed by tribal members only. In response, Congress passed what is now known as the “Duro Fix,” which restored tribal criminal jurisdiction over all “Indians” regardless of membership with the adjudicating tribe. Despite the “Duro Fix,” ambiguity remains because federal, state, and tribal definitions of “Indian” vary significantly throughout the country. Thus, a definition of who an “Indian” is for the purposes of criminal jurisdiction under Oliphant remains unclear.
Notably, the Oliphant case itself is a clear example of the public safety challenges stemming from the Supreme Court’s ruling. Mark Oliphant was living on Indian land, attending an event hosted by an Indian community, and was arrested for allegedly assaulting an Indian member of that community. Yet, in Oliphant v. Suquamish, the Supreme Court ruled that as a non-Indian, Oliphant should have no criminal accountability to that Indian community. Prior to the alleged assault, the Suquamish tribe requested police support from the Bureau of Indian Affairs (the federal agency responsible for managing tribal land). This request was denied, leaving the Suquamish tribal police as the only law enforcement agency on duty during Oliphant’s alleged assault. And though the Supreme Court ruled that Oliphant’s case falls under federal jurisdiction, the federal government did not prosecute him. Here, the federal government failed in both policing and prosecution, thus allowing crime perpetrated by a non-Indian against an Indian to be met with impunity.
Tribal governments, state and federal legislators, and Native activists have pursued a variety of methods to address crime in Indian country in the wake of Oliphant, including strengthening tribal civil codes, advocating for better state and federal policing, promoting increased sovereignty drawn from treaty rights, and lobbying Congress for legislative changes. Significant progress was made along those lines in 2010 when President Obama signed the Tribal Law and Order Act (TLOA) into law. The TLOA is a federal law that addresses Indian country crime by increasing communication between law enforcement agencies, compiling federal declination and Indian country crime statistics, facilitating cross-deputization agreements, and increasing funding for tribal justice institutions. The law specifically upholds the Oliphant ruling, stating, “Nothing in this Act confers on an Indian tribe criminal jurisdiction over non-Indians” (25 U.S.C. 2801 § 206), and instead frames addressing jurisdictional challenges post-Oliphant through increased coordination among tribes, states, and the federal government.
To many, The TLOA represented significant progress in addressing crime in Indian country. However, many tribal advocates argued that it still did not do enough to address crime committed by non-Indian perpetrators, especially as it relates to epidemic levels of violence against Indian women. In response, Congress passed Title IX of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013). Title IX: Safety for Indian Women extends special tribal criminal jurisdiction over non-Indian perpetrators of dating violence, domestic violence, and violations of protection orders. Title IX applies to non-Indian perpetrators of said crimes who live or work on Indian land or are a “spouse, intimate partner, or dating partner” of an Indian on tribal land (Public Law 113–4 § 904).
Though limited in scope, Title IX has received serious criticism by some members of Congress and others who view it as a threat to non-Indian civil liberties. In contrast, Title IX has garnered praise from tribal governments and Indian people as a significant restoration and recognition of the sovereignty they have always possessed. Since its passage, several tribal governments have exercised special domestic violence jurisdiction under Title IX and have used it to arrest and prosecute non-Indian perpetrators.
Though Title IX’s significance is usually read in terms of its challenge to Oliphant, it is important to note that nothing in VAWA 2013 extends criminal jurisdiction over crimes like those allegedly perpetrated by Mark Oliphant. Even though he lived on the Port Madison Indian Reservation, his alleged assault of a tribal police officer was not domestic in nature and therefore would not fall under Title IX. Additionally, Title IX—rather than streamline Indian country jurisdiction—adds more layers to an already complex jurisdictional scheme that remains mostly intact. Per Title IX, in addition to the location of the crime, the type of crime, and the racial identities of the persons involved, law enforcement must also now factor the nature of the crime (domestic/non domestic) and the relationships between the perpetrator, the victim, and the tribal community in order to determine jurisdiction. However, despite this persistent complexity, it is clear that VAWA 2013 is a significant shift in federal Indian policy. Not only is it a legislative check on the anti-tribal sovereignty trend characteristic of the Rehnquist court, but it also significantly shifts the trajectory of federal Indian law toward meaningful investments in American Indian sovereignty.
Today, the ruling in Oliphant v. Suquamish remains one of the most significant events that have shaped American Indian history. Historically, it fundamentally altered the way that tribal sovereignty was viewed by the federal government, resulting in challenges to public safety in Indian country that persist to this day. In the face of these challenges, it also spurred advocacy from tribal governments, Indian people, and their allies to continue to invest in tribal sovereignty and ensure law and order in tribal communities. The result of that advocacy—notably the TLOA and VAWA 2013—has dramatically reshaped the trajectory of American Indian tribal sovereignty towards self-determination for Indian nations.
Biography
Sarah Deer (1972–)
Sarah Deer is a citizen of the Muscogee (Creek) Nation and is one of the most influential figures in the modern anti-violence movement for Native women, especially as it relates to law and policy. Deer is a lawyer, author, activist, and law professor at William Mitchell College of Law in St. Paul, Minnesota. In 2014, she was awarded the prestigious MacArthur Fellowship for her work in tribal justice and anti-violence advocacy. Her work has resulted in some of the most significant changes in federal Indian policy in recent history. Today, she continues to advocate for tribal governments and American Indian women.
Since receiving her law degree from the University of Kansas, Deer has published extensively in both tribal law and federal Indian policy. Her work traces the impact of American colonization on traditional indigenous justice systems, and challenges the way that federal Indian policy has divested American Indian governments of political sovereignty. Deer incorporates gender into her analysis, comparing the experience of Native women under traditional tribal justice systems to their experience within the modern American justice system. In doing so, her work highlights the way that American law and federal Indian policy have shaped the epidemic levels of violence against Native women in Indian country. As such, she advocates for a survivor-centered model of justice within a context of reinvigorating tribal sovereignty, expanding tribal criminal jurisdiction, and reforming federal Indian law.
The outcome of Oliphant v. Suquamish figures prominently in Sarah Deer’s work. Deer situates the case as one of many that divested tribal nations of their inherent sovereignty and produced a jurisdictional structure that creates a public safety crisis in Indian country. Her analysis of Oliphant illustrates the way that an already complex jurisdictional structure has been racialized, creating a climate of race-based impunity for non-Indian criminals. This, she notes, is particularly gendered in that Oliphant disproportionately affects Native women targeted by non-Native men.
Sarah Deer was instrumental in data collection and analysis for Amnesty International’s groundbreaking 2007 report Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA. As a co-author of the project, Deer collected data from all over the nation to reveal the complex nature of jurisdiction in Indian country and the way that it impacts Native women. Through statistical data, interviews, and legal analysis, Deer and her colleagues revolutionized the discourse on violence against Native women by framing it as an international human rights issue. In doing so, Deer was instrumental in garnering national and international attention to an issue relatively unknown outside of the Native community.
After Maze of Injustice, Deer continued to advocate for anti-violence strategies in Indian country. She testified before Congress and authored additional publications demonstrating the need to revitalize tribal justice systems in order to combat epidemic levels of violence against Native women. Her work on Maze of Injustice and subsequent activism directly led to significant changes in federal Indian policy through the Tribal Law and Order Act of 2010 (TLOA) and the Violence Against Women Reauthorization Act of 2013 (VAWA 2013).
The TLOA invests in American Indian sovereignty to increase tribal sentencing authority, improve services for American Indian women, develop federal accountability to American Indian governments and citizens, coordinate policing between multiple agencies, and bolster funding to tribal governments to help maintain law and order. As a result, tribal governments have more resources to adjudicate crime in their communities and hold the federal government accountable to its responsibility to protect Native women.
The passage of the TLOA was hailed as a major victory for Native women and Indian country communities. However, it failed to fully address the jurisdictional complications identified in Maze of Injustice and did nothing to address the outcome of Oliphant v. Suquamish. As such, Deer continued to lobby Congress and was instrumental in the passage of VAWA 2013.
VAWA 2013 builds on The TLOA by expanding tribal jurisdiction over non-Indian perpetrators for some of the most common crimes committed against Native women. In doing so, it challenges the Supreme Court’s ruling in Oliphant and addresses public safety in Indian country by re-investing in tribal sovereignty.
The impact of Sarah Deer’s work is broad and far-reaching. Deer has radically redirected federal Indian policy and advocated for Native women in the context of re-Indigenizing tribal law. In her moving essay “What She Says, It Be Law,” Deer discusses her own tribe’s traditional law as it relates to jurisdiction and violence against Native women. Deer points out that, unlike the modern justice system, the Muscogee (Creek) Nation traditionally shaped law around the experience of the survivor and her vision of justice. As such, she pushes the boundaries of what “justice” means for Native women and tribal governments in order to shape a more vibrant future for Native People as a whole. (See also Deer’s biography in Tribal Law and Order Act, 2010.)
DOCUMENT EXCERPTS
The Suquamish Indian tribe’s Legal Brief
The following is an excerpt from the Suquamish Indian tribe’s legal brief submitted to the Ninth Circuit Court of Appeals. The brief outlines details of the alleged incident involving Mark Oliphant as well as the Suquamish tribe’s argument for criminal jurisdiction over non-Indians.
Appellant was arrested at approximately 4:30 A.M. The only law enforcement officers available to deal with the situation were tribal deputies. Without the exercise of jurisdiction by the tribe and its courts, there could have been no law enforcement whatsoever on the Reservation during this major gathering which clearly created a potentially dangerous situation with regard to law enforcement. Public safety is an underpinning of a political entity. If tribal members cannot protect themselves from offenders, there will be powerful motivation for such tribal members to leave the Reservation, thereby counteracting the express Congressional policy of improving the quality of Reservation life […]
Federal law is not designed to cover the range of conduct normally regulated by local governments. Minor offenses committed by non-Indians within Indian reservations frequently go unpunished and thus unregulated. Federal prosecutors are reluctant to institute federal proceedings against non- Indians for minor offenses in courts in which the dockets are already overcrowded, where litigation will involve burdensome travel to witnesses and investigative personnel, and where the case will most probably result in a small fine or perhaps a suspended sentence. Prosecutors in counties adjoining Indian reservations are reluctant to prosecute non-Indians for minor offenses where limitations on state process within Indian country may make witnesses difficult to obtain, where the jurisdictional division between federal, state and tribal governments over the offense is not clear, and where the peace and dignity of the government affected is not his own but that of the Indian tribe […]
Traffic offenses, trespasses, violations of tribal hunting and fishing regulations, disorderly conduct, and even petty larcenies and simple assaults committed by non-Indians go unpunished. The dignity of the tribal government suffers in the eyes of Indian and non-Indian alike, and a tendency toward lawless behavior necessarily follows.
Source: Suquamish Tribal Brief, pp. 27–28, as quoted in Oliphant v Schlie, 544 F.2d 1007 (Ninth Circuit 1976): 9, 10.
The Ninth Circuit Court’s Ruling in Oliphant v. Schlie (1976)
Below are excerpts from Ninth Circuit Court’s ruling in Oliphant v. Schlie. The decision relies on the assumption that tribes maintain all of their rights as sovereign nations unless those rights have been specifically ceded via treaty or explicitly extinguished by Congress.
Oliphant argues that the Suquamish have no jurisdiction over non-Indians because Congress never conferred such jurisdiction on them. This misstates the problem. The proper approach to the question of tribal criminal jurisdiction is to ask “first, what the original sovereign powers of the tribes were, and, then, how far and in what respects these powers have been limited” […]”It must always be remembered that the various Indian tribes were once independent and sovereign nations …” […] who, though conquered and dependent, retain those powers of autonomous states that are neither inconsistent with their status nor expressly terminated by Congress […]
The question is not whether Congress has conferred jurisdiction upon the tribe. The tribe, before it was conquered, had jurisdiction, as any independent nation does. The question therefore is, did Congress (or a treaty) take that jurisdiction away? The dissent points to no action by the Congress, and no treaty language, depriving the tribe of jurisdiction […]
Surely the power to preserve order on the reservation, when necessary by punishing those who violate tribal law, is a sine qua non of the sovereignty that the Suquamish originally possessed.
Source: Oliphant v. Schlie, 544 F.2d 1007 (Ninth Circuit 1976): 1, 3.
Circuit Judge Kennedy’s Dissenting Opinion in Oliphant v. Schlie (1976)
Below are excerpts from Ninth Circuit Court Judge Anthony Kennedy’s dissenting opinion in Oliphant v. Schlie. Kennedy’s dissent challenged the notion of inherent criminal jurisdiction proffered in the majority decision. He would later become an associate Justice of the Supreme Court of the United States under President Ronald Reagan.
The concept of sovereignty applicable to Indian tribes need not include the power to prosecute nonmembers. This power, unlike the ability to maintain law and order on the reservation and to exclude undesirable nonmembers, is not essential to the tribe’s identity or its self-governing status. […] Therefore I do not find the doctrine of tribal sovereignty analytically helpful in this context and instead find it necessary to look directly at the applicable legislation to determine whether Congress intended the tribal courts to have the power to exercise jurisdiction over nonmembers […]
I am persuaded that Indian tribal courts were not intended to have jurisdiction over non- Indians. Although Congress has never explicitly so provided, it has repeatedly acted in accord with this premise. Unlike the majority, I would not require an express congressional withdrawal of jurisdiction. A presumption in favor of any inherent, general jurisdiction for tribal courts is wholly inconsistent with the juridical relations between the federal government and the Indian tribes that has existed for the past 100 years. Viewing tribal courts in their historical and cultural context, in light of the fact that virtually no white man appears to have been tried by an Indian tribunal in the past century, congressional silence on this point can hardly be viewed as assent.
Source: Oliphant v. Schlie, 544 F.2d 1007 (Ninth Circuit 1976): 12, 19.
Justice Rehnquist’s Majority Opinion in Oliphant v. Suquamish (1978)
Below are excerpts from the majority opinion in Oliphant v. Suquamish, authored by Justice William Rehnquist. Rehnquist was joined by Justices Stewart, White, Blackmun, Powell, and Stevens.
While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions […]
By themselves, these treaty provisions would probably not be sufficient to remove criminal jurisdiction over non-Indians if the tribe otherwise retained such jurisdiction. But an examination of our earlier precedents satisfies us that, even ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress. Indian tribes do retain elements of “quasi-sovereign” authority after ceding their lands to the United States and announcing their dependence on the Federal Government […] But the tribes’ retained powers are not such that they are limited only by specific restrictions in treaties or congressional enactments […]
By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. This principle would have been obvious a century ago when most Indian tribes were characterized by a “want of fixed laws [and] of competent tribunals of justice.” H.R. Rep. No. 474, 23d Cong., 1st Sess., 18 (1834). It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents. […]
We recognize that some Indian tribal court systems have become increasingly sophisticated, and resemble in many respects their state counterparts. We also acknowledge that, with the passage of the Indian Civil Rights Act of 1968, which extends certain basic procedural rights to anyone tried in Indian tribal court, many of the dangers that might have accompanied the exercise by tribal courts of criminal jurisdiction over non-Indians only a few decades ago have disappeared. Finally, we are not unaware of the prevalence of non-Indian crime on today’s reservations which the tribes forcefully argue requires the ability to try non- Indians […] But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians. They have little relevance to the principles which lead us to conclude that Indian tribes do not have inherent jurisdiction to try and to punish non-Indians. The judgments below are therefore Reversed.
Source: Oliphant v Suquamish Indian Tribe, 435 U.S. 191 (1978): 205, 209, 211–13.
Justice Marshall’s Dissenting Opinion in Oliphant v. Suquamish (1978)
The following is Justice Thurgood Marshall’s dissenting opinion in Oliphant v. Suquamish. Marshall’s reasoning is congruent with the rationale of the Ninth Circuit Court of Appeals. Chief Justice Burger joined Marshall in dissent. Justice Brennan did not participate.
I agree with the court below that the “power to preserve order on the reservation … is a sine qua non of the sovereignty that the Suquamish originally possessed” […] In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation. Accordingly, I dissent.
Source: Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978): 213.
See also: Tribal Law and Order Act, 2010; Violence Against Women Act, Title IX: Safety for Indian Women, 2013
Further Reading
Amnesty International. Maze of Injustice: The Failure to Protect Indigenous Women From Sexual Violence in the USA. New York: Amnesty International Publications, 2007.
Barker, Joanne, ed. Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination. Lincoln, NE: University of Nebraska Press, 2005.
Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
Deer, Sarah. “What She Say, It Be Law.” Mending the Sacred Hoop Newsletter. 4.2 (2000): 1.
Deer, Sarah. “Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law.” Suffolk University Law Review 38 (2005): 459.
Deer, Sarah and Carrie E. Garrow. Tribal Criminal Law and Procedure. New York: Altamira Press, 2007.
Goldberg, Carole, Kevin K. Washburn, and Philip P. Frickey, eds. Indian Law Stories. St. Paul: Foundation Press, 2011.
Indian Country Defined. 18 U.S.C. § 1151.
Johnson, Steven. “Jurisdiction: Criminal Jurisdiction and Enforcement Problems on Indian Reservations in the Wake of Oliphant.” American Indian Law Review 7.2 (1979): 291–317.
Lavetta Elk v. United States. No. 05-186L (U.S. Court of Federal Claims, 2009).
Oliphant v. Schlie, 544 F.2d 1007 (Ninth Circuit 1976).
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
Pevar, Stephen L. The Rights of Indians and tribes. Oxford, UK: Oxford University Press, 2012.
Tribal Law and Order Act of 2010 P.L. 111–211, 25 U.S.C. 2801.
Violence Against Women Reauthorization Act of 2013 P.L. 113–14.
Worcester v. Georgia, 31 U.S. 515 (1832).
Indian Child Welfare Act of 1978
Azusa Ono
Chronology
Introduction
The Indian Child Welfare Act of 1978 (ICWA, P.L.95–608) is a law that seeks to ensure the survival of tribal cultures and traditions through tribal jurisdiction. The law arose in response to the destructive practices of the public and private welfare systems that removed Native American children from their families and tribal communities. Senator James Abourezk of South Dakota first introduced the bill on August 27, 1976, and President Jimmy Carter signed it in 1978. The act:
Congress also appropriated $5.5 million for tribes to operate family-development centers in an effort to strengthen family life and prevent separation of Indian children from their families.
Removal of Indian Children Prior to ICWA
Adoption of Native American children by non-Native families is a part of a long-lasting assimilationist policy that the federal government had embraced since the foundation of the nation. Before the removal of Indian children through adoption and foster care, the federal government and interested non-Indian organizations and religious groups had removed, often forcibly, Indian children to make them attend boarding schools. By the end of 19th century, boarding schools became the only option for a lot of Indian families to provide adequate housing, clothing, food, and education, a pattern that persisted throughout the 20th century. Given limited choices, more parents became willing to send children to off-reservation boarding schools, hoping they would provide a better life for their children.
The first off-reservation boarding school, the Carlisle Indian School in Pennsylvania, opened its doors in 1879. Its founder, Richard Henry Pratt, believed that the boarding schools would successfully “Kill the Indian and save the man.” Pratt’s philosophy persisted when the wholesale Indian adoption program started in 1958.
1958–67 Indian Adoption Project (IAP)
Between 1958 and 1967, the Child Welfare League of America (CWLA) contracted with the BIA to promote the adoption of Indian children with non-Indian foster families. This is a unique example of U.S. public policy whereby the federal government transferred children of one race to families of another race.
The IAP director Arnold Lyslo had spent a lot of time working on public relations to win support for his adoption project from the general public. He characterized the adoption of Indian children as a benevolent act that would help unwed Indian mothers who had to ask for assistance from their extended families. To convince social workers in the field that adoption of Indian children was successful, Lyslo published articles in Child Welfare, a journal whose primary audience was in the field of social work. Lyslo characterized Native children as “forgotten” youth who were “unloved and uncared for on the reservation” (“Adoptive Placement,” 4).
The IAP had three major objectives. First, it sought to prove that Indian children were adoptable. Second, it wanted to expand from a pilot program, which would place 50 to 100 children, to a large-scale permanent, national plan. Finally, it conducted research based on the earlier placement process, the outcome of which was Robert Fanshel’s Far from the Reservation: The Transracial Adoption of American Indian Children (1972).
To be eligible for IAP, Indian children, family, and the court system needed to meet the specific criteria. Children had to have at least one-quarter of Indian blood and be physically and mentally capable of benefitting from adoption. Second, the birth parent(s) must have decided to relinquish the child after casework and counseling because it was best for the child. Third, if the child was forcibly removed from home for abandonment or neglect, the jurisdiction of state courts, not tribal courts, had to be clear enough to ensure that the child was legally free for adoption (Lyslo, “Background,” 40).
During its first year of operation, IAP operated on 13 reservations in five states (Arizona, Montana, Nevada, North Carolina, and South Dakota). Of these five states, South Dakota and Arizona had the most active IAP operation. During its nine-year existence, IAP coordinated the adoption of 395 Native American children. Children mostly from reservations in the Western and Midwestern states were adopted by non-Indian families in the Eastern and Midwestern states. In 1967, for instance, out of 119 Indian children adopted through IAP, 41 came from Arizona, and 24 from South Dakota. Meanwhile, the largest number of non-Indian adopting families resided in Massachusetts (16) followed by Indiana (14), Illinois (13), New York (13), and New Jersey (11) (Department of Interior News Release, March 24, 1968).
IAP developed as a part of the “termination” policy, which aimed for withdrawal of the federal government’s trust relationship with Indian tribes. Supporters of termination policy argued that adoption of Indian children by non-Indian families was more cost-effective than placing the children in government-funded boarding schools.
The termination policy advanced with the adoption of House Concurrent Resolution 108, followed in 1953 by the passage of PL280. The resolution declared that transfer of the Indian child welfare cases to state systems would save the BIA money. Supporters of termination and IAP also contended that adoption by non-Native private families also meant that Indian children would no longer require federal or state support once adopted by a middle-class non-Native family. For Native Americans, on the other hand, the adoption of their children was another example of government policies of individual “termination” and assimilation.
PL280 aimed the transfer of most of civil and criminal jurisdiction as well as social services from the federal government and local tribe to the state where the reservation was located. By making Indian people eligible for state-administered services, including public assistance and child welfare service, the act sought elimination of the federal government’s responsibility over tribes. States that accepted the PL-280 policies first included California, Minnesota (except for the Red Lake Chippewa Reservation), Nebraska, Oregon (except for the Warm Springs Reservation), Wisconsin, and Alaska (upon statehood). Later Arizona, Florida, Idaho, Iowa, Montana, Nevada, Utah, North Dakota, South Dakota, and Washington became PL 280 states.
In 2001, Shay Bilchik, the executive director of the CWLA, formally apologized for the excesses of the IAP at a meeting of the National Indian Child Welfare Association. He put the CWLA on record in support of the Indian Child Welfare Act. Said Bilchik, “No matter how well intentioned and how squarely in the mainstream this was at the time, it was wrong; it was hurtful; and it reflected a kind of bias that surfaces feelings of shame” (NICWA website).
The Adoption Resource Exchange of North America (ARENA)
The Adoption Resource Exchange of North America (ARENA) took shape in mid-1967 and began full operation by early 1968 under the direction of Clara Swan. It started as a three-year demonstration project in CWLA funded by the HEW, the American Contract Bridge Association, and the BIA. By 1977, almost 800 Native children had been placed through these programs.
ARENA sought to develop the First National adoption resource exchange to effectively find homes for “hard-to-place children.” Indian children were considered such children who were characterized as of minority race, children with physical or mental disabilities, older children, or part of larger sibling groups. Distribution of Indian youth among the ARENA-identified families proved to be extremely high. For instance, in 1971, 95 children out of 249 ARENA-placed adoptees were Native.
In the early 1970s, CWLA emphasized identification of homes for Native children within their culture. In reality, the vast majority of Native youth were adopted by non-Native (mostly Caucasian) families. Behind this trend existed the “shortage” of so-called “blue-ribbon” (blond, blue-eyed, and visibly “white”) babies. The 1970s witnessed the introduction of birth control, increased wage work opportunities for women, and the 1973 legalization of abortion. Women of all ethnic groups enjoyed more reproductive rights, including the means to avoid pregnancy and to choose options other than placing their babies for adoption. This perceived “shortage” led to the popularity of Native American children for adoption as well as an increased interest in overseas adoption.
Statistics on Removal of Indian Children
The American Association of Indian Affairs report published of 1969 declared the Indian adoption situation as a crisis. It revealed that an extremely high rate of removal (25–35 percent) of all Native children were removed from their homes and placed into foster care, adoption homes, or institutions. In Minnesota, one in every four Indian children under the age of one year had been adopted between 1971 and 1972 (Byler, 1).
In addition to the adoption, foster care, and institutionalization, many Indian children lived in BIA-operated facilities. In 1971, 34,538 Indian children stayed in the Bureau’s residential facilities rather than at home (Byler, 1). Among the Navajos, approximately 20,000 children or 90 percent of the BIA school population in grades K–12 lived at boarding schools (Byler, 2).
A majority of those children living in foster care did so with non-Indian families. A 1969 survey of 16 states found that 85 percent of all children in foster care did not reside with Indian families (Byler, 2). They and their parents also faced discriminatory standards for foster care, based on American middle-class values. Due to the widely shared ideology that appreciated middle-class nuclear family orientation over the extended family orientation of Indian families, it was almost impossible for Indian families to be qualified as foster families (Byler, 4).
Campaign for ICWA
The Devils Lake Sioux of Fort Totten, North Dakota, were among the first groups to voice resistance to ongoing removal of Indian children from their tribal communities, subsequent to their placement with non-Indian foster care and/or adoption (Jacobs, 98). In 1968, the concerned women of the Fort Totten reservation asked for the AAIA’s assistance and sent delegates to Washington, D.C., to lobby Congress. The AAIA’s study on the Devils Lake Sioux declared that out of 1,100 young people under the age of 21, 275 (25 percent of the total) had been separated from their families (Jacobs, 101).
During the 1978 Congressional hearings, a number of Indian activists, advocates, tribal government officials, social workers, and parents testified in support of the Indian Child Welfare Act. Many pointed out that child welfare workers neither understood nor supported Native cultures and their childrearing traditions. This failure to respect Native American culture had emphasized child removal instead of integrated services to support and sustain Indian communities.
Witnesses also testified that welfare agencies rarely made an effort to make an early intervention, provide alternatives to out-of-home placement, or offer support for family and children to prevent the removal process. Federal or state agency personnel who had little or no knowledge of Indian culture or child-rearing practices, or who had poor training in dealing with Indian child welfare, nonetheless made decisions about removal. Indian youth often would be taken away without any court order or due process (Mindell and Gurwitt, 63). Non-Indian social workers would visit family’s homes and convince the Indian mothers to relinquish their children, claiming that they would be better served with non-Indian adoptees. As Senator Abourezk stated in 1977, “public and private welfare agencies seem to have operated on the premise that most Indian children would really better off growing up non-Indian” (ICWA Hearing, 1977, 1). When faced with the loss of their children, Indian parents and families had little choice but to accept the judgment of government personnel, even if it was far from ideal as they rarely understood their parental rights or means of redress. Those parents who opposed this policy in court often failed to locate an advocate to represent their interests (Mindell and Gurwitt, 63).
Proponents of the ICWA also claimed that adoption of Indian children by non-Indian families separated them from tribal heritage. Instead, they demanded a transition from a system based on acculturation to mainstream values to one that emphasized Indian self-determination.
Psychiatrists also became concerned about the impact of institutionalization and adoption of Indian children by non-Indian families. The American Academy of Child Psychiatry (AACP) established a Committee on the American Indian Child in 1973 and collaborated with AAIA in their effort to pass the welfare act. During the hearings, psychiatrists testified that foster care and adoption by non-Indian families placed undue burdens impact on Indian children, especially in their adolescent years. A representative of the Academy claimed in a hearing on January 25, 1975: “There is much clinical evidence to suggest that there Native American children placed in off-reservation non-Indian homes are at risk in their later development. Often enough they are cared for by devoted and well-intended foster or adoptive parents. Nonetheless, particularly in adolescence, they are subject to ethnic confusion and a pervasive sense of abandonment with its attendant multiple ramifications” (ICWA Hearing 1977, 114). Indian children’s out-of-home experiences for extended periods of time seriously impaired their ability as parents, and transferred the problem to future generations.
Opponents of the welfare act came from the federal government agencies. The Departments of Interior, Health, Education and Welfare (HEW), and Justice, and the Office of Management and Budget (OMB) expressed disapproval of the bill. The BIA and the HEW saw no need for the ICWA, preferring an amendment to the Social Security Act to accomplish the goal. Private groups actively involved in the removal and placement of Indian children with non-Indian families, such as the CWLA, also spoke in opposition. The Church of Jesus Christ of Latter Day Saints believed that the ICWA would interfere with its Student Placement Program in which over 2,500 Indian youth (almost 5,000 at its peak in 1972) were taken into Mormon homes. These groups argued that the welfare act represented “reverse” racial discrimination by requiring that Indian children be placed only with Indian families.
The campaign for passage in the 1970s of the ICWA became part of a larger quest for Indian self-determination and sovereignty. The Red Power movement had employed more confrontational and militant tactics, as seen with the occupation of Alcatraz Island in San Francisco Bay in 1969, and the takeover in 1973 of Wounded Knee, South Dakota. The campaign for the welfare act was less visible to the general public. Grassroots activism included passage of tribal resolutions, revision of legal codes, and development of social service programs (Jacobs, 119). Such initiatives drew less media coverage than the more radical events staged by the American Indian Movement (AIM) and the National Indian Youth Council (NIYC).
Misunderstanding and Inappropriate Interpretation of Indian Parents’ Behavior
Among those Indian children placed for adoption, very few children were removed due to physical abuse. According to a study conducted in North Dakota and in the Northwest, in 99 percent of all cases, the adoption process resulted from charges of neglect, social deprivation, and emotional damage of children living with their parents (Byler, 2). Indian parents, observing the removal of their children, could engage in poor parental behavior and avoidance of emotional attachments to their youth.
Child welfare officials also could be insensitive to traditional Indian child rearing practices where the extended family offered significant child care. Non-Indian social workers and authorities often perceived the willingness of an Indian mother or father to allow a child to live with a relative as a sign of abandonment. Relatives, such as aunts, uncles, and grandparents, often were the primary source for child abuse prevention in Indian communities.
Compounding this situation was a traditional Native belief that children are gifts from the Creator, instead of parents’ property. Members of extended families often showed extraordinary patience and tolerance toward the young, emphasizing children’s self-discipline. Therefore, children were usually brought up without restraint or severe physical punishment. This alternative to close parental supervision and physical punishment by Indian parents was viewed as indications of parental neglect (ICWA Hearing 1974, 103).
Challenges after the ICWA
Advocates of the Indian Child Welfare Act won their battle with the passage in 1978 of the legislation. Yet, challenges arose to hinder application of the law. Funding for tribal foster care and adoption services has been always a problem, as Title II of the ICWA provides only a small grant program for tribes. The largest share of funding is administered by the Department of Health and Human Services (HHS) under the provisions of the Social Security Act. Title IV-B of that law allows tribes to have access to funds to support their child welfare services. This also became the only monitoring tool available to the federal government for examination of state ICWA compliance.
Another major issue in the application of the welfare act is the development of “existing Indian family exception” (also known as “Indian family exception doctrine” or “the Indian family doctrine”) The “existing Indian family exception” doctrine arose from a judge’s opinion that bars application of the ICWA when neither the child nor the child’s parents have not retained a significant social, cultural, or political relationship with his tribe (Atwood, 204).
In 2013, the “Baby Veronica” case (Adoptive Couple v. Baby Girl) made national headlines as a custody battle was fought between the adoptive parents of an Indian child and her biological father. As seen here, protests supporting the biological father occurred outside of the courthouse. The Indian Child Welfare Act of 1978 was cited by both parties in the legal proceedings, with the courts ultimately ruling that the adoptive parents would gain custody. (AP Photo/Sue Ogrocki)
This exception was first used in 1982, when the Kansas Supreme Court decided in the case of Adoption of Baby Boy L. (231 Kan. 199). When an unwed non-Indian mother tried to voluntarily place her son for adoption with a non-Indian adoptive family, the Indian father and his tribe objected it. The court supported the adoption, arguing that the ICWA would not apply in this case, as no family had existed before adoption (Atwood, 205). Since the first implementation of this exemption, a number of courts have used it to protect non-Indian adoptive family’s interests including the 2013 U.S. Supreme Court case of Adoptive Couple v. Baby Girl.
Biography of Notable Figure
Evelyn Lance Blanchard (1938–) is a Laguna Pueblo and Pascua Yaqui social worker and Indian activist. She was an important proponent of the welfare act and had been called the “Mother of ICWA” (Johnson, 149). She received a B.A. in sociology from the University of New Mexico in 1962 and a master’s degree in social work from the University of Denver in 1969. In 2010, she submitted to the UNM American Studies Department her dissertation entitled “To Prevent the Breakup of the Indian Family: The Development of Indian Child Welfare Act of 1978.” Her passion for the fight against the unfair removal of Indian child from their family and community comes from her own family’s generational history of child removal and institutionalization. Her father was taken from his home in Laguna, New Mexico, to attend Carlisle Indian School in Pennsylvania. Blanchard herself was removed from her parents in her teenage years (Johnson, 155; Jacobs, 111–12).
Sidebar 1: Supreme Court Decision Related to ICWA, 1989 Mississippi Band of Choctaw Indians v. Holyfield (490 U.S. 30, 1989)
Jennie Bell, a member of the Mississippi Band of Choctaw Indians, was a 24-year-old single mother of two when she became pregnant with twins by a Choctaw man who was married to another woman, and who had two children of his own. Upon deciding to place her twins for adoption, Jennie Bell left the reservation to give birth. She immediately put her twins up for adoption with a non-Indian couple: Orrey Curtiss Holyfield, a Methodist minister, and his wife, Vivian Joan. They had been looking for a child to adopt, but had encountered difficulties in locating one, partially because of their advanced age (Orrey, 60 years old, and Vivian, 44 years old) and Orrey’s poor health.
The issue in this case was whether the tribal jurisdiction extends to an Indian child whose mother gave birth off-reservation. The U.S. Supreme Court held that as both biological parents lived on a reservation, tribal courts had jurisdiction over the children even though they had been born off-reservation. The tribal court, also considering the psychological attachment of children to the adoptive parents, ruled that the twins could stay with the Holyfields. The decision reinforced tribal jurisdiction over child custody cases of tribal members.
When the hearings on the ICWA began in 1974, Blanchard served as an assistant area social worker in the BIA Albuquerque Area Office. At the 1974 hearing, she submitted a statement making it clear that she was not representing the BIA, even though she was an agency employee. Blanchard saw an urgent need for hiring more Indian social workers who understood the tribal culture. She stated, “The only solution is in providing competent social workers who are given the funds to work within the community. We must be allowed to develop programs and facilities on the reservation which will enable the child who has to be removed from the home, the source of his distress, to develop not according to the norms and mores of the outside but according to his or her own needs and the prevailing conditions and precepts of his or her tribe. Emphasis must be placed on keeping children with their own or substitute families” (ICWA Hearing 1974, 216).
Sidebar 2: ICWA Supreme Court Decision Related to ICWA, 2013 Adoptive Couple v. Baby Girl (the Baby Veronica case)
Baby Veronica was born to Christy Maldonado, a non-Native mother, and Dusten Brown, a member of Cherokee Nation and an Iraq war veteran. While Maldonado was still pregnant, her relationship with Brown ended, and she decided to put her child up for adoption. The non-Indian adoptive couple, Matt and Melanie Capobianco, supported Maldonado during her pregnancy and attended the delivery. Four months after Veronica’s birth, the adoptive couple served Brown with a notice of pending adoption. He signed papers stating that he was “not contesting the adoption,” only to contact a lawyer one day later to seek custody of his infant daughter.
In September 2011, the South Carolina Family Court and South Carolina Supreme Court awarded custody of Veronica to Brown, the biological father. The courts held that the adoptive family had failed to prove that the biological father’s custody would cause harm to the child, and that they sought to provide preventive measures to avoid the adoption of the child by a non-Native family. After this decision, the Capobiancos released Veronica to her biological father, who lived in Oklahoma.
The Capobiancos and their supporters appealed the case to the U.S. Supreme Court, arguing that the ICWA ignored the best interests of children. In June 2013, the Court overturned the state courts’ decisions in a 5–4 ruling. The court held that provisions that barred the termination of the biological father’s parental right never applied to him as he had never known or had custody over the child before her adoption.
Following the Supreme Court decision, in September 2013, Dusten Brown unwillingly gave up his daughter to the Capobiancos after fighting the order for few months. The Cherokee Nation also dropped the case. The case drew national media attention, especially after Dr. Phil, a daytime television talk show, had highlighted the adoption issue on October 18, 2012, eight months before the Supreme Court decision.
Blanchard would take a leave from the BIA in New Mexico and move in the mid-1970s to the Pacific Northwest to provide assistance to the tribes in Washington state who sought to change the state’s administrative codes related to Indian child welfare (Jacobs, 109, 131). She has held a number of leading positions in the area of social work, including the program director of the National Center for American Indian and Alaskan Native Mental Health Research and Development (Whitecloud Center) in Portland, Oregon. Blanchard also has been secretary of the Association of American Indian and Alaska Native Social Workers.
Before the passage of the welfare act, Indian activists, the Association of American Indian Affairs, and their supporters worked with individual states to change the state codes to adopt the new policy of Indian self-determination for child welfare. Blanchard contributed to the transformation of the Washington State’s codes related to Indian child welfare. In 1976, Washington State included new regulations that gave tribes greater involvement in the placement of their youth (Jacobs, 131).
The CWLA and ARENA understood the best interest of Indian child as to find a permanent home rather than staying within the tribal community, and emphasized permanency and saving Indian children over the preservation and strengthening of Indian families. (Jacobs, 151–52) In an article entitled “Question of Best Interest,” Blanchard objected to such a position and claimed, “How the courts define ‘best interest’ negates the right of an Indian person to look for strength and assistance from his tribal identity by denying it as a resource, keeps the Indian parent, child and tribe in a dependent position in this era of self-determination and individual rights, and effectively kills more Indian people through the smothering arms of the helping process” (Blanchard, 60).
The passage of the ICWA occurred because of tireless work and the efforts of Indian activists and social workers like Blanchard, who have dealt with the issue of Indian child welfare on a constant basis. They knew only too well about the problems confronting Indian children, families, and tribes. The welfare act strengthened the ideal of Indian self-determination, as Blanchard claimed that “Indian tribes and communities can manage their own affairs” (Blanchard, 1977, 42).
DOCUMENT EXCERPTS
Before the passage of ICWA, numerous Indian witnesses testified before Congress in support of the act. One of the main arguments that advocates of ICWA made was that the removal of Indian children from their home and tribal community undermined the group rights and sovereignty of Indian tribes and nations as well as threatening the survival of tribal traditions and cultures. Here Calvin Issac, tribal chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen’s Association, testifies as to the importance of Indian children in preservation of Indian cultures and traditions, calling them “the only real means for the transmission of the tribal heritage.”
Testimony by Calvin Issac, Tribal Chief of the Mississippi Band of Choctaw Indians and a Member of the National Tribal Chairmen’s Association, before the House of Representatives Subcommittee on Indian Affairs and Public Lands, S.1214, The Indian Child Welfare Act, February 9, 1978.
I testified before the Senate Select Committee on Indian Affairs last year on the importance to the Indian tribal future of federal support for tribally controlled educational programs and institutions. I do not wish to amend anything I said then, but I do want to say that the issue we address today is even more basic than education in many ways. If Indian communities continue to lose their children to the general society through adoptive and foster care placements at the alarming rates of the recent past, if Indian families continue to be disrespected and their parental capacities challenged by non-Indian social agencies as vigorously as they have in the past, then education, the tribe, Indian culture have little meaning or future. This is why NTCA supports S. l2l4, the Indian Child Welfare Act.
Our concern is the threat to traditional Indian culture which lies in the incredibly insensitive and oftentimes hostile removal of Indian children from their homes and their placement in non-Indian settings under color of state and federal authority. Individual child and parental rights are ignored, and tribal governments, which are legitimately interested in the welfare of their people, have little or no part in this shocking outflow of children.
The problem exists both among reservation Indians and Indians living off the reservation in urban communities: an inordinately high percentage of our Indian children are separated from their natural parents and placed in foster homes, adoptive homes, or various kinds of institutions, including boarding schools. The rate of separation is much higher among Indians than in non-Indian communities. In l976 Task Force Four of the Policy Review Commission reported Indian adoption and foster care placement statistics for 19 states. Of some 333,650 Indians in those states under the age of 21, 11,157, or at least one in every 30, were in adoptive homes. Another 6,700 were in foster care situations. Comparison of Indian adoption and foster placement rates with those of the non-Indian population for the same state invariably showed the Indian rate was higher, usually at least two to four times as high and sometimes 20 times higher. Where the statistics were available they showed that most of the adoptions and placements, sometimes 95 percent of them, were with non-Indian families.
One of the most serious failings of the present system is that Indian children are removed from the custody of their natural -parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best Ignorant of our cultural values, and at worst contemptful (sic) of the Indian way and convinced that removal, usually to a non-Indian -household or institution, can only benefit an Indian child. Removal is generally accomplished without notice to or consultation with responsible tribal authorities.
Often the situation which ultimately leads to the separation of the child from his family is either not harmful to the child, except from the ethnocentric viewpoint of one unfamiliar with the Indian community, or is one which could be remedied without breaking up the family. Unfortunately, removal from parental custody is seen as a simple solution. Typically the parents do not understand the nature of the proceeding, and counsel represents neither parents nor child.
Not only is removal of an Indian child from parental custody not a simple solution, under present policies it is no solution at all. The effect of these practices can be devastating—both for the child and his family, and in a broader sense, for the tribe. The child, taken from his Native surroundings and placed in a foreign environment is in a very poor position to develop a healthy sense of identity either as an individual or as a member of a cultural, group. The resultant loss of self-esteem only leads to a greater Incidence of some of the most visible problems afflicting Indian communities: drug abuse, alcoholism, crime, and suicide. The experience often results, too, in a destruction of any feeling of self -worth of the parents, who are deemed unfit even to raise their own children. There is a feeling among professionals who have dealt with the problem that this sort of psychological damage may contribute to the Incidence of alcohol abuse.
Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices ‘seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.
The ultimate responsibility for child welfare rests with the parents and we would not support legislation, which Interfered with that basic relationship. What we are talking about here is the situation where government, primarily the state government has moved to intervene in family relationships. S. 1214 will put govern mental responsibility for the welfare of our children where it belongs and where it can most effectively be exercised, that is, with the Indian tribes. NTCA believes that the emphasis of any federal child welfare program should be on the development of tribal alternatives to’ present practices of severing family and cultural relationships. The jurisdictional problems addressed by this bill are difficult and we think it wise to encourage the development of good working relationships in this area between the tribes and nontribal governments whether through legislation, regulation, or tribal action. We would not want to create a situation in which the anguish of children and parents are prolonged by jurisdictional fights. This is an area in which the child’s welfare must be primary.
Source: Hearings on Indian Child Welfare before the Senate Subcommittee on Indian Affairs. 95th Cong., 1st Session (1977).
Further Reading
Atwood, Barbara Ann. Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children. Durham, NC: Carolina Academic Press, 2010.
Blanchard, Evelyn. “The Question of Best Interest,” in Steven Unger, ed. The Destruction of American Indian Families. New York: Association on American Indian Affairs, 1977, 57–60.
Byler, William. “The Destruction of American Indian Families.” In The Destruction of American Indian Families. Edited by Steven Unger. New York: Association on American Indian Affairs, 1977, 1–11.
Fanshel, David. Far from the Reservation: The Transracial Adoption of American Indian Children. Metuchen, NJ: The Scarecrow Press, Inc., 1972.
Harness, Susan Devan. Mixing Cultural Identities through Transracial Adoption: Outcomes of the Indian Adoption Project (1958-1967). Lewiston, NY: Edwin Mellen Press, 2008.
Jacobs, Margaret D. A Generation Removed: The Fostering and Adoption of Indigenous Children in the Postwar World. Lincoln: University of Nebraska Press, 2014.
Johnson, Troy R., ed. The Indian Child Welfare Act the Next Ten Years: Indian Homes for Indian Children. Conference Proceedings, August 22–24, 1990. Los Angeles: American Indian Studies Center, University of California at Los Angeles, 1991.
Lyslo, Arnold L. “Background Information on Indian Adoption Project: 1958 through 1967.” In David Fanshel, Far from the Reservation: The Transracial Adoption of American Indian Children. Metuchen, NJ: The Scarecrow Press, Inc., 1972, 33–49.
National Indian Child Welfare Association website. May 4, 2015. http://www.nicwa.org/
Simon, Rita J. and Sarah Hernandez. Native American Transracial Adoptees Tell Their Stories. New York: Lexington Books, 2008.
Unger, Steven, ed. The Destruction of American Indian Families. New York: Association on American Indian Affairs, 1977.
U.S. Department of Interior News Release, “Indian Children Adopted during 1967 at Almost Double the 1966 Rate,” March 24, 1968. Accessed May 4, 2015. http://www.bia.gov/cs/groups/public/documents/text/idc017233.pdf
U.S. House of Representatives, Hearings on Indian Child Welfare Act of 1978 before the Subcommittee on Indian Affairs and Public Lands on the Committee on Interior and Insular Affairs, 95th Cong., 2nd Sess., Washington, D.C.: U.S. GPO, 1981.
U.S. Senate, Hearings on Indian Child Welfare Act of 1977 before the Select Committee on Indian Affairs, 95th Cong., 1st Sess., Washington, D.C.: U.S. GPO, 1977.
American Indian Religious Freedom Act, 1978
Angelique EagleWoman (Wambdi A. WasteWin)
Chronology
Time immemorial |
Native Americans in the Western Hemisphere practice religious and ceremonial cultural lifeways guided by seasonal calendars and administered to sacred geographical sites to keep the world in balance. |
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1600s–1700s |
Europeans establish colonies in North America with many fleeing from religious persecution in England. Newly created churches categorized Native Americans as non-Christian and therefore “pagans” and “savages.” |
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1787 |
U.S. Constitution is adopted with the following First Amendment language on religious freedom: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” |
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1823 |
U.S. Supreme Court announced in the Johnson v. McIntosh decision the “doctrine of discovery” as the legal basis for asserting title to all American Indian lands in North America. |
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1879 |
Carlisle Indian School is established as the model to “civilize” American Indian children and convert them to Christianity based upon a military regimen. |
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1880s |
Compulsory attendance is imposed on American Indian children in government and/or religious boarding and day schools with rigid requirements of English-only standards for the children, U.S. patriotism instruction, and conversion to Christianity as “civilization” training. |
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U.S. Indian Commissioner Hiram Price delivers his annual address supporting the proselytization of American Indians into Christian denominations. |
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1884 |
The U.S. Bureau of Indian Affairs creates the Indian Religious Crimes Code with enforcement in the U.S. Courts of Indian Offices to punish American Indians practicing traditional cultural and ceremonial lifeways. |
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1890 |
December 26. To prohibit the ceremonial Ghost Dance, the largest number of U.S military forces since the U.S. Civil War are mobilized to the Dakota Territory. The U.S. military commits the Wounded Knee Massacre, killing more than 300 unarmed men, women, and children. |
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1924 |
The Indian Citizenship Act is enacted by the U.S. Congress, creating dual citizenship for American Indians as tribal citizens and U.S. citizens. |
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1970s |
American Indian governments, organizations, and people voice public protests regarding the ongoing U.S. religious persecution of those practicing traditional cultural and religious lifeways. |
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1978 |
August 11. American Indian Religious Freedom Act (AIRFA) is enacted by the U.S. Congress with no enforcement mechanism provided. |
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1994 |
AIRFA is amended to recognize the usage of peyote as part of traditional American Indian religious ceremonies and directed that no criminal penalties be assessed or, public-benefit deprivation occur, for an American Indian using peyote in a bona fide religious practice. |
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1996 |
U.S. President Bill Clinton issues Executive Order No. 13007 directing federal agencies to provide access and accommodation for American Indians to sacred sites on federal public lands. |
Introduction
The American Indian Religious Freedom Act of 1978, 42 U.S.C. § 1996, was enacted in response to the petitions of tribal governments, organizations, and individuals to change the policies of the United States in seeking to convert Native Americans to Christianity and to suppress the traditional cultural and ceremonial lifeways of Native Americans. Native Americans sought a federal law that would provide legal protection for the practice of traditional cultural and ceremonial lifeways, for access and ceremonial practices at sacred sites on federal public lands, and the protection of ceremonial items.
A Northern Arapaho tribal member who killed a bald eagle in 2005 for use in a religious ceremony makes his way into the 10th Circuit Court of Appeals at the Federal Courthouse in Denver, 2007. A federal government decision to allow the Wyoming tribe to kill two bald eagles for a religious ceremony was a victory for American Indian religious freedoms. In the following year, the American Indian Religious Freedom Act of 1978 would offer federal protection for traditional and ceremonial practices. (AP Photo/Bill Ross)
In response, a bill was sponsored with three main purposes identified during the congressional hearings: 1) allowing Native Americans access to sacred sites located on federal public lands, 2) protecting the use of peyote as a sacrament by the Native American Church free of federal or state prosecution for possession of an illegal substance, and 3) allowing Native Americans the continued use of eagle feathers and other ceremonial items without the threat of federal prosecution under eagle-protection laws. On behalf of the U.S. Department of Justice, Assistant U.S. Attorney General-Legislative Affairs Patricia M. Wald submitted a letter of support for the bill with the understanding that no change to any existing federal or state laws would be required.
The bill as enacted was described in the Congressional Record by Representative Morris K. Udall as having “no teeth in it.” The text of the first section of the act provided access to sacred sites and the ability to possess sacred items. The second section directed a review of federal agency policies and procedures for alignment with the policy statement in the first section.
In 1994, AIRFA was amended to accomplish the protection of sacramental peyote use by Native Americans free of criminal prosecution in the federal or state judicial systems. The amendment also protected Native Americans engaged in the bona fide ceremonial use of peyote from public-benefits deprivations based upon that usage.
The U.S. Governmental Policy of Eliminating Native American Religious Practice
With the formation of the United States, Euro-Americans viewed non-Christians as inferior and lacking the same religious freedom protections as Christians. The Christian faiths rely on a written text and practitioners may travel to any location. For Native Americans, cultural and religious practices are interwoven with the natural world. In the Native American worldview, the earth is a living being and referred to as “Mother Earth,” which denotes a cultural and spiritual relationship. Further, all Native American religious practices adhere to the viewpoint of the inter-relationship of the natural world and human society. In contrast, the written text for Christianity places human beings in superior ranking to the natural world, which allows for exploitation.
With these fundamental differences, the history in the United States has been one of religious persecution for Native Americans. The efforts of proselytizing American Indians to Christianity began with the first Europeans to travel to the western hemisphere and continue to the present day. Under U.S. Indian policy in the 1800s, U.S. officials advocated for the “civilization” of American Indians, and particularly of children. The U.S. Indian policy era of assimilation and allotment during the late 1800s was intended to drastically reorient American Indians from traditional cultural and religious lifeways to emulate Euro-American Christian farmers. Three major efforts formed the U.S. Indian policy of this era: 1) outlawing American Indian religious and cultural practices; 2) enforcing compulsory U.S. education on American Indian children with a focus on conversion to Christianity; and 3) dividing the reserved homelands of tribal nations into small parcels of land to convert Indians into Christian farmers through the 1887 General Allotment Act.
Indian Religious Crimes Code
In 1882, U.S. Indian Commissioner Hiram Price delivered his annual report on the work of the U.S. Bureau of Indian Affairs (BIA), in which he advocated for Christian missionaries to provide education to American Indians as furthering the civilization mission of the U.S. government. “I am decidedly of the opinion that a liberal encouragement by the government to all religious denominations to extend their educational missionary operations among the Indians would be of immense benefit … In no other manner and by no other means, in my judgment, can our Indian population be so speedily and permanently reclaimed from the barbarism, idolatry and savage life, as by the educational and missionary operations of the Christian people of our country” (Prucha, 156). In his November 1, 1883, annual report, U.S. Secretary of the Interior Henry Teller similarly asserted that tribal medicine men were imposters and should be compelled to stop their practices (Prucha, 159).
In furtherance of these sentiments, Commissioner Price developed the Indian Religious Crimes Code to be implemented in the U.S. Courts of Indian Offenses on Indian reservations. The BIA regulations were issued in 1884 establishing the courts (Haas, 6), The fourth rule of the code provided:
4th. The “sun-dance,” the “scalp-dance,” the “war-dance,” and all other so-called feasts assimilating thereto, shall be considered “Indian offenses,” and any Indian found guilty of being a participant in anyone or more of these “offenses” shall, for the first offense committed, be punished by withholding from the person or persons so found guilty by the court his or their rations for a period not exceeding ten days; and if found guilty of any subsequent offense under this rule, shall by punished by withholding his or their rations for a period not less than fifteen days, nor more than thirty days, or by incarceration in the agency prison for a period not exceeding thirty days.
To directly punish medicine men practicing traditional cultural and religious lifeways, the sixth rule of the code provided:
6th. The usual practices of so-called “medicine-men” shall be considered “Indian offenses” cognizable by the Court of Indian Offenses, and whenever it shall be proven to the satisfaction of the court that the influence or practice of a so-called “medicine-man” operates as a hinderance [sic] to the civilization of a tribe, or that said “medicine-man” resorts to any artifice or device to keep the Indians under his influence, or shall adopt any means to prevent the attendance of children at the agency schools, or shall use any of the arts of a conjurer to prevent the Indians from abandoning their heathenish rites and customs, he shall be adjudged guilty of an Indian offense, and upon conviction … shall be confined in the agency prison for a term not less than ten days, or until such time as he shall produce evidence satisfactory to the court, and approved by the agent, that he will forever abandon all practices styled Indian offenses under this rule.
This set of rules was later revised in 1892 by Commissioner of Indian Affairs Thomas J. Morgan to set the term of imprisonment between ten and thirty days, and subsequent offenses to be charged for a maximum term of six months (Prucha, 186).
Many American Indians continued in opposition to these policies. On the Standing Rock Reservation, the Lakota medicine man and leader Chief Sitting Bull (Tatanka Iyotake) had allowed the practice of the Ghost Dance near his home. The local Indian agent sent out agency police to bring in Sitting Bull, and in doing so, the leader was killed. Following his death, Lakota Chief Big Foot sought safety at the Pine Ridge agency and proceeded to fly a white flag of surrender and peace when the group was intercepted by U.S. cavalry. The cavalry escorted them to a campsite set up by the military near the village of Wounded Knee.
The next morning, on December 26, 1890, the U.S. cavalry opened fire on the unarmed men, women, and children at the campsite. Survivors have related the horrific events that became known as the Wounded Knee Massacre of 1890 (Cohen’s Handbook, 965). Thus, a message was sent to American Indians that the United States intended to use military force to suppress the Ghost Dance and other religious practices.
Allotment and Loss of Tribal Sacred and Cultural Sites
A third thrust of U.S. Indian policy to assimilate American Indians was division of tribal lands into separate parcels to diminish the tribal landholdings. Specific federal legislation had been passed for particular tribal nations. The U.S. Congress approved the 1887 General Allotment Act (commonly referred to as the “Dawes Act” after its primary sponsor Senator Henry Dawes). Through the law, the U.S. President determined a reservation subject to allotment, and U.S. Indian agencies implemented the land-division process. Through this process, the Indian agent created a tribal roll of members eligible to receive an allotment within reservation boundaries. Allotments were held by the U.S. government as trustee on behalf of the landowner for an initial 25-year period, later extended indefinitely. After allotments were determined, the U.S. government considered the remaining lands as “surplus” and set its purchase price to gain the lands as federal public lands.
Between 1887 and the repeal of the law in 1934, approximately two-thirds of all Indian lands—close to 27 million acres—were lost. A second loss of land occurred through the surplus determination resulting in another 60 million acres leaving tribal ownership (Royster, 12–13). U.S. President Theodore Roosevelt championed the allotment policy and was also known for acquisition of federal public lands designated as conservation acres. With many sacred and cultural sites on the lands claimed by the U.S. government, Native Americans lost access to their most sacred spiritual places to conduct traditional religious practices. Additionally, those tribal nations removed by the U.S. military from their homelands during this period lost access to their ancestral cemeteries and sacred spiritual places, as well as their abilities to conduct their ceremonial seasonal practices.
Congressional Hearings, Reports, and the Enactment of the American Indian Religious Freedom Act
With the vocal protests of the Civil Rights Movement of the 1960s and 1970s, American Indian leaders, organizations, and individuals became more public in their assertions for religious freedom. With the Indian self-determination gaining momentum in the mid to late 1970s, petitions, lobbying efforts, and public protests resulted in a bill to support American Indian religious freedom, co-sponsored by Senator James Abourezk of South Dakota and Representative Morris Udall of Arizona.
On February 24 and 27, 1978, the U.S. Senate Select Committee on Indian Affairs held hearings on American Indian religious freedom issues in furtherance of the bill. Several major concerns were expressed from tribal representatives from across the country. Witnesses at the hearings came from as far as the Yakama tribe in Washington to the Onondaga Nation of New York to deliver their statements to the committee. Common themes presented included the misunderstandings of non-Indian federal agency officials about access to sacred sites, the criminalization by all forms of law enforcement when Native Americans possessed ancient ceremonial items, and the desecration of Native American spiritual places. Several witnesses testified to the long history of U.S. governmental suppression of American Indian religious practices.
Deep gratitude was also expressed for the consideration of the new law. As Frank Tenario of the All Indian Pueblo Council explained, “We strongly support the efforts to get a consistent government-wide policy and procedures regarding the protection and preservation of Indian religious practices” (American Indian Religious Freedom Hearing on February 24 and 27, 1978, 15).
The testimony of Kurt Blue Dog and Walter Echo-Hawk underscored the disproportionately large numbers of American Indians in state and federal prisons who had been denied basic religious freedom rights. They offered examples of Indian males denied the ability to wear their hair long as an expression of spirituality, denial of the right to build a sweat lodge at prisoner facilities, and denial of the use of sacred pipes in ceremonies within prisons. This was juxtaposed with the federal and state prison systems’ provision of chapels, religious text meetings, and other religious freedoms to incarcerated non-Indians (American Indian Religious Freedom Hearing on February 24 and 27, 1978, 151–61).
When the bill was debated in the U.S. House of Representatives, several congressmen questioned the need for the law, the process of implementation, and the lack of a list of sacred sites held by the federal government. In response, Congressman Udall addressed the concerns that the law would provide access on federal public lands, not private lands; that there should not be a list of sacred sites kept by the federal government; and that the law would have “no teeth in it” (Congressional Record-House (July 18, 1978), p. 21445).
The American Indian Religious Freedom Act was formally enacted on August 11, 1978, through a joint resolution of the Senate and House of Representatives and codified at 42 U.S.C. § 1996. In the introduction of the resolution, the U.S. Congress found that “the lack of a clear, comprehensive, and consistent Federal policy has often resulted in the abridgment of religious freedom for traditional American Indians.” The first section of the law provided: “On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” The second section instructed the U.S. President to require all federal agencies to review and evaluate their policies and procedures in consultation with Native traditional religious leaders to determine whether changes were necessary to carry out the purposes of the law.
The federal agency review resulted in a report to the U.S. Congress within the one-year deadline given. The 98-page report, P.L. 95–341, was delivered August 1979 from the Federal Agencies Task Force chaired by Secretary of the Interior, Cecil Andrus. The report dealt with many common misconceptions about Native American religious practices and provided comprehensive recommendations.
The conclusion section recognized the major step forward in understanding between the indigenous peoples and the mainstream ideas on religions.
Many issues raised by the passage of the American Indian Religious Freedom Act reflect the prejudices and rigidity of past eras and not the matured understanding which characterizes contemporary America. Behind many objections may lurk the suspicion which the unfamiliar invokes in the mind before it comes to a more perfect understanding. It is clear from the direction of growth in understanding that has characterized American society in this century and from the adoption of a specific statement on American Indian religious freedom by the Congress, that a policy of removing barriers to Indian religious freedom is perceived as the next step in the growth of American religious freedom and political maturity. (AIRFA Report, August 1979, 97)
Sidebar 1: Two Federal Cases Highlighting the Lack of Protection for Sacred Sites
1. Lyng v. Northwest Indian Cemetery Association, 485 U.S. 439 (1988)
The Six Rivers National Forest, near the Hoopa Valley Indian Reservation in northern California, has significance to numerous Native American Nations in the area. In 1982, the U.S. Forest Service (U.S.F.S.) proposed a timber road through the Chimney Rock area, a place of sacred ceremonial significance. A lawsuit was filed by a coalition of organizations, tribes, and individuals in federal court seeking an injunction to stop construction. The original decision by the federal district court and the Ninth Circuit Court of Appeals to uphold this junction was appealed to the U.S. Supreme Court by the U.S.F.S.
In an opinion authored by Justice Sandra Day O’Connor, the Court reversed the injunction and denied the claims by American Indians. Because the U.S.F.S. allowed access to the sacred site, the Court found no constitutional violation of the First Amendment’s Free Exercise Clause. Rather, the decision focused on the land-ownership aspects of the case as determinative to permit the U.S.F.S. to build the timber-hauling road.
2. Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008 en banc) (Snowbowl Case)
Three sacred peaks, the largest referred to as Humphrey’s Peak in the Coconino National Forest, compose the San Francisco Peaks under the land management of the U.S.F.S. Numerous tribal nations have nurtured the peaks as sacred since time immemorial, including the Havasupai, Hopi, Hualapai, Navajo, White Mountain Apache, and Yavapai-Apache Nations. The U.S.F.S. approved the building of a ski run on Humphrey’s Peak in the 1930s. known as the “Snowbowl.” When an expansion was planned, tribal groups filed suit in federal court in the 1980s. Federal courts held that the expansion did not burden the religious practices of American Indians, because they had not been denied access to the Peaks.
In February 2005, the U.S. Forest Service approved the private contractor of the Snowbowl’s proposal to generate snow from recycled wastewater to spray on the ski slopes due to lack of snowfall in northern Arizona. To stop the use of the recycled wastewater, tribal groups filed for an injunction in federal court. The injunction was denied. On appeal to the Ninth Circuit after a favorable ruling by a three-judge panel, a full en banc panel reheard the case and denied that the Forest Service approval burdened religious freedom under the 1993 Religious Freedom and Restoration Act.
The American Indian Religious Freedom Act signaled a change from federal suppression to federal support. However, many of the issues raised by tribal representatives were not fully addressed, and the lack of an enforcement mechanism in the law led many to criticize the AIRFA as not accomplishing its stated purpose.
American Indian Religious Freedom Act Amendment in 1994: The Sacramental Use of Peyote
Not addressed in the 1978 American Indian Religious Freedom Act was specifically the use of peyote as a sacrament by the practitioners of the Native American Church. Under federal and state laws, possession and ingestion of peyote has been considered a criminal act subject to prosecution. Although the use of peyote was for religious and sacramental purposes, federal and state authorities viewed Native American use as strictly criminal activity. In 1990, the U.S. Supreme Court upheld the denial of unemployment benefits and the state classification of sacramental use of peyote as a felony and therefore found no violation of the U.S. Constitution’s First Amendment Free Exercise Clause in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872.
In the aftermath of the U.S. Supreme Court decision, tribal organizations, leaders, and individuals again sought federal protection of the use of peyote as part of American Indian religious practice. A thorough and compelling report from the House Representatives Committee on Natural Resources provided background information on the usage of peyote by Native Americans.
Anthropologists date the sacramental use of the peyote cactus among indigenous peoples back 10,000 years. Native American religious use of peyote was discovered by Spanish explorers in the 1600s and has continued to the present. Such use exists today, largely through the Native American Church (NAC), among more than 50 Indian tribes in the United States. The NAC is the present-day embodiment of one of the oldest religious traditions in the western hemisphere. (Report on AIRFA Amendments of 1994, August 1994, 3)
Sidebar 2: Further Federal Action to Protect Sacred Items and Sites
Native American efforts continued for the protection of sacred items, cemeteries, and the return of human remains. These efforts culminated in the enactment of the 1990 Native American Graves Protection and Repatriation Act (NAGPRA), codified at 25 U.S.C. § 3001 et seq. Under the law, a review committee was established to report regularly to the U.S. Congress on the implementation of the NAGPRA.
Without an enforcement mechanism in the American Indian Religious Freedom Act, tribal leaders found it difficult to interact with federal agencies in accessing and protecting sacred sites on federal public lands. This was addressed through executive action. In 1996, U.S. President William Clinton signed Executive Order No. 13007, directing all federal agencies to accommodate access to sacred sites on federal lands for Native Americans, to prevent adverse impact to such sacred sites, and to protect the confidentiality of the sites as appropriate. The second section required federal agencies to provide a report detailing changes to existing policies to comply with the order, including a process for consultation with tribal leaders (61 Fed. Reg. 26771). This order facilitated consultation on sacred sites on public lands but did not require that tribal recommendations be followed after the consultation.
The report also provided a summary of the recent U.S. Supreme Court decision and the resulting inconsistent legal status for religious practitioners subject to varying state laws.
In response, the U.S. Congress enacted 42 U.S.C. § 1996a titled: “Traditional Indian religious use of peyote” and 42 U.S.C. § 1996(b)(1), which directly dealt with the religious possession and use of peyote. Under the latter section: “(1) Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.” With this federal enactment, the ruling in the Smith decision was effectively nullified.
Suzan Shown Harjo (Cheyenne and Hodulgee Muscogee) was born in 1945 in El Reno, Oklahoma, and is recognized as one of the preeminent advocates for American Indian religious and cultural rights. Descended from the Cheyenne Chief Bull Bear, Suzan was determined to give voice to American Indians in their fight for cultural and religious survival. In the 1960s, she married Frank Harjo and co-produced the first Native American news radio program aired in New York City. Then in 1974, she moved with her son and husband to Washington, D.C., where she served as legislative liaison for two law firms specializing in American Indian law.
In 1978, U.S. President Jimmy Carter appointed her as special assistant for Indian Legislation in his administration. Her efforts contributed to the passage of the American Indian Religious Freedom Act of 1978 and other significant legislation positively impacting tribal communities. During an interview in 2010, Harjo reported: “I am very proud of having been a Carter political appointee and having been the primary author of his 1979 Report to Congress on American Indian Religious Freedom. Even though we didn’t get everything we wanted, the act as a policy statement and as a process for follow-on legislation was and is invaluable” (Interview by Jennifer Weston, Cultural Survival Organization, Winter 2010).
In memory of her husband, she founded The Morning Star Institute, a Native rights advocacy organization, in 1984. Today, she serves as president of the Institute. From 1984 to 1989, she also served as the executive director of the National American Indian Congress (NCAI). Throughout her decades of activism, she has stood firmly as a voice for protection of sacred sites and items. She has continued her advocacy, stating, “Our churches are being attacked and our people can’t go to them to pray. It’s a fight against white men with gold in their eyes” (Indian Country Today, 9 Sacred Sites Quotes to Remember, 6/17/15). Since the early 1990s, she has been a force behind the litigation to cancel the trademark of the NFL’s Washington D.C. team based on its offensive Indian mascot.
Her advocacy also influenced the enactment of the 1989 National Museum of the American Indian Act, the 1990 Native American Native American Graves Protection and Repatriation Act, and the signing of Executive Order No. 13007 on Protection of Sacred Sites. In November 2014, Suzan was awarded the U.S. Presidential Medal of Honor.
DOCUMENT EXCERPT
On the 25th anniversary of the AIRFA, the Senate Select Committee on Indian Affairs held a hearing to determine whether further federal action was necessary for implementation of the law. The hearing was held on July 14, 2004, and included concerns on the failure of federal agencies to follow the directive to allow access to sacred areas on public lands, to prevent the destruction of those sites, and to protect the privacy of their locations.
Testimony of Suzan Shown Harjo, President, The Morning Star Institute
It has been 25 years that we have been waiting for a cause of action to protect sacred places; 26 years ago, the Forest Service was successful in lobbying Congress to strip the American Indian Religious Freedom Act of a cause of action and to make statements on the House floor that would guarantee that there would be no cause of action in this bill.
The Supreme Court, because of that action and that successful lobby effort by the Forest Service, basically said in 1988 that, not only did the Religious Freedom Act not offer a cause of action, but the freedom of religion clauses of the First Amendment did not offer any protection for us.
We have no way of getting into court on this matter. We have no way of staying in court to protect our sacred places. The Federal agencies know that. That is why they are pretty cavalier about ignoring what we have to say about access and protection of our sacred places on what they view as their land.
The authority for the Forest Service and other Federal agencies to allow us access to medicine places, for example, is in fact that those lands are our lands. They were confiscated by the Federal Government. They were taken by these Federal agencies and I believe held illegally. But even if you allow that they are taken and held under the color of law, it does not make it right, and we still have prior and paramount rights to those gathering areas.
There should be no question that Federal agencies can permit closure of certain areas for ceremonial purposes, permit taking of what was referred to in one testimony as “forest products.” Those are our medicine plants. Those are our sacred objects. Those are our sacred items. Those things are guaranteed to us by the natural laws, the original laws, by the laws that put us in these places.
Source: Religious Freedom Act. Hearing before the Committee on Indian Affairs, Senate, 108–630. July 14, 2004. Washington, D.C.: Government Printing Office, 2004, 11–12.
See also: Native American Graves Protection and Repatriation Act, 1990
Further Reading
Executive Order No. 13007, 61 Fed. Reg. 26771 (May 24, 1996).
Haas, Theodore H. The Indian & The Law-1. United States Indian Service, Lawrence: Haskell Institute, 1949.
Newton, Nell Jessup, ed. Cohen’s Handbook of Federal Indian Law. LexisNexis, 2012. [Cohen’s Handbook in text]
Prucha, Francis Paul, ed. Documents of United States Indian Policy. Lincoln and London: University of Nebraska Press, 2000.
Royster, Judith V. “The Legacy of Allotment.” Arizona State Law Journal, 1995, 27: 1–78.
Smith, Andrea. “Soul Wound: The Legacy of Native American Schools.” Amnesty International Magazine. 2007. Accessed June 23, 2015. http://www.amnestyusa.org/node/87342.
United States Federal Agencies Task Force, American Indian Religious Freedom Report P.L. 95–341, Washington, D.C.: U.S. GPO, 1979.
U.S. House of Representatives Committee on Natural Resources, Report on American Indian Religious Freedom Act Amendments of 1994, 103rd Cong., 2nd Sess., Washington, D.C.: U.S. GPO, August 5, 1994.
U.S. Senate Select Committee on Indian Affairs, Hearings on American Indian Religious Freedom, 95th Cong., 2nd Sess., Washington, D.C.: U.S. GPO, Feb. 24 and 27, 1978.
Santa Clara Pueblo v. Martinez, 1978
Torivio A. Foddor
Chronology of Events
Santa Clara Pueblo v. Martinez: Conflicting Values in the Struggle for Tribal Self-Determination
Santa Clara Pueblo is located along the dusty banks of the Rio Grande River in Northern New Mexico. A stone’s throw away from the Los Alamos National Laboratory, the gravel roads of the pueblo twist and bend amid the arid foothills of the Jemez Mountains. The nearby town of Española, New Mexico, has served the area as a railroad outpost since the late 1880s, providing the region with access to goods and services from the Rio Grand Western Railroad line. To visit the area is to embrace a community that has navigated the delicate balance of diversity and culture for nearly six centuries.
Given the remoteness of the Pueblo, it may seem surprising that such a small place, boasting a population of nearly 4,000 residents, could have such a significant impact on American Indian history. And yet, the saga that became the U.S. Supreme Court case Santa Clara v. Martinez, 436 U.S. 49 (1978) emanated from exactly this quiet corner of Indian country. Eventually, a disagreement about membership among tribe members in the Pueblo resulted in a legal case traveling all the way to the U.S. Supreme Court, and the opinion by the Court set a major precedent for tribal governments, entrusting tribal court systems to adjudicate claims brought against them under the Indian Civil Rights Act, and enabling them to maintain control over their internal affairs without the threat of outside interference.
In discussing any historic event related to the Pueblos of Northern New Mexico, it is important to note that their history did not begin with the arrival of the Spanish. The Tewa-speaking peoples of this region have made their home along the banks of the Rio Grande since time immemorial, developing distinct cultures that have overlapped and intersected with one another for as long as the waters have passed over the rocks that set the foundations of time. This vibrant past is alive and well in the dances, ceremonies, and religious traditions of New Mexico’s Pueblos.
And yet, the first recorded contact with the Pueblo of Santa Clara begins with the 1541 expedition of Spanish explorer Francisco Vásquez de Coronado, who visited Santa Clara Pueblo on his expedition through what would become the southwestern United States. The result of this initial encounter would eventually lead to the establishment of Spanish missions among the Pueblo communities of the Rio Grande Valley, and within the Santa Clara Pueblo community in 1628. Other Pueblos in the region would strike a similar balance with the new arrivals, opening their communities to Spanish missionaries, settlers, and traders, often by force.
As waves of Spanish settlers began to arrive, the Pueblos became increasingly frustrated by the imposition of the Catholic religion on their people, and the suppression of their traditional religions—sometimes through the execution of traditional elders and leaders. This tension came to a head in the Pueblo Revolt of 1680. Led by Tewa religious leader Popé of Ohkay Owingeh (formerly San Juan Pueblo), the Pueblos of the Rio Grande Valley were able to forge a military coalition of some 2,000 pueblo warriors extending as far west as the Zuni and Hopi tribes, located along the border of present-day eastern Arizona and western New Mexico. The rebellion was able to successfully drive the Spanish from their provincial capital in Santa Fe, forcing them to retreat to El Paso del Norte, now the modern-day city of Ciudad Juárez in Mexico.
Ultimately, the Spanish would reconquer New Mexico in 1692, under the leadership of Diego Vargas. As the Spanish progressed northward, one by one the Pueblos fell to the better-armed Spanish forces. Despite the eventual colonization of the region, the Pueblo success in the 1680 revolt led to the Spanish crown granting certain concessions to the Pueblo, including land grants to their villages. As a result, many of the Pueblos, including Santa Clara, were able to preserve much of their culture and traditional religions, and live in relative peace, despite the arrival of settlers in the region.
The history noted above is crucial to understanding the context of Pueblo governance as it relates to the Santa Clara v. Martinez case. As a function of their relative isolation from the influences of mainstream society, and the preservation of their centuries-old systems of governance, the people of Santa Clara Pueblo were able to exist and carry on with life, largely unimpeded by western influences. While many Pueblo residents embraced Catholicism and the Catholic missions within their communities, they were able to do so on their own terms. Many Pueblos, including Santa Clara, combined elements of traditional, Pueblo religions and practices with the teachings of the Catholic Church. This enabled them to arrive at a unique religious balance that helped preserve their communities. Similarly, the Pueblos’ governments functioned in a manner that allowed them to retain traditional values and societies while also carrying out modern functions of government.
As a part of its efforts to carry out modern governmental functions according to the traditional customs of the Pueblo, in 1939, the Santa Clara Pueblo sought to use the western legal process of creating laws to preserve its traditional values regarding tribal membership (Martinez 1976, 1040). In the 1930s, a number of marriages took place between Pueblo members and non-members. Traditionally, marriages had been arranged or had taken place between male and female members of the tribe. This eliminated most controversies over tribal membership, since both individuals were already members of the tribe. Even in instances where tribal members had married outside of the tribe, Santa Clara Pueblo had determined tribal membership on a case-by-case basis. Under this system, in a number of instances, the Pueblo had actually permitted children born to marriages of female tribal members and non-members to become members of the tribe (Martinez 1976, 1040).
However, Pueblo elders became increasingly concerned about the increase in mixed marriages between female tribal members and non-members, and its effects on the resources of the tribe, including tribal lands, water, and other resources (Martinez 1976, 1040). As a result, the Pueblo Council passed a tribal ordinance that restricted membership in the Pueblo according to the following regulations:
The result of the 1939 ordinance led to the categorical exclusion from tribal membership of any children born to female tribal members who married outside of the tribe. This change in policy directly affected numerous individuals who called Santa Clara Pueblo home, including the children of Julia Martinez (Santa Clara 1978, 52). While Julia Martinez was a “full-blooded member of the Santa Clara Pueblo,” she married a man from the Navajo Nation in 1941. As a result, under the tribe’s 1939 membership ordinance, Julia Martinez’s children were excluded from membership in the Santa Clara Pueblo, despite the fact that Julia resided on the reservation and was a member of the Pueblo herself. For Martinez’s children, this meant that they could not become members of the Pueblo, vote in tribal elections, hold office, or inherit their mother’s home or interests in tribal lands (Santa Clara 1978, 52–53). On the other hand, culturally, her children were very much able to participate in the life of the Santa Clara community. They were allowed to speak the Tewa language, take part in the practice of the tribe’s religion, and participate in the traditions and customs of the Pueblo (Martinez 1976, 1041).
Despite her efforts to persuade the tribe to change its membership rules, Martinez was ultimately unsuccessful. In the intervening years, however, Congress passed the Indian Civil Rights Act of 1968 (ICRA), which carried with it “two distinct and competing purposes.” The first was to “strengthen the position of individual tribal members” in their dealings with the tribe. The second was to promote the federal “policy of furthering Indian self-government” (Santa Clara 1978, 62). One of ICRA’s provisions regarding individual rights sought to ensure that tribes did not “deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law” (25 U.S.C. § 1302 (A)(8)). The language of the provision seemed to apply to the Martinez case, and Julia and her adult daughter, Audrey, filed suit in the U.S. District Court for the State of New Mexico in 1975. The two argued that the Santa Clara membership ordinance violated the equal protection provisions of the ICRA (Martinez 1975, 6).
In order for a federal court to hear a case regarding the laws that govern the rights of American Indians and Indian tribes, it must first possess the jurisdiction, or the power to make legal decisions over the matter at hand. This is because tribal courts in their capacities as quasi-sovereign governments have “exclusive jurisdiction over wholly internal tribal subject matter such as membership disputes” (Canby Jr. 2015, 226). So, in order for the court to consider Julia and Audrey Martinez’s claims, the federal district court first had to determine whether or not it had the appropriate jurisdiction to hear the case.
Sidebar 1: Jurisdiction Definition
The question of jurisdiction ultimately factored quite heavily into the Supreme Court’s final opinion in Santa Clara v. Martinez. According to the Legal Information Institute at Cornell University, jurisdiction is defined as the power of a court to adjudicate cases and issue orders (Legal Information Institute 2015). In Indian country, tribes exercise broad civil jurisdiction over their internal affairs. As a result, the Court was obliged to consider whether Congress had expressly granted it the authority to consider the claims brought by Julia and Audrey Martinez. While the lower courts found an implicit grant of jurisdiction to hear the claims, the Supreme Court concluded that absent an express allocation of authority, it did not have jurisdiction to consider the claims.
The matter would have been much easier for the court to determine, except that the ICRA was completely silent on the matter of jurisdiction. In the actual text of the ICRA, there was simply no language to guide the court as to whether or not it had the jurisdiction to hear the case. As a result, Santa Clara Pueblo argued that the court lacked jurisdiction to consider the Martinezes’ claims (Martinez 1975, 7). Despite absence of guiding language, and the arguments of the tribe to the contrary, the district court nonetheless concluded that it possessed jurisdiction to hear the Martinezes’ case. The court noted that the claims of equal protection violations being raised against the tribe were far from “frivolous” and required the court to make a judgment on the actual claims being alleged by Julia and Audrey Martinez (Martinez 1975, 9).
Regarding the claims brought by Julia and Audrey, the court reached a much different conclusion. The court noted:
Even assuming plaintiffs [Julia and Audrey Martinez] are correct, the equal protection guarantee of the Indian Civil Rights Act should not be construed in a manner which would require or authorize this court to determine which traditional values will promote cultural survival … such a determination should be made by the people of Santa Clara; not only because they can best decide what values are important, but also because they must live with the decision every day (Martinez 1975, 18).
Ultimately, the result of the district court’s interpretation of the ICRA was to uphold the Santa Clara membership ordinance by promoting the sovereignty of the tribe. The court concluded that a tribe must be able to make and enforce its decisions about membership as a part of its cultural identity, and that an external authority should not interfere with such determinations (Martinez 1975, 18–19).
Given the outcome in the federal district court, Julia and Audrey Martinez appealed their case to the U.S. Court of Appeals for the Tenth Circuit, hoping for a different result. Following the same line of reasoning as the district court, the court of appeals concluded that the ICRA was intended “to provide protection against tribal authority” on behalf of individual Indians. Moreover, Congress must have intended to allow courts to hear such claims—“otherwise, it [the ICRA] would constitute a mere unenforceable declaration of principles” (Martinez 1976, 1042). Having dispatched with the question of jurisdiction, the court then considered whether the Santa Clara Pueblo membership ordinance violated the equal protection provision of the ICRA.
In determining the outcome of the case, the court observed that it must weigh the importance of tribal sovereignty against the individual right to fair treatment under the law in order to determine whether the membership ordinance could be upheld (Martinez 1976, 1045). Under this analysis, the court considered whether a tribe could extend certain rights to men while denying the same rights to women, and still be lawful under the ICRA. On this point, the court simply concluded that under the facts of the case, and the particular circumstances of the Martinez family, that the tribal membership ordinance did not justify treating male and female tribal members differently. The court also noted that the tribe failed to demonstrate how such different treatment of men and women promoted cultural survival (Martinez 1976, 1047).
The result of the second case was, of course, very different from the conclusion reached by the district court. In the first opinion, the lower court expressly held that the tribes should make such determinations of tribal values. In the court of appeals, the Tenth Circuit concluded that the individual Indian interest in tribal membership and equal justice exceeded the ability of the tribe to define its membership (Martinez 1976, 1047–1048).
Given the outcome of the second case, it is little surprise that the Santa Clara Pueblo would appeal the Tenth Circuit opinion to the United States Supreme Court. On appeal, the tribe argued that the ICRA did not waive its “sovereign immunity from suit” (Santa Clara 1978, 58). As a concept, tribal sovereign immunity is the legal doctrine that tribal governments cannot be sued without their consent. The same is true for state governments and the federal government. There are, of course, many exceptions to this doctrine, but it remains a viable legal principle that the courts must consider. In examining the tribe’s argument, the Court observed that legal precedents indicate that in order to waive a tribe’s sovereign immunity from suit, it must be “unequivocally expressed.” The provisions of the ICRA, however, do not mention an express waiver of immunity. As a result, the Court concluded that lawsuits against tribes (such as the one brought by Julia and Audrey Martinez) under the ICRA are “barred by [tribal] sovereign immunity from suit” (Santa Clara 1978, 59).
Sidebar 2: Tribal Sovereign Immunity
Sovereign immunity is the legal doctrine by which a government may not be sued without its consent. Under the laws of the United States, Indian tribes are considered to be domestic dependent nations, possessing a degree of sovereignty and self-government over their own affairs. Given this relationship with the government of the United States, tribal sovereign immunity has been recognized by the U.S. Supreme Court as an official element of Indian tribal governance.
Given the fact that there was no explicit waiver of immunity, the Court proceeded to analyze whether an “implicit” waiver of immunity is contained within the ICRA. This was the same question addressed by the district court in 1975. On this point, the Court observed that the only relief provided to those filing claims against the tribe was limited to habeas corpus relief. Habeas corpus relief, in this case, is the opportunity for individuals who have been arrested by a tribe to challenge their detention in federal court. Such a remedy would not apply to Julia and Audrey Martinez, because they were not challenging an arrest (indeed, they had not at all been arrested by the tribe), but were seeking to bring a lawsuit against the tribe for violations of the ICRA’s equal protection provision. As a result, the Court concluded that there was simply no jurisdiction for it to consider the claims brought by the Martinez family (Santa Clara 1978, 71–72).
The analysis of the Supreme Court was ultimately very different from the opinions of the district and appeals courts. Both lower courts had concluded that the ICRA provided jurisdiction for them to consider the claims brought by the Martinez family. The Supreme Court, led by Justice Thurgood Marshall, concluded that there was no jurisdictional basis for it to consider the claims of the Martinez family, because the tribe had invoked its sovereign immunity from suit, and because the ICRA did not provide jurisdiction for the Court to consider the claims. As a result, the Santa Clara tribal membership ordinance was upheld, and the Court never considered the equal protection arguments raised by Julia and Audrey Martinez.
While the legal history of the case is a bit convoluted, the outcome was widely considered to be a major victory for proponents of tribal self-government—perhaps at the expense of the individual liberty guarantees ensured to tribal members under the ICRA. In his dissent, Justice White criticized the majority opinion on exactly this point, declaring that he could not believe that Congress intended to leave the “enforcement of [ICRA] rights to be left up to the very tribal authorities alleged to have violated them” (Santa Clara 1978, 82). Nevertheless, the opinion set an astounding precedent for tribal governments, entrusting their court systems to adjudicate claims brought against them under the ICRA, and enabling them to maintain control over their internal affairs without the threat of outside interference.
In 2012, the members of the Santa Clara Pueblo voted in favor of membership change. The implementation of the tribal vote, and its implications for the children of female tribal members and non-tribal members remains a point of ongoing debate for the tribe.
Popé (also Popay, and Po he yemu)
The backdrop of American Indian history is littered with tales of peoples massacred, battles lost, and ultimately of lands lost—all to the invading tides of colonialism. And yet, the story of Popé and the Pueblo Revolt of 1680 is a crucial story for the positions that Native People took for self-government and for resisting conquest, signaling a moment outside of space and being where the Indians actually won, and managed to successfully drive the invading European powers from their lands.
The early life of the man behind the Pueblo Revolt of 1680 is largely lost to the annals of time. Even the meaning of his name, Popé, is a matter of some controversy, with scholars, linguists, and Pueblo members translating it as “Squash Mountain,” “Red Moon,” and even “Ripe Cultigens,” respectively (Roberts 2004, 159). However, there is little debate about the significance of Popé to Pueblo peoples, and his role in orchestrating the most successful American Indian rebellion in history.
Popé could, perhaps, best be described as a religious leader. A leader of the summer moiety at San Juan Pueblo (now know by its Tewa name, Ohkay Owingeh), Popé’s reputation at the height of his power spanned dozens of communities nearly 400 miles apart. He was a known “dissident” who rejected all things Spanish prior to the revolt of 1680 (Roberts 2004, 160). When Spanish Governor Juan Francisco Treviño arrived in the New Mexico province in 1675, he immediately launched a campaign to round up Pueblo spiritual leaders and deal with the problem of Indian sedition once and for all. His efforts saw the capture of some 47 medicine men from various Pueblos, all of whom he accused of practicing witchcraft (Gutiérrez 1991, 131). Three of the spiritual leaders were hanged, and the others publically flogged, for refusing to abandon their traditional religions. Among these leaders was the San Juan medicine man Popé (Calloway 2012, 92).
After learning of the religious leaders capture, Tewa warriors from a bevy of Pueblo communities marched on Santa Fe, demanding Popé’s release. Gov. Treviño, perhaps wary of sparking further insurrection among the Pueblos, opted to grant their demands (Roberts 2004, 159–60). Following his release, Popé would flee to Taos Pueblo, the northernmost Pueblo in New Mexico, and one of the most traditional and isolated. It would be from there, nestled in the heart of the Sangre De Cristo mountain range, that Popé would begin to plot nothing less than a revolution to throw off the Spanish yoke once and for all.
Having escaped the clutches of Spanish might, Popé’s reputation among the Pueblos grew. According to the Declaration of Indian Juan (1681), Pueblos throughout New Mexico were inclined to participate in the rebellion that would follow because of Popé’s ability to communicate with the “devil,” and on account of his willingness to use brutal tactics to ensure compliance—including the murder of a son-in-law whom he perceived to be a threat to the rebellion (Calloway 2012, 120–21). Popé’s message to the Pueblo masses was that the Christians and their god had to be destroyed in order for the ancient gods to show favor to the people once again. Given that the Spanish had stolen Pueblo crops, confiscated Pueblo lands, and suppressed Pueblo culture, Popé’s message was one of “liberation” (Gutiérrez 1991, 132).
With his coalition solidified, Popé began to plan his attack on the Spanish. While there were multiple opportunities, the Pueblo coalition opted to hit the Spanish during a crucial moment, attacking when their supplies were low and before reinforcements could arrive. If the plan were successful, the Spanish would be isolated from their capital city, Santa Fe, and the surrounding communities would be vulnerable to further attacks by Pueblo warriors (Calloway 2012, 92).
After conferring with his deputies, Popé set the date of the attack for August 11, 1680, the first night of the new moon. On August 9, 1680, August Popé dispatched runners to all of the Pueblo coalition, carrying cords with two knots tied into them—one knot for each day until the Pueblos would strike. The plan seemed pretty well on point until religious leaders opposed to the rebellion were able to learn the date of the attack, and leak word to Spanish Governor Otermín (Gutiérrez 1991, 132).
In response, leaders from Tesuque Pueblo urged Popé to move the attack to the next day. As Pueblo runners carried the new date of the rebellion to the rest of the coalition, the others prepared for war. Despite the Governor Otermín learning of the attack, the change in date was successfully communicated to the rest of the coalition. On August 10, 1680, the Pueblo Revolt began. Its execution was well planned. The warriors began by stealing or killing the Spanish modes of transportation, primarily their horses and mules. Without horses, the Spanish would be unable to communicate with Santa Fe and other outposts in New Mexico (Gutiérrez 1991, 133). The second objective of the Pueblo coalition was to isolate Santa Fe. To accomplish this, Pueblo warriors blocked all roads leading into Santa Fe and destroyed the surrounding villages one by one.
With Santa Fe effectively cut off from the rest of New Mexico, all that remained was to take the capital city. Popé’s men accomplished this by first cutting off access to food and water, before laying siege to the city. After nine days, realizing that his people could not last long under such conditions, Governor Otermín launched a counterattack aimed at temporarily repelling the Pueblo coalition, and buying enough time for the remaining colonists in Santa Fe to make their escape. The plan worked. While the Pueblo warriors regrouped from the Spanish counter-offensive, the remaining colonists made a hasty retreat south, passing the charred remains of their settlements and countrymen along the way (Gutiérrez 1991, 133–35). With the last of the Spanish on their way out of New Mexico, the Pueblo Revolt passed from military excursion into a cause for celebration. For once, the Pueblos had won.
The effects of the rebellion would be relatively short-lived, earning freedom for the Pueblos for some 12 years following the attack. But for Popé, the Pueblo Revolt would see him earn an almost mythical status in the Pueblo consciousness, transforming him from a simple medicine man to a national hero. In 2005, the State of New Mexico honored Popé’s legacy by unveiling his statute in the rotunda of the United States Capitol.
DOCUMENT EXCERPTS
The following document is an except from the 1939 Santa Clara Pueblo membership ordinance that ultimately sparked the Supreme Court decision in Santa Clara v. Martinez.
Santa Clara Pueblo Membership Ordinance—1939
Be it ordained by the Council of the Pueblo of Santa Clara, New Mexico, in regular meeting duly assembled, that hereafter the following rules shall govern the admission to membership to the Santa Clara Pueblo:
Source: Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)
The Indian Civil Rights Act of 1968 (ICRA) provided the legal basis for Julia and Audrey Martinez to challenge Santa Clara Pueblo’s membership requirements. The two argued that the Pueblo’s membership requirements were in violation of ICRA’s provisions guaranteeing equal protection to tribal membership.
The Indian Civil Rights Act of 1968 (Emphasis added)
In general—No Indian tribe in exercising powers of self-government shall—
(A) require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;
(B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;
(C) subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or
(D) impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;
Source: 25 U.S.C. §§ 1301—1304.
The following document is an excerpt from the actual U.S. Supreme Court case Santa Clara v. Martinez. After differing opinions from two federal courts, the effect of the Supreme Court’s decision would preserve Santa Clara Pueblo’s tribal membership ordinance.
Santa Clara Pueblo v. Martinez (1978)
Mr. Justice MARSHALL delivered the opinion of the Court.
This case requires us to decide whether a federal court may pass on the validity of an Indian tribe’s ordinance denying membership to the children of certain female tribal members.
Petitioner Santa Clara Pueblo is an Indian tribe that has been in existence for over 600 years. Respondents, a female member of the tribe and her daughter, brought suit in federal court against the tribe and its Governor, petitioner Lucario Padilla, seeking declaratory and injunctive relief against enforcement of a tribal ordinance denying membership in the tribe to children of female members who marry outside the tribe, while extending membership to children of male members who marry outside the tribe. Respondents claimed that this rule discriminates on the basis of both sex and ancestry in violation of Title I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301–1303, which provides in relevant part that “[n]o Indian tribe in exercising powers of self-government shall … deny to any person within its jurisdiction the equal protection of its laws.” § 1302(8).1
Title I of the ICRA does not expressly authorize the bringing of civil actions for declaratory or injunctive relief to enforce its substantive provisions. The threshold issue in this case is thus whether the Act may be interpreted to impliedly authorize such actions, against a tribe or its officers in the federal courts. For the reasons set forth below, we hold that the Act cannot be so read.
I
Respondent Julia Martinez is a full-blooded member of the Santa Clara Pueblo, and resides on the Santa Clara Reservation in Northern New Mexico. In 1941 she married a Navajo Indian with whom she has since had several children, including respondent Audrey Martinez. Two years before this marriage, the Pueblo passed the membership ordinance here at issue, which bars admission of the Martinez children to the tribe because their father is not a Santa Claran.
Although the children were raised on the reservation and continue to reside there now that they are adults, as a result of their exclusion from membership they may not vote in tribal elections or hold secular office in the tribe; moreover, they have no right to remain on the reservation in the event of their mother’s death, or to inherit their mother’s home or her possessory interests in the communal lands.
Following a full trial, the District Court found for [the tribe] on the merits. While acknowledging the relatively recent origin of the disputed rule, the District Court nevertheless found it to reflect traditional values of patriarchy still significant in tribal life. The court recognized the vital importance of respondents’ interests, but also determined that membership rules were “no more or less than a mechanism of social … self-definition,” and as such were basic to the tribe’s survival as a cultural and economic entity.
On respondents’ appeal, the Court of Appeals for the Tenth Circuit upheld the District Court’s determination that 28 U.S.C. § 1343(4) provides a jurisdictional basis for actions under Title I of the ICRA. * * * The Court of Appeals disagreed, however, with the District Court’s ruling on the merits. While recognizing that standards of analysis developed under the Fourteenth Amendment’s Equal Protection Clause were not necessarily controlling in the interpretation of this statute, the Court of Appeals apparently concluded that because the classification was one based upon sex it was presumptively invidious and could be sustained only if justified by a compelling tribal interest. * * * The court held that the tribe’s interest in the ordinance was not substantial enough to justify its discriminatory effect.
We granted certiorari, and we now reverse. * * *
III
* * * It is settled that a waiver of sovereign immunity “ ‘cannot be implied but must be unequivocally expressed.’ ” * * * Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. Moreover, since the respondent in a habeas corpus action is the individual custodian of the prisoner, see, e. g., 28 U.S.C. § 2243, the provisions of § 1303 can hardly be read as a general waiver of the tribe’s sovereign immunity. In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit.
IV
As an officer of the Pueblo, petitioner Lucario Padilla is not protected by the tribe’s immunity from suit. * * * We must therefore determine whether the cause of action for declaratory and injunctive relief asserted here by respondents, though not expressly authorized by the statute, is nonetheless implicit in its terms.
In addressing this inquiry, we must bear in mind that providing a federal forum for issues arising under § 1302 constitutes an interference with tribal autonomy and self-government beyond that created by the change in substantive law itself. * * * Although Congress clearly has power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief in § 1303, a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent. * * * Not only are we unpersuaded that a judicially sanctioned intrusion into tribal sovereignty is required to fulfill the purposes of the ICRA, but to the contrary, the structure of the statutory scheme and the legislative history of Title I suggest that Congress’ failure to provide remedies other than habeas corpus was a deliberate one. * * *
A
Two distinct and competing purposes are manifest in the provisions of the ICRA: In addition to its objective of strengthening the position of individual tribal members vis-à-vis the tribe, Congress also intended to promote the well-established federal “policy of furthering Indian self-government.” * * * This commitment to the goal of tribal self-determination is demonstrated by the provisions of Title I itself. Section 1302, rather than providing in wholesale fashion for the extension of constitutional requirements to tribal governments, as had been initially proposed, selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments. Thus, for example, the statute does not prohibit the establishment of religion, nor does it require jury trials in civil cases, or appointment of counsel for indigents in criminal cases.
The other Titles of the ICRA also manifest a congressional purpose to protect tribal sovereignty from undue interference. * * * *
Where Congress seeks to promote dual objectives in a single statute, courts must be more than usually hesitant to infer from its silence a cause of action that, while serving one legislative purpose, will disserve the other. Creation of a federal cause of action for the enforcement of rights created in Title I, however useful it might be in securing compliance with § 1302, plainly would be at odds with the congressional goal of protecting tribal self-government. Not only would it undermine the authority of tribal forums, but it would also impose serious financial burdens on already “financially disadvantaged” tribes.
Moreover, contrary to the reasoning of the court below, implication of a federal remedy in addition to habeas corpus is not plainly required to give effect to Congress’ objective of extending constitutional norms to tribal self-government. Tribal forums are available to vindicate rights created by the ICRA, and § 1302 has the substantial and intended effect of changing the law to which these forums are obliged to apply. Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. Non-judicial tribal institutions have also been recognized as competent law-applying bodies. Under these circumstances, we are reluctant to disturb the balance between the dual statutory objectives which Congress apparently struck in providing only for habeas corpus relief.
B
Our reluctance is strongly reinforced by the specific legislative history underlying 25 U.S.C. § 1303. This history, extending over more than three years, indicates that Congress’ provision for habeas corpus relief, and nothing more, reflected a considered accommodation of the competing goals of “preventing injustices perpetrated by tribal governments, on the one hand, and, on the other, avoiding undue or precipitous interference in the affairs of the Indian people.”
In settling on habeas corpus as the exclusive means for federal-court review of tribal criminal proceedings, Congress opted for a less intrusive review mechanism than had been initially proposed. * * *
By not exposing tribal officials to the full array of federal remedies available to redress actions of federal and state officials, Congress may also have considered that resolution of statutory issues under § 1302, and particularly those issues likely to arise in a civil context, will frequently depend on questions of tribal tradition and custom which tribal forums may be in a better position to evaluate than federal courts. * * * As is suggested by the District Court’s opinion in this case, efforts by the federal judiciary to apply the statutory prohibitions of § 1302 in a civil context may substantially interfere with a tribe’s ability to maintain itself as a culturally and politically distinct entity.
As we have repeatedly emphasized, Congress’ authority over Indian matters is extraordinarily broad, and the role of courts in adjusting relations between and among tribes and their members correspondingly restrained. Congress retains authority expressly to authorize civil actions for injunctive or other relief to redress violations of § 1302, in the event that the tribes themselves prove deficient in applying and enforcing its substantive provisions. But unless and until Congress makes clear its intention to permit the additional intrusion on tribal sovereignty that adjudication of such actions in a federal forum would represent, we are constrained to find that § 1302 does not impliedly authorize actions for declaratory or injunctive relief against either the tribe or its officers.
The judgment of the Court of Appeals, is, accordingly,
Reversed.
Source: Santa Clara Pueblo v. Martinez, 426 U.S. 49 (1978).
Further Reading
Calloway, Colin G. First Peoples: A Documentary Survey of American Indian History, 4th ed. Boston: Bedford/St. Martin’s, 2012.
Canby, Jr., William C. American Indian Law in a Nutshell, 6th ed. St. Paul: West, 2015.
Getches, David H., et al. Cases and Materials on Federal Indian Law, 5th ed. St. Paul: Thompson-West, 2005.
Gutiérrez, Ramón A. When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality, and Power in New Mexico, 1500–1846. Stanford, CA: Stanford University Press, 1991.
Legal Information Institute, Cornell University. https://www.law.cornell.edu/wex/jurisdiction
Martinez v. Santa Clara Pueblo, 402 F.Supp. 5 (1975).
Martinez v. Santa Clara Pueblo, 540 F.2d 1039 (1976).
Roberts, David. The Pueblo Revolt: The Secret Rebellion that Drove the Spaniards Out of the Southwest. New York: Simon & Schuster, 2004.
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
Anna Mae Pictou Aquash, 1945–1975
Claudia J. Ford
Chronology
1945 |
March 27. Annie Mae Pictou is born in the Shubenacadie band (now called the Indian Brook First Nation) reserve in Nova Scotia, Canada. |
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1962 |
After a childhood of poverty and dropping out of school despite being a good student, Anna Mae moves from the Mi’kmaq reservation to Maine, for factory work. |
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1964–1971 |
Aqaush moves among Boston, Maine, and New Brunswick and gives birth to two daughters, Denise Maloney (1964) and Deborah Maloney (1965). During this period, Aquash begins a lifelong interest in improving the formal education and tribal cultural education of Indian youth. |
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The American Indian Movement (AIM) is formed to protest police brutality against American Indians and to improve prison justice for Native Americans. As it grows, it expands to broad goals for protesting racism and improving lives of Indians. |
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1970–1973 |
Aquash becomes a member of AIM and takes part in various AIM protests: the anti-Thanksgiving National Day of Mourning at Plymouth, Massachusetts, in November 1970; the Trail of Broken Treaties, and the occupation of the Bureau of Indian Affairs (BIA) in Washington, D.C., in the Summer of 1972; and the 71-day occupation of Wounded Knee, South Dakota, in February through April of 1973. |
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1973 |
Aquash meets Nogeeshik Aquash, an Ojibwa political activist, and they marry in a traditional Lakota ceremony during the AIM occupation of Wounded Knee, although the marriage eventually breaks up. |
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1974–1975 |
Aquash works for AIM and participates in many activist actions alongside Native Peoples in Canada and the United States. She is arrested multiple times and faces charges related to weapon possession and subversive activities. Aquash has established herself in the inner circles of the AIM leadership. |
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1975 |
Because of sustained federal government efforts to break up AIM, some in AIM believe that Aquash is an informant. |
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1975 |
November. While in Denver, she is kidnapped from a safe house and brought to South Dakota, where she is interrogated. In late November or early December, she is shot and believed to have been executed by AIM members. |
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1976 |
February 24. Anna Mae Aquash’s body is discovered at the bottom of a cliff in the Pine Ridge Lakota reservation, with a bullet in the back of her head. |
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2004 |
Arlo Looking Cloud and John Graham, members of AIM, are convicted of the Aquash murder in 2004, though many close to the case believe that others in AIM were involved. |
The Death of an American Indian Activist, Anna Mae Aquash
Anna Mae Aquash, born Annie Mae Pictou was a Mi’kmaq woman who worked through the 1960s and early 1970s as an activist for American Indian political, gender, and educational justice. Her life was dedicated to efforts to recognize Native land and cultural rights, and she was a committed member of the American Indian Movement (AIM). Aquash was born on March 27, 1945, in Shubenacadie, Nova Scotia, Canada. She grew up on the Mi’kmaq reservation with her mother, Mary Ellen Pictou, her stepfather, Noel Sapier, and her brother and two sisters, Francis, Mary, and Rebecca. Throughout her childhood and adolescence, Aquash experienced the hardships of poverty that were common to reservation life. She and her siblings struggled with poor housing, no electricity or plumbing, and insufficient food. Under these harsh conditions, Aquash developed tuberculosis at age eight. Despite being a very strong student, she dropped out of elementary school, demotivated by the blatant racism she faced as an Indian child in the Canadian educational system, and also so that she could help her family by taking low-wage agricultural work in nearby potato fields and berry patches. Despite the challenges of poverty, her upbringing was culturally rich, and Aquash grew up under the strong influence of Mi’kmaq traditions.
At age 17, Aquash moved from the reservation to Maine, where she did factory work. She then moved to Boston with the man who became her first husband, Jake Maloney, also a Mi’kmaq tribal member. In the seven years between 1964 and 1971, while moving among Boston, Maine, and New Brunswick, Aquash gave birth to two daughters, Denise and Deborah. During this time, Aquash began a lifelong interest in how both formal education and tribal cultural education could empower Indian youth. Aquash was committed to assisting Indian youth with overcoming the frustrations of urban poverty and racism, and she sought to promote the importance of tribal traditions like those she had grown up with. Aquash increased her understanding of Native rights and history through the influence of Mi’kmaq Chief Peter Barlow of Indian Island, New Brunswick, Canada. Aquash became active in providing social and educational services for a number of Native communities. In Boston, while Aquash worked as a seamstress, and as a childcare worker in the African American community of Roxbury, she also helped to found the Boston Indian Council. Aquash continued to advocate for Indian youth, education, and social services and worked in a school for Native teens in Bar Harbor, Maine.
Sidebar 1: Mi’kmaq History and Culture
Located primarily in Nova Scotia and New Brunswick, the Mi’kmaq peoples are the original inhabitants of the Atlantic Provinces, or Maritimes, of Canada. Mi’kmaq tribal members can also be found throughout Newfoundland, Québec, Maine, and Massachusetts, and the Mi’kmaq are members of the Wabanaki Confederacy along with the Maliseet, Passamaquoddy, Penobscot, and Abenaki peoples. The Mi’kmaq have occupied their traditional lands for more than 10,000 years. There is evidence that the Mi’kmaq were in contact with European fisherman, explorers, and traders from at least the 1500s. Mi’kmaq cultural traditions are based around respect for their land and environment, and the relationships between and among humans and the natural world that allowed their communities to flourish in harmony with the rhythms of the forests, seas, and seasons. The land base allowed the Mi’kmaq to hunt, fish, and gather plants and plant medicines to meet their needs. Families lived in communities of wigwams, organized by a Grand Council and led by a chief. In the past, chiefs were selected by prestige; today, both men and women can stand for tribal chief, an elected position. The Mi’kmaq are famous for their porcupine quill artisans as well as beadwork, basket making, and wampum beading. Sweat lodges and storytelling are important parts of Mi’kmaq ceremonial life, and Glooskap is a major figure in Mi’kmaq mythology.
Native activism was reborn in the 1970s with the Lakota protest of the desecration of Native sacred land at Mount Rushmore and simultaneous with the political and social change and upheaval reflected by the anti-war, African American civil rights, and Chicano farm worker social justice movements. The American Indian Movement, better known as AIM, was born out of a movement to improve Native prison justice and to protest police brutality actions of the 1970s. Aquash actively participated in some of AIM’s most important national political events including the anti-Thanksgiving National Day of Mourning at Plymouth, Massachusetts in November 1971, the Trail of Broken Treaties and the occupation of the Bureau of Indian Affairs (BIA) in Washington, D.C., in the Summer of 1972, the 71-day occupation of Wounded Knee, South Dakota in February through April of 1973, and the one-month occupation by the Menominee Warrior Society of the Alexian Brothers’ Novitiate in Gresham, Wisconsin in 1975. Aquash became a member of AIM and participated in these actions and others, sometimes accompanied by her young children or alongside Nogeeshik Aquash, an Ojibwa political activist, whom Aquash married in a traditional Lakota ceremony during the AIM occupation of Wounded Knee.
Sidebar 2: Urban Indian Youth Education
Life on Indian reservations was always a challenge as reserves were established to make it difficult for Native People to own working land, find employment, or maintain their cultural traditions. Levels of poverty were shockingly high, and basic services, especially housing, health, education, and recreation, were substandard or nonexistent. It became increasingly common for some Native People to migrate from the reservation to major cities for the majority of the year, and to return only periodically to their home reservations. Over the decades, there have been successive waves of outmigration from reservations. Under the Indian Relocation Act of 1956, the Eisenhower administration initiated a removal effort to persuade American Indians to leave reservations for urban areas, where they were promised housing and employment opportunities that did not often materialize. In the 1960s, Indian youth, especially, were attracted to urban areas because of the opportunities for work, education, and decent housing. While some of these opportunities existed, Native youth were also met with the urban realities of alcohol, drugs, crime, and American society’s racist discrimination towards Native Peoples. One response to the marginalization of urban Indian youth in the 1970s was the establishment of culturally oriented schooling. Aquash was at the forefront of this movement as she had been raised within the linguistic and cultural traditions of Mi’kmaq tribal life, and understood firsthand how these traditions might be used to educate and empower Native youth. She was involved with some of the earliest efforts to promote Native education and culture through the Boston Indian Council that continues as the North American Indian Center of Boston; the Teaching and Research in Bicultural Education (TRIBE) school established from 1970 to1972 by the Wabanaki in Bar Harbor, Maine; and, the Red School House survival schools that were set up in Minneapolis/St. Paul by AIM under Title IV of the 1972 Indian Education Act, as alternatives to the public, BIA, boarding, and religious schools normally available to Native youth. See also Davis, Julie L. Survival School: The American Indian Movement and Community Education in the Twin Cities. Minneapolis: University of Minnesota Press, 2013.
The smuggling from the BIA in 1972 of documents that detailed systematic racism against Native communities and that were incriminating to the federal government, as well as the killing of two Federal Bureau of Investigation (FBI) agents on the Pine Ridge Reservation in 1975, brought AIM into sustained conflict with the federal government. Members of AIM saw a campaign of persistent harassment of members and purposeful destabilization of the movement. The undermining of AIM was escalated in part through infiltration of the organization by government operatives and informers, and the planting of disruptive rumors of internal spying within AIM membership. During these years, Aquash was influential in AIM’s organizing and fundraising for the legal defense of their membership, and she continued her dedication to the education of Native youth, and the promotion of Native pride, land rights, culture, and language. As a prominent member of AIM, Aquash was vulnerable to government persecution and she fell victim to the government’s destabilization tactics. Some people believe that Aquash was falsely accused of being an informant, and that certain members of AIM, the BIA, and agents from the FBI had worked together in arranging to have her murdered.
Rebecca Julian, left, Anna Mae Pictou Aquash’s eldest sister, and Aquash’s eldest daughter, Denise Maloney, hold a portrait of Aquash (Mi’kmaq), June 20, 2003, at Shubenacadie, Nova Scotia. AIM activist Aquash was killed in late 1975 on the Pine Ridge Indian Reservation. In 2004 and 2010 two AIM members were convicted for her murder. (AP Photo/Carson Walker)
In the months preceding her death in the fall of 1975, Aquash was arrested twice and traveled among Minnesota, South Dakota, California, Washington, Canada, and Colorado as a fugitive. While in Denver in November 1975, she was kidnapped from a safe house and taken to South Dakota, where she was interrogated and executed by AIM members. She was 30 years old. Aquash’s body was discovered in a ravine near a ranch in a remote part of the Pine Ridge reservation in February 1976. Her death was originally attributed to exposure, and she was hastily buried. However, in a subsequent postmortem requested by her family, it was determined that she had been executed by a single bullet to the back of her head and likely killed in late November or early December of 1975. The exact circumstances around the murder of Aquash remain shrouded in uncertainty, despite the fact that two AIM members—Arlo Looking Cloud and John Graham—were convicted of the Aquash murder in 2004, and the case was considered closed in 2010. There remains uncertainty about the facts of the murder, and for her family members the ultimate responsibility for Aquash’s murder remains unresolved. In June 2004, the body of Anna Mae Pictou Aquash was brought home to her family and community in Nova Scotia, and she was provided with a traditional Mi’kmaq ceremonial burial on the Indian Brook First Nation land, befitting her standing as a Native woman warrior and activist.
DOCUMENT EXCERPTS
Arlo Looking Cloud’s Murder Conviction Is Upheld in Appeals Court
In 2005, Arlo Looking Cloud appealed his conviction for Anna Mae Aquash’s murder (also convicted was John Graham) in the United States Court of Appeals, Eighth Circuit. The first paragraph describes Looking Cloud’s reasons for appealing the conviction, but the court upheld the conviction in an opinion written by Judge John R. Gibson.,
Fritz Arlo Looking Cloud appeals his conviction for the first degree murder of Anna Mae Aquash following a jury trial. His grounds for appeal are: (1) admission of irrelevant, prejudicial evidence; (2) admission of hearsay and an improper limiting instruction; (3) ineffective assistance of counsel; and (4) insufficient evidence to support his conviction. The district court 1 sentenced him to life in prison. We affirm.…
Looking Cloud’s final argument is that the evidence at trial was not sufficient to support his conviction and the district court erred in rejecting his motion for judgment of acquittal. The jury convicted Looking Cloud of first degree murder or of aiding and abetting that murder under 18 U.S.C. §§ 1111 and 1153. The elements Looking Cloud disputes are (1) that he killed or aided and abetted in the killing of Aquash; (2) that he did so with malice aforethought; and (3) that the killing was premeditated.
We review the sufficiency of the evidence de novo and will reverse a conviction only if, after viewing the evidence in the light most favorable to the jury’s verdict and giving the government the benefit of all reasonable inferences that may be drawn from the evidence, no construction of the evidence will support the jury’s verdict. See United States v. Simon, 376 F.3d 806, 808 (8th Cir. 2004). Either direct or circumstantial evidence may provide a basis for conviction; adducing direct evidence at trial is not a requirement. Id.
The evidence adduced at trial was as follows. The testimony established that nearly twenty members of the American Indian Movement suspected Aquash was an informant or had at least heard the rumor. Darlene Nichols, who joined the Movement in 1972 and had been an active member, testified that several members, one of whom had already threatened Aquash’s life because he suspected she was an informant, took Aquash away for weeks to “watch her.” Nichols said that Aquash was constantly watched, was not allowed to go anywhere alone, and was not permitted to go home despite her requests to do so. Mathalene White Bear, another former member who provided shelter to Aquash in 1975, testified that Aquash believed her life was in danger as early as September of that year.
In November 1975, Aquash left Pierre and went to Denver, where she stayed in the home of a Movement member. Other Movement members frequently gathered at this house. Several members held a meeting at the house in November 1975 because they had received a phone call saying that Aquash was an informant and needed to be taken to Rapid City, South Dakota. The group decided Looking Cloud, Clark, and Graham would take Aquash to Rapid City. Janis testified that those three carried Aquash to the car against her will, crying; her wrists were bound and she was tied to a board and unable to walk on her own. They put her in the back end of a hatch-back Pinto and drove to Rapid City. After meeting with more American Indian Movement members at the Wounded Knee Legal Defense/Offense Committee house in Rapid City, they drove Aquash to Rosebud. Yellow Wood said that Looking Cloud stayed with Aquash in the car while Graham and Clark went into a house. There, Aquash begged to be let go and told Looking Cloud that the others were inside deciding her fate and were probably going to make him pull the trigger. John Trudell, chairman of the American Indian Movement from 1973–1979, testified that Looking Cloud, Graham, and Clark were not decision-makers for the American Indian Movement, and that the group did not make but rather received orders to kill Aquash before they left the house in Rosebud. The jury could reasonably infer from Looking Cloud’s participation in carrying Aquash out to the car, tied to a board, that he knew they were going to kill her. In further support of that inference was evidence that Aquash also knew in advance that she was going to be killed. Aquash mailed a ring back to White Bear before she died; it was a signal the two friends had previously arranged so White Bear would know something had happened to Aquash.
Trudell testified that Looking Cloud told him that when Graham and Clark returned to the car for the last time, Aquash cried and begged them not to kill her. They drove to an area near Wanblee and parked the car. Yellow Wood testified that Looking Cloud told him that Aquash continued to cry, pray, and beg for her life as they forced her out of the car and marched her up the hill to a cliff. Two Elk testified that Looking Cloud told him he handed a gun to Graham and nodded at him. Aquash knelt to the ground, possibly to pray, and Graham held the gun to the back of her head and pulled the trigger. Afterwards, the three buried the gun under a bridge nearby.
From the testimony, the jury could reasonably infer that from the time the car left the house in Rosebud, Looking Cloud understood that the plan was to kill Aquash. Although Looking Cloud told others that Graham pulled the trigger, and the government introduced no evidence to the contrary, the jury could at least reasonably believe that Looking Cloud helped force Aquash out of the car and up the hill and that he assisted in the murder by handing the gun to Graham to shoot and kill Aquash. This constitutes sufficient evidence to support the jury’s finding that Looking Cloud killed or aided and abetted in the killing of Aquash, with malice aforethought, and that the killing was premeditated.
We affirm the district court’s judgment of conviction.
Source: United States of America, Plaintiff-Appellee, v. Fritz Arlo LOOKING CLOUD, Defendant-Appellant. No. 04-2173. Decided August 19, 2005.
See also: American Indian Movement, 1968
Further Reading
Annie Mae Pictou Aquash. American National Biography Online. Accessed February 27, 2016. http://www.anb.org/articles/15/15-01365.html
Brand, Johanna. The Life and Death of Anna Mae Aquash. Toronto: James Lorimer, 1978.
Konigsburg, Eric. “Who Killed Anna Mae?” New York Times Magazine, April 25, 2014. Accessed November 1, 2015. http://www.nytimes.com/2014/04/27/magazine/who-killed-anna-mae.html?_r=0
Mihesuah, Devon A., Denise Maloney-Pictou and Deborah Maloney-Pictou. “Interview with Denise Maloney-Pictou and Deborah Maloney-Pictou.” American Indian Quarterly 24, No. 2 (Spring 2000): 264–278.
Mihesuah, Devon A. “Anna Mae Pictou-Aquash: An American Indian Activist.” In Sifters: Native American Women’s Lives, edited by Theda Perdue, 204–222. New York: Oxford University Press, 2001.
Poliandri, Simone. First Nations, Identity, and Reserve Life: The Mi’kmaq of Nova Scotia. Lincoln: University of Nebraska Press, 2011.
The Spirit of Annie Mae. Documentary. DVD. Directed by Catherine Anne Martin. Montréal: National Film Board of Canada, 2002.
Weir, David and Lowell Bergman. “The Killing of Anna Mae Aquash.” Rolling Stone (April 7, 1977): 51–55.
Witt, Shirley Hill. “The Brave-Hearted Women: The Struggle at Wounded Knee.” Civil Rights Digest 8 (Summer 1976): 38–45.
United Nations Working Group on Indigenous Populations, 1982
Nikki Dragone
Chronology of Events
1960 |
U.N. Declaration on the Granting of Independence to Colonized Countries and Peoples. |
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1966 |
U.N. adopts the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. |
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1971 |
The Economic and Social Council authorizes the Sub-Commission to initiate a study on “Problem of Discrimination against Indigenous Populations.” Study is undertaken by Special Rapporteur Jose R. Martinez Cobo. |
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1974 |
World Council of Indigenous Peoples is established and obtains NGO consultative status. |
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1975 |
International Indian Treaty Council is established and obtains NGO consultative status. |
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1977 |
NGO-sponsored Conference on Discrimination against Indigenous Peoples in the Americas. |
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1980 |
Fourth Russell Tribunal on the Rights of the Indians of the Americas. |
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1981 |
International NGO Conference on Indigenous Peoples and the Land. Recommendations based on this conference include establishing a more permanent forum at the U.N. for indigenous peoples. |
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1981 |
Based on his ongoing study, Special Rapporteur Cobo recommends the establishment of a more permanent forum at the U.N. for indigenous peoples. |
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1982 |
The Working Group on Indigenous Populations is established and holds its first meeting in Geneva, Switzerland. |
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1985 |
United Nations Voluntary Fund for Indigenous Populations is established. |
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1985 |
The Working Group on Indigenous Populations begins drafting a universal declaration on the rights of indigenous peoples. |
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Special Rapporteur Cobo finishes his five-volume study. |
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1989 |
ILO adopts Convention No. 169 on Indigenous and Tribal Peoples. |
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1993 |
The Working Group finalizes and submits the draft Declaration on the Rights of Indigenous Peoples to the Sub-Commission. |
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1994 |
The Sub-Commission approves the draft Declaration and submits it to the Commission on Human Rights. |
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1995 |
The Commission on Human Rights establishes an inter-sessional Working Group to review the draft Declaration. |
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2000 |
The United Nations Permanent Forum on Indigenous Issues is established. |
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2001 |
The Special Rapporteur of Human Rights and Indigenous Issues is established. |
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2006 |
The Human Rights Council approves the draft Declaration and submits it to the U.N. General Assembly for its approval. Based on a petition filed by Namibia on behalf of the African nation-states, the General Assembly tables the vote on the draft Declaration until the 61st session. |
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2007 |
The Working Group on Indigenous Populations holds its final meeting. It is replaced by the newly established Expert Mechanism on the Rights of Indigenous Peoples. |
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September 13, 2007 |
The U.N. General Assembly adopts the Declaration on the Rights of Indigenous Peoples. |
Introduction
On September 13, 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples. The original draft Declaration, which recognizes the rights enjoyment of individual and collective human rights of indigenous peoples in both their daily and communal lives, was born out of 11 years of negotiations among indigenous representatives, state government representatives, and human rights experts serving as members of the United Nations Working Group on Indigenous Populations. Established in 1982, the Working Group on Indigenous Populations (also known as the Working Group or WGIP), was the first formalized body within the United Nations that provided a forum for indigenous peoples to speak for themselves, to tell their own stories about the often violent abuse of their human rights, and to tell these stories in a way that enabled them to redefine the terms of their own survival as peoples. To understand why the WGIP is an important benchmark in American Indian history, this chapter will explore innovations in the composition of the Working Group that set it apart from other human rights bodies in the U.N. system; the WGIP’s mandate to review developments concerning the protection and promotion of indigenous rights and to draft an international standard; and its continued legacy.
Japanese members of Ainu Association of Hokkaido listen to speeches during the opening session of the UN Working Group on Indigenous Populations in Geneva, Switzerland, 2004. Over 1,000 representatives of indigenous peoples and communities from around the world joined government delegates, non-governmental organizations, and United Nations agencies in Geneva for the largest international meeting on indigenous peoples’ rights. (AP Photo/Keystone/Laurent Gillieron)
Between 1960 and 1981, a series of events transpired that led to the establishment of the Working Group on Indigenous Populations. The first of these events was the codification of the peoples’ right to self-determination in Article 1 of two U.N. human rights treaties ratified in 1966: the International Covenant (treaty) on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. By implementing the right of self-determination, colonized peoples in Africa and other parts of the world became independent self-governing nations. Self-determination became a major rallying point around which indigenous peoples unified in their own struggle for the protection of their collective human rights as distinct peoples. Throughout the 1960s and 1970s, indigenous peoples and organizations became more active at U.N. human rights bodies and conferences. Consequently, in 1971, the U.N.’s Economic and Social Council (ECOSOC) authorized the “Study of the Problem of Discrimination against Indigenous Populations” (the Cobo Study). This study called for the establishment of a U.N. forum on indigenous issues, as did the indigenous delegates who attended both the 1977, NGO Conference on Discrimination against Indigenous Peoples in the Americas and the 1981 NGO Conference on Indigenous Peoples and the Land. Thus, in 1981, the U.N. authorized the establishment of the Working Group of Indigenous Populations.
1982–1985: Innovations in the WGIP’s Structure and Composition
Established as a subsidiary body of the Sub-Commission on the Prevention on Discrimination and Protection of Minorities (hereinafter called the Sub-Commission), the WGIP held its first session at the U.N.’s Geneva, Switzerland, headquarters from August 9 through August 13, 1982. With the exception of 1986, when the U.N.’s financial crises temporarily suspended the work of the Sub-Commission and all its subsidiary bodies, the WGIP met annually until 2006. Their yearly meetings, ranging from five to ten days in duration, were held just prior to the Sub-Commission’s meetings (Pritchard 1998, 41).
The question remains, what exactly was the Working Group on Indigenous Populations? First of all, it was a subsidiary body of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. As such, it functioned at the lowest level of the U.N.’s hierarchy of human rights bodies. This means any recommendations, reports, and standards authored by the WGIP required approval by the Sub-Commission, the Commission on Human Rights (CHR), and ECOSOC before being passed on to the U.N. General Assembly (Pritchard 1998, 42). Second, as with other Working Groups organized under the Sub-Commission, the WGIP was composed of only five members, one from each of the following regions: Africa, Asia, Eastern Europe, Western Europe and Others (WEO), and Latin America. The “others” of the WEO region include Australia, Canada, New Zealand, and the United States (Sanders 1994). While the WGIP’s members were drawn from the Sub-Commission, they were considered to be independent experts because they served in their capacity as international law experts independent of any political status they might have as representatives of their nations. They were appointed to two-year terms; however, incumbent members had an “unspoken right” to retain their seats (Sanders 1994).
The annual sessions of the Sub-Commission’s various Working Groups were formal, highly structured events. Without access to independent sources of information to complete their mandates, most working groups rely on reports and studies submitted by government representatives, specialized agencies, inter-governmental organizations, and NGOs. Additional information could be submitted through oral statements and written interventions of the observers, like NGOs and state representatives, whose status permitted them to attend and participate in annual sessions (Maiguascha 1990, 31–32). However, due to the formalized structure of these meetings, observer participants were required to maintain proper decorum. Consequently, the member elected as the chairperson strictly mediated meetings. It was his or her responsibility to ensure that speakers adhered to specific time limits and to rule out of order those oral statements, written interventions, or dialogue that might be considered irrelevant or cumulative (Williams 1900, 677).
At the time of the WGIP’s first session in 1982, only three of the 14 indigenous organizations in attendance had obtained NGO consultative status: WCIP, IITC, and the Indian Law Resource Center. Their attendance resulted in what is arguably the most important innovation introduced to the U.N. system by the WGIP. Indeed, after consulting with the indigenous representatives present, the WGIP’s first chairman, Asbjørn Eide, determined that in order to complete the two tasks ECOSOC entrusted to the WGIP the WGIP, “the best possible experts” were needed. Over the protestations of some state representatives, Eide concluded that the “best possible experts” were indigenous representatives. Indigenous representatives were not only allowed to attend and to speak to the WGIP, but they also were empowered to submit interventions, working papers, reports, and proposals (Eide 2007, 45–46). Thus, completely breaking with U.N. tradition, the WGIP was opened up to all possible participants.
Though the numbers of attendees do not indicate it, the fact that the WGIP held its annual sessions in Geneva made it difficult for indigenous diplomats and leaders from less financially solvent communities or third-world nations to attend these meetings. The truth is even the delegates from Canada and the United States had difficulty obtaining the funds necessary to cover the annually incurred costs of travel or food and lodging in Geneva. Many indigenous leaders were able to attend only because of what one indigenous representative described as the “random acts of kindness” of non-indigenous persons and organizations (Henderson 2008, 42). Recognizing that Chairman Eide was right in opening the WGIP up to full participation by indigenous peoples, in 1985, the U.N. General Assembly established the “Voluntary Fund for Indigenous Peoples” to cover travel costs for the more financially disadvantaged indigenous representatives. Within its first four years, the Voluntary Fund ensured the participation of 39 indigenous representatives from over twenty countries (Maiguascha 1994, 32). By the date of the WGIP’s final meeting in 2006, nearly 100 travel grants were awarded to disadvantaged male and female indigenous representatives attending U.N. meetings (Eide 2008, 46).
Due to these two innovations, the WGIP became the most active and heavily attended Working Group in U.N. history. In 1982, a total of 30 observer participants attended the WGIP’s first session. By 1993, nearly two-thirds of the representatives attending the WGIP were from Latin America, the Soviet Union, South East Asia, and the Pacific. By 1999, some 971 people attended the WGIP. The following year, representatives from 45 states and 248 indigenous and non-indigenous groups attended, a total of 1,027 people. Even after it was determined that a permanent U.N. body was to be established to replace the WGIP, over 580 people attended the Working Group’s final meeting in 2006 (“Working Group on Indigenous Populations”).
1982–1993: Working Group’s Mandate to Review Indigenous Rights Developments
During its first few years, the WGIP worked solely on the first of two mandated tasks: reviewing the developments regarding the human rights of indigenous peoples. It is important to note that this part of their mandate did not authorize the WGIP to examine concrete complaints and allegations of indigenous peoples and organizations against nation-states or vice versa. Nor did it authorize the WGIP to issue recommendations for state action or to issue court-like decisions based on allegations. With this in mind, the WGIP was authorized solely to collect the information necessary to fulfill the second part of their mandate: drafting a set of international standards on indigenous rights.
The information gathered by the WGIP came from a variety of sources, including studies on specific issues completed by the members of the WGIP themselves. One example of this is the study Miguel Alfonso Martinez completed in 1999 on “Treaties, Agreements and Constructive Arrangements between States and Indigenous Peoples.” Additionally, the WGIP received reports from governments, intergovernmental bodies, NGOs, and other U.N. bodies. Finally, they received information through the oral statements and written interventions submitted by observer participants to their annual meetings.
The oral interventions and review of written statements and reports resulted in quite a bit of dialogue among observer participants. As their shared grievances often painted terrifying portraits of nation-state violations of indigenous rights, it is no surprise that friction and animosity sometimes erupted when indigenous participants’ oral submissions narrated the horrors they endured, and continued to endure, because of state and military policies imposed upon them. These horrors included: genocide, ethnocide, extrajudicial killings, forced removals, expropriation of lands and resources without consent or compensation, and other forms of cultural and religious discrimination (Eide 2007, 41; Henderson 2008, 33). Likewise, when states denounced indigenous peoples as terrorists, denied the veracity of the allegations being lodged against them, or forcefully deflected the allegations by reminding the WGIP that it was not “a chamber of complaints” and, consequently, could not “act upon specific allegations concerning the violations of human rights,” it is no surprise that indigenous delegates often responded with anger (Thornberry 2002, 371). And yet, the WGIP developed into a forum where states could not easily dismiss indigenous concerns as simply the complaints of minority populations disgruntled over government policies. In fact, the innovation that permitted all indigenous persons in attendance to participate fully in the WGIP’s dialogue and debate, transformed it into a forum where indigenous peoples told their stories, and states had to listen.
It goes without saying that there were, and still are, some states who will not hear what indigenous peoples have to say. However, according to Potawatomi lawyer R. Tim Coulter—who attended nearly every WGIP meeting since 1982 in his capacity as the director of the Indian Law Resource Center (an NGO with consultative status)—the stories indigenous delegates shared with the WGIP “brought astonishing changes in the behavior of states” (Rostkowski 2012). For example, state practices and policies became more friendly to indigenous peoples in that outright massacres and politically motivated removals of indigenous peoples in Latin America slowed down. Canada and other settler states revised their policies and practices to be more supportive of the continued survival of indigenous communities as culturally distinct.
Enabling direct participation of indigenous peoples at the WGIP also necessitated a change in the focus on indigenous rights at the international level. Since the Working Group is a subsidiary body of the Sub-Commission, it initially saw indigenous peoples as a type of minority population, which led to the WGIP’s initial focus on investigating the discriminatory practices that prevented indigenous peoples from integrating into the economic, social, and cultural life of the state. However, as the WGIP acted more and more as a forum from which to illustrate the ways state policies and practices curtailed indigenous rights, and states began to take indigenous peoples’ claims more seriously, the WGIP’s focus shifted from protecting indigenous peoples’ rights as minorities to protecting their collective rights to life and self-determination as culturally distinct peoples. This shift is important because it sets the backdrop for the completion of the second part of the WGIP’s mandate (Eide 2007).
In fulfilling its mandate to review developments related to indigenous peoples’ rights by enabling the direct participation of all indigenous attendees, the WGIP facilitated the development of an international indigenous diplomacy network. Indigenous delegates from all over the world traveled to the WGIP’s annual sessions. In many cases, communication necessitated the help of linguistic interpreters. It seemed that the very nature of their vast cultural, spiritual, and historic diversity, precluded consensus and/or unity among indigenous participants. However, as they listened to each other’s stories and participated with each other collectively through the formal and informal indigenous caucuses they created in the Working Group, indigenous participants began to recognize they not only had a shared history of colonial oppression, but also shared many traditional values, including the respect for diversity. For all their diversity, it soon became clear that they were unified in their recognition that all of their other human rights flowed from their collective right, as peoples, to self-determination (Henderson 2008, 48–50).
1985–1993: WGIP’s Mandate to Draft International Standards on Indigenous Rights
In 1985, the WGIP shifted its focus to the second part of its mandate, the drafting of the document that would ultimately become the UN Declaration on the Rights of Indigenous Peoples. As a starting point, the WGIP produced a list of 14 principles to be included in the future draft. While this draft maintained the WGIP’s early focus on the right to equality and freedom from discrimination, it also highlighted the shift in focus toward collective human rights, such as the rights to exist, to be protected from genocide, to maintain ethnic character and identity, and to be protected against state actions that would forcibly assimilate or integrate indigenous peoples into the dominant society (Thornberry 2002, 371; Williams 1990, 682–83). Notably absent from these 14 principles is the right of self-determination. However, Annex I, appended to the report, outlines the WGIP’s “plan of action,” which includes a promise to consider the collective rights of self-determination, sovereignty and autonomy in future WGIP sessions (Thornberry 2002, 371–72). Also appended to the report in Annex III and IV are the World Council of Indigenous People’s Declaration of Principles and NGOs draft Declaration of Principles (authored by a group of indigenous NGOs), both of which clearly state that at the heart of indigenous peoples’ struggle is the collective right of self-determination (Williams 1990, 693).
Two years later, when Chairperson Erica-Irene Daes received her mandate to draft a Universal Declaration of Indigenous Rights, the WGIP elected to adopt the 14 principles into the preliminary wording of the draft. In 1988, Daes drafted a working paper on the proposed Universal Declaration. As with the principles upon which this working paper was based, the right of self-determination still was conspicuously absent. Before the end of the 1988 session, this draft was tabled to allow for the submission of comments by state and indigenous representatives (Sanders 1989, 427).
The first mention of self-determination showed up in the 1989 preamble of the first revised draft, which states that “nothing in this declaration may be used as a justification for denying any people […] their right to self-determination” (qtd. by Thornberry 2002, 372–73). The following year, the WGIP broke down into three drafting groups. As is evidenced by paragraph one of their draft, Group Two offered the strongest support for including the indigenous right of self-determination in the draft Declaration: “Indigenous peoples have the right of self-determination, by virtue of which they may freely determine their political status, freely pursue their own economic, social and cultural development, and determine their own institutions” (qtd. by Thornberry 2002, 373).
By the time the WGIP members approved and submitted their final draft to the Sub-Commission for its approval in 1993, the peoples’ right of self-determination had been interpreted as applying to the specific situation of indigenous peoples. Despite bitter opposition by some of the state representatives who feared that recognizing indigenous peoples as peoples possessed of the full rights of self-determination may adversely impact the sovereignty of states over their lands and resources, the WGIP agreed to incorporate the right of self-determination into the body of the draft Declaration. Article 3 of the WGIP’s draft Declaration read as follows: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (qtd. by Thornberry 2002, 373, 455).
After 11 years of sometimes bitter negotiations among the WGIP’s members, the states, indigenous representatives, NGOs, and other interested parties, the completion of the draft Declaration was a remarkable achievement. In reflecting on the Declaration after its adoption by the U.N. General Assembly on September 13, 2007, Madame Daes remarked, “No other United Nations instrument has ever been elaborated with so much direct participation of its intended beneficiaries” (Daes 2008, 36). Her predecessor, Asbørn Eide, lauded the Declaration as reflecting both “the needs and aspirations of indigenous peoples” and the “concerns of the state” (Eide 2007, 41–42).
1994–2006: The Legacy of the Working Group on Indigenous Populations
Ultimately, the legacy of the WGIP is the Declaration on the Rights of Indigenous Peoples. However, it does not stand alone. In August of 1982, when the WGIP met for the first time, it was the only international human rights forum open to indigenous peoples. By the time the WGIP concluded its final meeting in 2006, there were two other human rights forums dedicated to indigenous peoples: the U.N. Permanent Forum on Indigenous Issues (UNPFII, established 2002) and the Special Rapporteur on the Rights of Indigenous Peoples (established 2001). In 2007, after the U.N. General Assembly adopted the Declaration, a third forum was established, specifically to replace the WGIP. This forum, known as the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), is mandated to provide the Human Rights Council with “thematic expertise” on indigenous peoples’ rights. Like the WGIP, both EMRIP and the UNFPII are open to the participation of all indigenous peoples and organizations. Unlike the WGIP, the experts chosen to serve as members of EMRIP and the UNPFII, and in the position of the Special Rapporteur can be of indigenous origin.
Sidebar 1: U.N. Declaration on the Rights of Indigenous Peoples: 1985–2007
The international instrument today known as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) grew out of the second mandate of the UN Working Group on Indigenous Populations (WGIP). Established in 1982, the WGIP was charged with reviewing developments concerning the protection of indigenous rights and drafting an international standard on indigenous rights. After eight years of working with indigenous representatives, NGOs, and state representatives, in 1993 the WGIP finalized the draft Declaration and submitted it to the U.N. Sub-Commission on the Prevention and Elimination of Discrimination. The Sub-Commission approved the draft Declaration the following year and submitted it to the U.N. Commission of Human Rights (CHR) for their approval. The CHR established an open-ended Inter-sessional Working Group and charged it with resolving nation-states’ concerns and ensuring the adoption of the draft Declaration. For 12 years, the inter-sessional Working Group met annually to discuss the draft Declaration. Limited participation by indigenous representatives and NGOs was allowed. Finally, in June of 2006, the Commission of Human Rights adopted the draft of the Declaration submitted to them by the Inter-sessional Working Group. It was submitted to the U.N. General Assembly. On September 13, 2007, the U.N. General Assembly adopted the U.N. Declaration on the Rights of Indigenous Peoples.
What does all of this mean? It means that the innovations made to the Working Group on Indigenous Populations have had long-lasting effects on the way that the U.N. Human Rights system is organized and the way people gain access to it. It means that the legacy of the WGIP is that indigenous peoples will continue to represent themselves directly, to speak on their own behalf, and to continue to redefine the terms of their own survival by their storytelling at these and other U.N. fora.
Sidebar 2: Content of the UNDRIP
The preamble and 46 articles comprising the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP) outline not only the collective and individual rights of indigenous peoples, but also the actions the U.N.’s nation-state members must take to ensure that indigenous rights are protected. The rights recognized in this international instrument may be grouped together in the following broad categories: (1) foundational rights; (2) life and security; (3) language, cultural and spiritual identity; (4) land, territories, and resources; (5) political and economic rights; (6) education, information and employment. A brief description of some of the rights recognized in this document follows:
Foundational Rights: This section recognizes and protects indigenous peoples’ rights to freely determine their political status and to freely pursue their economic, social, and cultural development; it also protects their rights to free, prior, and informed consent to any decision affecting their lives, lands, and resources.
Life and Security: These rights protect the basic needs of indigenous persons and peoples and help them to feel safe where they are and to be free from genocide, ethnocide, forced assimilation or integration into a nation-state, and/or attempts by state and economic interests to destroy indigenous cultures; the collective rights to live together as a community, a language group, or a nation in accordance with cultural traditions; and to be free of forced removals or relocations without their free, prior, and informed consent.
Language, Cultural, and Spiritual Identity: These rights include freely practicing and expressing one’s culture and language; maintaining, protecting, and developing cultural property; practicing spiritual and religious traditions, in privacy; and revitalizing, using, developing, and passing on indigenous ways of knowing and being.
Political and Economic Rights: These rights protect indigenous peoples’ free participation in the following: the political, social, and economic life of the state; in all decisions affecting them; and in the political, social, and economic life of their own community.
Lands, Territories, and Resources: Indigenous peoples have the right to use and develop their traditionally owned and occupied lands and territories; compensation for lands and resources taken without their free, prior, and informed consent; and a safe, clean environment. They have the right to maintain, control, and protect their cultural heritage, traditional knowledge, science, and technologies.
Robert Tim Coulter (1945–)
Robert Tim Coulter played an extremely vital role with the United Nations Working Group on Indigenous Populations (UN WGIP) in the drafting and adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Additionally, Coulter and the law office/non-governmental organization (NGO) he helped found in 1977 continue to be key players in ensuring the UNDRIP is enforced in both the domestic law of nation-states like the United States and Canada, and in international human rights law. Tim Coulter, a citizen of the Citizen Potawatomi Indian nation, was born in 1945 in Rapid City, South Dakota, to Joseph and Vivian Coulter. He was raised in Norman, Oklahoma. In 1966, Coulter completed his bachelor’s degree at Williams College in Williamstown, Massachusetts. Believing a law degree would enable him to contribute to the political and social activism of the day, Coulter completed his Juris Doctor and was graduated cum laude from Columbia Law School. For the past 46 years, Coulter has used his law degree and considerable experience fighting for the recognition and protection of indigenous peoples’ rights throughout the western hemisphere. He and his wife, Samantha Sanchez, currently reside in Helena, Montana.
While in law school, Coulter engaged with the civil rights movement and fought for the equal and voting rights and social equality of African Americans. In addition, he worked as a military draft counselor. After his graduation, Coulter directed a Maryland-based inmate grievance committee before taking a position as a staff attorney with the Native American Legal Defense and Education Fund. In 1975, Coulter began representing the Onondaga Nation and the Haudenosaunee (the Iroquois Confederacy). The six member nations of the Haudenosaunee Confederacy—Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora—insisted that they were true nations and that appealing to the United Nations (UN) might be the best way to assert their legal rights as a confederacy of nations. According to Coulter’s legal research, they were right. In 1976, when he was asked to help prepare for what would become the 1977 non-governmental organization (NGO)-sponsored conference on Discrimination Against the Indigenous Populations in the Americas, Coulter saw the conference not only as an opportunity to make an international case on behalf of American Indians, but also to improve international law by obtaining recognition of indigenous peoples’ human rights. In preparation for this conference, Coulter worked with Haudenosaunee leaders to draft what became the Declaration of Principles submitted at the 1977 NGO Conference as the delegates’ main proposal. This same Declaration of Principles ultimately served as one of the foundational documents of the UN Declaration on the Rights of Indigenous Peoples.
In 1977, Coulter collaborated with John Mohawk (Seneca), Jose Barreiro (Taino), and Dr. Richard Chase and Dr. Shelton Davis of the Anthropology Resource Center to establish the Indigenous Peoples Network (IPN). This network was quickly extended to other Indian/indigenous writers, professionals, and academics. Using a combination of print and radio communications, computer networking, and data storage, IPN was able to focus considerable attention on violations of indigenous peoples’ human, land, and environmental rights, often effecting immediate relief.
The establishment of the IPN was followed by one of Coulter’s most important contributions to indigenous peoples in the United States and throughout the Western hemisphere. Coulter and fellow attorney Steve Tullberg founded the Indian Law Resource Center (ILRC) in 1978. Originally based in Washington, D.C., the ILRC is a non-profit organization providing legal advocacy for American Indian nations and the indigenous peoples of the Western Hemisphere in protecting their human, land, natural resource, and environmental rights, as well as sovereignty and self-governance. Representing Latin and South American Indians, the ILRC has won favorable rulings before the Organization of American States’ Inter-American Court of Human Rights and Inter-American Commission on Human Rights. In particular, with the help of the ILRC, the Awas Tingni of Nicaragua and the Maya of Belize have had their land rights recognized. As an NGO with consultative status with the UN, the ILRC played a pivotal role in the drafting of the UNDRIP by the Working Group on Indigenous Populations. Collaborating with other NGOs, in 1985 it submitted the Declaration of Principles, a document that harked back to the Declaration submitted to the 1977 NGO Conference and became a foundational document of the UNDRIP.
Within the United States, the ILRC has helped American Indian peoples win many victories, as well. For example, it was instrumental in helping Alaska Native groups to negotiate an agreement for the cleanup of toxins in the Yukon River watershed. It successfully represented the Cheyenne River Sioux in their struggle to have their religious rights at Devil’s Tower protected. Through ILRC advocacy, the Oglala Sioux successfully settle their claims against the federal government for mismanagement of trust funds. Working out of the Helena, Montana, office, Tim Coulter serves as both a member of ILRC’s board of directors and as its executive director.
Coulter’s work with the Native American Legal Defense and Education Fund and the Haudenosaunee, with the group of American Indian leaders and International Law Experts, and with the delegates attending the 1977 NGO Conference not only led to the establishment of the IPN and the ILRC, but also opened the doors for him to make significant contributions in many other arenas. From 1977 to 1978, Coulter served as the acting executive director of the Institute for the Development of Indian Law. He worked on the U.S. Commission on Civil Rights. From 1982 to 1984, he served as the chairperson of the American Bar Association Committee on the Problems of the American Indian, Section of Individual Rights and Responsibilities. In 1985, he became Harvard Law School’s Ralph E. Shikes Visiting Fellow. From 1998 to 2003, he served on the Board of Directors of River Network. He continues to be a member of the American Society of International Law. In 2004, Coulter was elected as a Justice to Citizen Potawatomi Nation’s Supreme Court, allowing him the opportunity to come full circle by giving back to his own nation and its growth and development.
DOCUMENT EXCERPTS WITH INTRO
Declaration of Principles (1985)
The Declaration of Principles was drafted by the following non-government organizations, and submitted to the UN Working Group on Indigenous Populations: Indian Law Resource Center, Four Directions Council, National Aboriginal and Islander Legal Service, National Indian Youth Council, Inuit Circumpolar Conference, and International Indian Treaty Council. This document is important because the ideas contained in it bridge the Declaration of Principles submitted by indigenous delegates in 1977 to the NGO Conference on the Discrimination Against Indigenous Populations of the Americas and the UN Declaration on the Rights of Indigenous Peoples, which was adopted by the UN General Assembly on September 13, 2007.
Source: United Nations. Declaration on the Rights of Indigenous People. September 13, 2007. UN Doc. E/CN.4/Sub.2/AC.4/1985/WP.4/Add.4. Available online at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. Used by permission of the United Nations.
Further Reading
Daes, Erica-Irene. Indigenous Peoples: Keepers of our Past, Custodians of our Future. Copenhagen: IWGIA | International Working Group for Indigenous Affairs. 2008.
Eide, Asbjørn. “Rights of Indigenous Peoples—Achievements in International Law During the Last Quarter of the Century.” Galdu Čá la: Journal of Indigenous Rights. 2007 (4): 41–82.
Henderson, James (Sa’ke’j) Youngblood. Indigenous Diplomacy and the Rights of Peoples. Saskatoon: Pulrich Publishing Ltd., 2008.
Maiguascha, Bice. The Role of Ideas in a Changing World: The International Indigenous Movement 1975-1990. North York: CERLAC/York University. 1994. Accessed January 18, 2008. http://www.yorku.ca/cerlac/documents/Maiguaschca.pdf
Pritchard, Sarah. Indigenous Peoples, the United Nations and Human Rights. London: Zed Books, 1998.
Rostkowski, Joelle. “Robert Tim Coulter, Lawyer, Founder and Director of the Indian Law Resource Center.” Conversations with Remarkable Native Americans. Albany: State University of New York Press, 2012.
Sanders, Douglas. “Developing a Modern International Law on the Rights of Indigenous Peoples.” 1994. Accessed April 24, 2015. http://www.anthrobase.com/Browse/home/hst cache/Developing.doc.htm
Sanders, Douglas. “The U.N. Working Group on Indigenous Populations. Human Rights Quarterly. 1989 (11.3): 406–33. JSTOR.
Selden, Ron. “Determined Law Resource Center Continues to Fight for Justice.” Indian Country Today Media Network.com, June 19, 2003. Accessed June 23, 2015. http://indiancountrytodaymedianetwork.com/2003/06/19/determined-law-resource-center-continues-fight-justice-88914
Thornberry, Patrick. Indigenous Peoples and Human Rights. England: Manchester University Press, 2013.
Williams, Robert A., Jr. “Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World.” Duke Law Journal. 1990: 39.4: 660–704. JSTOR.
“Working Group on Indigenous Populations.” United Nations Human Rights | Office of the High Commissioner for Human Rights. Accessed April 30, 2015. http://www.ohchr.org/ EN/Issues/IPeoples/Pages/WGIP.aspx
The Election of Chief Wilma Mankiller, 1983
Daniel Winunwe Rivers
Chronology of Events
1945 |
Wilma Mankiller born in Tahlequah, Oklahoma. |
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1956 |
The Mankiller family relocates to San Francisco under a postwar federal Indian relocation plan designed to facilitate tribal termination. |
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1963 |
Wilma Mankiller marries Hugo Olaya, with whom she will have two daughters, Felicia and Gina. |
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1969 |
Alcatraz Island in the San Francisco Bay is occupied by a group of Native American activists, the Indians of All Tribes, calling for increased tribal sovereignty and a recognition of the long pattern of breaking treaties on the part of the federal government. |
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1977 |
Wilma Mankiller and her two daughters move to Oklahoma, and Mankiller begins working on economic development for the Cherokee Nation. |
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1981 |
The Bell Community Revitalization Project begins. |
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1983 |
Wilma Mankiller is elected Deputy Chief of the Cherokee Nation. |
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1985 |
Ross Swimmer resigns, and Wilma Mankiller becomes Principal Chief of the Cherokee Nation. |
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1987 |
Wilma Mankiller is elected Principal Chief. |
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1991 |
Wilma Mankiller is re-elected for a third term and receives 82.5 percent of the vote. |
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2010 |
April 6. Wilma Mankiller dies at home at the age of 64, in Adair County, Oklahoma. |
The Election of the First Woman Chief of the Cherokee Nation, Wilma Mankiller
In 1983, Wilma Mankiller was elected deputy chief of the Cherokee Nation. She was the first woman to hold this position. When the man who had chosen her as his running mate, Principal Chief Ross Swimmer, took a federal position in 1985, Mankiller became the first female Principal Chief of the Cherokee. She ran for the office herself in 1987 and won. In all, Wilma Mankiller served three terms as Principal Chief, from 1985 to 1995. Her election and subsequent political work is an important element of the emergence of feminist Native American political perspectives in the later half of the twentieth century. She also represents the increasing power of tribal self-government and the impact of the Red Power movements of the late 1960s and 1970s on a generation of Native American politicians and activists.
Chief Wilma Mankiller (1945–2010) served as principal chief of the Cherokee Nation of Oklahoma from 1985 to 1995. Mankiller grew up in rural poverty in Stillwell, Oklahoma, and her family moved to the Bay Area of California when she was 11. Mankiller was inspired by the occupation of Alcatraz Island in 1969 and returned to Oklahoma in 1977 to work for her tribe. (AP Photo)
Wilma Mankiller was born in November 1945. Her mother, of Dutch-Irish descent, and her Cherokee father married in 1937, and Mankiller was the sixth of their eleven children. She spent her early years on the allotment land of her grandfather, John Mankiller; he received the 160-acre plot in eastern Oklahoma after federal laws mandated the sale of communally held tribal property. The Mankiller family had then settled on these lands in the first decade of the twentieth century. In 1957, Wilma Mankiller’s life was turned upside down when she moved with her family to the San Francisco Bay Area as part of a government-approved urban relocation program. This diasporic migration politicized Mankiller, as it did a generation of Native Americans within the United States. After being deeply affected by the emergence of radical Native American rights activism in the Bay Area in the late 1960s, especially the takeover of Alcatraz Island by the tribes of All Nations in 1969, Mankiller would become one of the most important indigenous feminist leaders of the twentieth century.
The political and intellectual work and influence of Wilma Mankiller was grounded in her Cherokee tradition and the history of the forced march that cost a quarter of tribal members their lives—a brutal military occupation and ethnic cleansing known as the “Trail of Tears.” This forced migration pushed the Cherokees off their southeastern Appalachian land to that of Mankiller’s childhood, eastern Oklahoma. The Cherokees and other removed tribes would again face government and military intervention in the late 19th century as a result of the Dawes and Curtis Acts. By the first decade of the twentieth century, federal mandates had broken their land into privately held allotments, and in 1907 Oklahoma became a state.
Mankiller grew up in the eastern portion of the state of Oklahoma, in a community she described as deeply shaped by the Cherokee values and ethics of “reciprocity and a sense of interdependence” (Mankiller, “Introduction” 2008, xv). For Mankiller and others, these values connect indigenous cultures and distinguish them from the market capitalism of settler colonial nations.
Before the widespread adoption of European values and the forced marches to the west, the Cherokee people had been a matrilineal, matrilocally organized society. Women were in charge of agriculture and manufacturing, were the primary property owners, and held significant political authority in Cherokee councils. The worlds of men and women were sharply divided in a form of gender complementarity but were not unequal. This sense of partnership in difference coincided with a Cherokee belief in the importance of measured balance. Within this framework, strong Cherokee women were celebrated. Mankiller herself and Cherokee historians like Theda Perdue have identified the importance of the role of women and of the idea of the Beloved Woman in Cherokee culture (Perdue 1998, 18–59; Mankiller and Wallis 1993, 19; Janda 2007, 102–03).
Cherokee women clearly had complex and critical political, military, spiritual, and social power prior to the early 19th century—a power that was grounded significantly in their central role in the cultivation and celebration of corn, including the Green Corn Dance ceremony (Perdue 1998, 25). However, as Cherokee society was increasingly affected by interaction with Anglo-European society, women’s position within the tribe suffered. By the early years of the 19th century, American Christian missionaries had made significant inroads into Cherokee society. A small minority of the Cherokee elite had even embraced the planter culture of the Southeast, including rigidly patriarchal gender roles, slave owning, and plantation agriculture. Within this milieu, Cherokee women faced the rapid decline of their social and political influence (Perdue 1998, 115–58). Indeed, by the time Wilma Mankiller first took the role of Principal Chief of the Cherokee, becoming the first female chief of the tribe, she faced overt sexism and resistance to the idea of a female leader of the Cherokee Nation (Mankiller and Wallis 1993, 240–41).
The nineteenth-century laws of the Cherokee Republic, formed in 1809, diminished women’s previous power within the tribe. Influenced by the governmental structure of the United States, the Cherokee elite eliminated the traditional roles of women in tribal affairs. The new laws replaced the traditional clan system and matrilineal traditions with a set of regulations that declared that property would pass from parents to their children, weakening women’s control over family and property. The emergence of a national government meant that local town councils, where women had contributed significantly to political discussion, lost power. By 1826, the Cherokee General Council explicitly excluded women from a constitutional convention. The resulting constitution then denied suffrage to women, marking their final loss of political power (Perdue 1998, 135–58).
Support for these legal changes largely came from the elite class among the Cherokees, who had gradually adopted Anglo-American plantation agriculture, slave owning, and patriarchal gender roles. Many of the Cherokees also thought adoption of Anglo-American governmental, economic, and religious practices would convince the United States government to allow them to remain in their homeland in modern-day Georgia and Tennessee. This, however, was not the case, and pressure to force the Cherokees off their land grew in direct defiance of earlier treaties. By the mid-1830s, both the United States government and the state of Georgia were pressuring the Cherokees to give up their land and relocate to the west.
In this period, a split deepened within the Cherokee Nation. On one side were the vast majority of the Cherokees and the tribe’s leader, John Ross, for whom removal from the Cherokee homeland was unthinkable. On the other side was a faction that believed removal was inevitable and that the Cherokees should agree to it to prevent destruction and cultural dissolution at the hands of Georgia settlers. This pro-removal faction was led by a Cherokee plantation owner, Major Ridge, his son, John Ridge, and his nephew, Elias Boudinot, the editor of the Cherokee Phoenix. In the face of massive waves of Georgia settlers emboldened by state legislation permitting white winners of a land lottery to take the land and property of the Cherokees, and President Andrew Jackson’s elimination of any legal recourse, distrust and conflict grew between John Ross and the Ridge faction. On December 29, 1835, in this chaotic environment, and convinced that they had to leave for the west, the Ridge faction signed the Treaty of New Echota—surrendering all Cherokee lands and agreeing to be removed to the west—without the approval of the Cherokee people, the vast majority of whom did not wish to leave their land (Perdue and Green 2007, 91–115).
Sidebar 1: President Andrew Jackson’s Attacks against the Cherokees
In 1828, Andrew Jackson was elected president of the United States. Jackson had grown up in a poor, white community in backwoods North Carolina and virulently hated Native Americans. He saw them as enemies to white settlement in the American Southeast and regularly went on raids to kill Cherokee warriors while working as a rural Tennessee attorney. (Remini 2001, 7–49). His election to the presidency meant that the removal of the Cherokees from their land to facilitate white settlement of the region became a national priority. Calls for Cherokee removal were also strengthened significantly by the discovery of gold in the Cherokee Nation by miners from Georgia. In 1830, with Jackson’s encouragement, the United States Congress passed the Indian Removal Act, which gave the president the power to remove and relocate any tribe east of the Mississippi to land set aside for that purpose in the West.
The Cherokee fought this alienation from their homelands diligently, under the leadership of their Principal Chief, a mixed-blood Cherokee man named John Ross, who opposed removal, spoke English fluently, and believed the Cherokee’s fate lay in using the American legal system to fight for their rights under treaty. For the case of Cherokee sovereignty and treaty law, the Supreme Court, under Chief Justice John Marshall, ruled in favor of tribal sovereignty, declaring that under treaty the Cherokees were a distinct and separate nation that held the right of autonomy over their own territory. This argument was in direct contradiction to the rights of removal and relocation given to the president by the Indian Removal Act (Perdue and Green 2007, 59–89).
President Andrew Jackson’s response to the decision in Worcester v. Georgia was one of complete dismissal. He ignored the decision by the Supreme Court and refused to enforce it, providing encouragement to Georgian settlers who were regularly encroaching on Cherokee lands. Violent attacks by Georgians began to occur regularly, including the 1835 occupation by the Georgia militia of the Cherokee Council House and destruction of the printing press used to print the tribal newspaper, The Cherokee Phoenix (Perdue and Green 2007, 71–74; Miles 2005, 154; Mankiller and Wallis 1993, 92).
The treaty of New Echota set 1838 as the date for Cherokee removal. The 1830 Indian Removal Act had not specified the form that removal would take, but earlier removals of other tribes from the Southeast, including the Choctaw and Chickasaw, had been military operations, controlled by the United States Army, and had resulted in numerous deaths. In 1838, United States soldiers began rounding up Cherokees, taking them from their homes and impounding their property. The Cherokee were imprisoned in forts and camps where food and clean water were scarce, disease rampant and untreated, and shelter inadequate. Many died in these camps before the march even began. In a series of removals involving thousands of Cherokees each, the tribe was forcibly marched on foot by various routes from the Southeast to the land that is present-day Oklahoma. Despite the promises of the Indian Removal Act that the government would provide adequate funding for the removal process, money for supplies was not forthcoming, food was rotten, adequate supplies and clothing were scarce, and disease spread quickly. In the end, an estimated one-quarter of the Cherokee people perished on what came to be known as the Trail of Tears. (Perdue and Green 2007, 116–140; Mankiller and Wallis 1993, 93–95).
In Indian Territory, the Cherokees faced hardships and discord that sprang from the chaotic and violent nature of forced removal; Major Ridge, John Ridge, and Elias Boudinot were assassinated for their betrayal of the Cherokee people. Their deaths exacerbated factionalism and left scars that disrupted Cherokee society in the new territory. By the mid-1840s, however, this chaotic period was largely resolved, and the Cherokees turned in earnest to creating a new community in Indian Territory. One important focus of the tribe was the development of schools—the Cherokee established both a male and a female seminary as well as numerous primary schools. (Denson 2004, 15–51). Publication of the tribal newspaper resumed in Indian Territory under the name The Cherokee Advocate (Debo, 1940). The elite class of the Cherokees continued practicing slave-labor plantation agriculture, while at the same time, anti-slavery beliefs grew in the tribe. Divisions over slavery and fears of federal intervention were part of what drove different Cherokee groups to side with either the Union or the Confederacy in the Civil War. (Denson 2004, 53–88).
By the late nineteenth century, the Cherokee faced the threat of federal takeover of their lands again. Although the Treaty of New Echota had promised a “permanent home” where the Cherokees would be able to “establish and enjoy a government of their choice and perpetuate such a state of society as may be most consonant with their views, habits and condition,” westward expansion had contributed to the growth of a sizable non-tribal population that wanted land; the white population of Indian Territory and neighboring states began calling for the breakup and sale of the lands promised to the removed tribes. Under the Dawes and Curtis Acts, Congress demanded that the tribes in Indian Territory, regardless of previous treaties, break up their communally owned land and live on individually owned allotments. The tribes who had been forced to leave their homelands on the brutal marches of the 1830s were betrayed and would soon lose their new tribal homes as settlers flooded in and Oklahoma became a state in 1907.
Under the process of “allotment,” each member of a tribe received a base allotment of 160 acres of land. However, the federally mandated program led to massive theft of tribal lands, as newcomers cheated Native Americans out of their allotted land, and the railroads claimed huge tracts for commercial enterprises. The land where Wilma Mankiller would spend the first ten years of her life was the allotment given to her grandfather as the Cherokee lands were broken up and white settlers poured in to Indian Territory. Unlike many others, however, John Mankiller retained this land and passed it on to later generations, who lived on it throughout the twentieth century (Debo 1940, 23; Mankiller and Wallis 1993, 4–5).
This, then, was the historical legacy of the community in which Wilma Mankiller was raised. The history of the tremendous loss that the Cherokees had suffered, the importance of community and the land, and a belief in Cherokee resilience were all central parts of her political development. In combination with these deep historical understandings was an awareness of the ways that vulnerability and change were central elements of modern Native life. Mankiller understood intimately how the turbulence of American postwar society had affected the Cherokee and other tribes. In 1956, Mankiller and her family moved to San Francisco, like other Native Americans who were relocated to urban centers in the 1950s (Mankiller and Wallis 1993, 70–71).
The Movement of Native Peoples after World War II
The movement of Native Peoples from their land to urban metropoles was first accelerated by the Second World War. As wartime industry expanded, Native Americans joined others migrating to the cities for jobs. During the war, 40,000 Indians had moved in search of work. Schools set up by the Bureau of Indian Affairs offered courses in war-related skills, such as welding and mechanics. Native men and women worked in the aircraft industry, as clerks and teachers, and in construction. Although some firms, like Lockheed, maintained racist hiring practices and refused to hire Native Americans, most industrial employers did so willingly, although sometimes at unfair and unequal wages when compared to their white counterparts. These Native workers entered the unfamiliar cities and laid the foundation for communities that would expand in the postwar era. (Bernstein 1999, 64–88). There were also fewer voluntary migrations during the war. In her autobiography, Wilma Mankiller describes the forced removal of 45 Cherokee families from allotted land by the U.S. Army for the enlargement of a military base in 1942. (Mankiller and Wallis 1993, 62–63).
In the decade following the war, the informal migration of many Native Americans from Indian land to the city for employment was followed by a much more systematic and brutal government-sponsored program of relocation designed to facilitate tribal termination. Echoing earlier attempts to force tribal peoples to assimilate and to give up their indigenous cultures, the federal Bureau of Indian Affairs instituted a program designed to move Native Americans from tribal spaces to the cities and to facilitate their becoming laborers in modern American society. This program was overseen by Dillon Myer, a strong proponent of Indian tribal termination and the erasure of traditional tribal lifeways who had been the architect of the forced internment of Japanese Americans during the war and saw Native cultures as “primitive” (Mankiller and Wallis 1993, 63–69; Fixico 2000, 9–10).
The federal relocation program began in 1950 and grew throughout the decade. Although technically voluntary, many aspects of the program’s implementation were decidedly coercive. First, Myer supported the reduction of loans offered on reservations and the facilitation of loans for Native Americans who were willing to remove to the cities, a factor that pushed many to leave Native land. In addition, BIA officials, who wielded considerable economic and political power on reservations, often strongly encouraged Native youth and families to relocate. Often, Native People who relocated off reservations to cities felt alienated by the lack of communal ties and support, the coldness they experienced in modern capitalism, and the unfamiliar customs in urban areas. Many of the jobs that the federal government had optimistically predicted would be available disappeared as the beginnings of decline hit the industrial cities of the Northeast, and Native families often found themselves pushed by poverty and postwar housing shortages into poor neighborhoods. Wilma Mankiller and her family found themselves living in Hunter’s Point, an impoverished neighborhood in South San Francisco (Edmunds 2006, 400–401; (Mankiller and Wallis 1993, 66–74; Fixico 2000, 8–25).
Although the federal attack on tribal communities and cultures, as well as the difficulties that many Native families faced in the migration and relocation process, made life in the postwar Native American diaspora difficult, this large-scale migration also led to the development of new community ties and pan-Indian relationships that would facilitate the rise of Native American activism in the 1950s and 1960s. As Native American migrants to the cities sought to build community there, they founded American Indian centers in their new locations. American Indian centers were founded in Phoenix (1947), Chicago (1953), and Seattle (1960), as well as many other cities across the United States. These centers were vital spaces for inter-tribal dialogue, personal survival, community formation, and activism (Fixico 2000, 123–40; Lagrand 2002, 162–67).
Wilma Mankiller remembered the San Francisco American Indian Center as a deeply important place for her family after they relocated to the Bay Area in 1956. The staff at the center, Mankiller wrote, “helped us to adjust to urban living.” She recalled that the Center was “the heart of a vibrant tribal community” and the gathering place for community activists (Lobo 2002, xv; Fixico 2002, 137). Weekly dinners provided a space for gathering with other Indians and discussing different political perspectives, as well as education programs for urban Native youth. Another important center for Native community in the San Francisco Bay Area was the Intertribal Friendship House (IFH), founded in 1955. The IFH served as a place for community gatherings, youth groups, and communal meals. Pow-wows, also important for the forging of community ties, were organized at the San Francisco Center and the IFH. As a new era of Native American activism that included the Red Power movement emerged, centers such as the one in San Francisco served as critical sites of organizing (Lobo 2002, 28–31, 77, 92; Fixico 2000, 135; Lagrand 2002, 204–08).
In 1963, Mankiller married Hugo Olaya, an Ecuadorian immigrant studying business at San Francisco State University and in quick succession had two children. This was a powerful and dynamic time of activism and social change in the Bay Area. Mankiller admired the social programs and defiant stance of the Black Panther Party as it came out of Oakland in 1966, and deeply identified with the struggles of the United Farm Worker’s Union—bringing with her an understanding of labor activism that tied back to her father’s work as a longshoreman. And in Mankiller’s neighborhood of Hunter’s Point, violence between people on the street and police officers intensified, reflecting a history of frustration and racism. Amid these currents of social change, and while she raised her children, Mankiller’s political views developed (Mankiller and Wallis 1993, 143–55).
A critical part of Wilma Mankiller’s political development was her involvement in the Red Power movement of the late 1960s in the San Francisco Bay Area. In the late 1960s, encouraged by her Klamath friend and mentor, Gustine Moppin, Wilma Mankiller began taking classes at Skyline Junior College and went on to continue her studies at San Francisco State University. (Mankiller and Wallis 1993, 158). This put her at the center of Native American activism in the Bay Area. In 1968, Lanada Boyer (Shoshone-Bannock) and Lehman Brightman (Sioux-Creek) founded a group called United Native Americans (UNA). UNA published a newsletter called Warpath and was a part of the 1968 Third World Liberation Front strike at SF State and the 1969 Third World Liberation Front Strike at UC Berkeley, which resulted in the formation of ethnic studies departments at State and UC (Boyer 1997, 89–90). From the Native Studies programs at SF State and Berkeley emerged a group of radicalized Native students, among them Richard Oakes, a Mohawk man from Akwesane, New York, and LaNada Boyer, who had gone to the Bay Area from Idaho (Johnson 1996, 82–84).
In 1969, after the Indian Center where Mankiller spent her teen years burned down, discussions among youth groups of a possible occupation of Alcatraz Island took on new urgency. On November 20, 1969, 89 American Indians landed on Alcatraz Island and claimed it, calling themselves the Indians of All Tribes. They occupied the island for a year and a half, bringing national attention to the injustices facing Native communities and serving as inspiration for a generation of Native American activists. Mankiller’s siblings and nieces and nephews were among the occupiers of the island while she managed support from the shore. The occupation had a deep political influence on Mankiller. (DeLuca 1983; Mankiller and Wallis 1993, 192–99).
In this milieu, involved in political work and going back to school, Mankiller began to question her marriage and become seriously involved in community development work. She started working with the Pit River tribe in a land struggle against PG&E, the state power utility, which gave her important legal training in tribal rights, community activism, and economic development (Janda 2007, 85–86). These experiences would not only help Mankiller in her rise to the office of Principal Chief, but would also guide her priorities throughout her political career.
Mankiller, like many women of the era who left previous marriages, suffered an economic downturn as she retrained herself and lost financial support from her husband. In 1977, Mankiller and her two daughters moved back to Oklahoma. Mankiller took a job as economic stimulus coordinator for the Cherokee Nation, and soon she was finding her voice in local Cherokee tribal politics. In 1979, Mankiller was involved in a tragic accident. A car moved into her lane to pass and hit her in a head-on collision. The other driver, who was killed, was her close friend Sherry Morris. In the course of her long recovery, Mankiller also became aware of her own myasthenia gravis and underwent surgery for this condition (Mankiller and Wallis 1993, 215–229; Janda 2007, 88, 114). Out of all of these struggles, Wilma Mankiller emerged strong and determined.
In her position as economic stimulus coordinator from 1977 to 1983, Mankiller helped found and direct an economic development initiative called the Bell Community Revitalization Project. Bell was a community in Adair County, Oklahoma that was 95 percent Cherokee, and Mankiller successfully used grants to enable the people living there to change their fundamental circumstances. Following recovery from her car accident and subsequent surgery, Mankiller put renewed determination into the Bell project with powerful results. What had begun as the poorest per capita community in Oklahoma became a nationally known success story. The chief of the Cherokees, Ross Swimmer, chose Wilma Mankiller to run as Deputy Chief on his ticket in 1983. Swimmer’s decision was surprising—he himself was a conservative Republican, and Wilma Mankiller was a liberal Democrat. Part of what led to Swimmer’s nonpartisan choice was Mankiller’s trustworthiness and proven record on the Bell community project. Swimmer faced criticism from conservative allies while Mankiller herself faced opposition because she was a woman, a part of a younger generation radicalized by the Red Power movement, and a partial outsider as someone who had not grown up entirely in Oklahoma (Mankiller and Wallis 1993, 232–242; Janda 2007, 89–94).
Wilma Mankiller won the election for Deputy Chief in 1983 and became Principal Chief in 1985 when Ross Swimmer left the position to work in Washington, D.C. Mankiller’s rise to the most powerful political office in the Cherokee Nation of Oklahoma made her an internationally known figure. She became a symbol of resurgent Native pride, the strength of indigenous women, and Native American feminism. In her work as Principal Chief, she continued to emphasize grassroots community development and economic empowerment. She focused on health care, education, and programs for Cherokee youth. Working from her staunch belief in the struggle for Native sovereignty, a focus that testified to her roots in the Red Power movement, Mankiller fought for new agreements from the federal government giving the Cherokee independence in overseeing tribal programs and governance (Janda 2007, 97–119).
As the first female Principal Chief of the Cherokee Nation, Wilma Mankiller was one of the most visible figures in Native American politics in the latter half of the twentieth century. Her rise to political office was part of the emergence to power of a generation marked by a new demand for Native sovereignty. Her childhood instilled in her a deep empathy for impoverished Cherokee communities and led her to see community development as a fundamental necessity for tribal prosperity. Her work and her proud identification as a Native American feminist increased the visibility of Native American women and communities in general. Mankiller was the recipient of numerous prestigious awards, including the Presidential Medal of Freedom and the American Association of University Women’s Achievement Award, and was inducted into the National Women’s Hall of Fame in 1993. She died of pancreatic cancer at her home in Adair County, Oklahoma, on April 6, 2010.
Biographies of Notable Figures
John Ross (1790–1866)
John Ross was born on October 3, 1790. He was raised in a Cherokee world that was already reeling from tremendous change and intrusion from Anglo settlers. After the American Revolution, as white settlers poured into Cherokee lands in Georgia and what in 1796 would become the state of Tennessee, they wreaked havoc on the tribe. The Cherokees, who had sided with the British during the Revolutionary War out of fear of the colonists, lost a tremendous amount of land and suffered greatly during this period. But by 1800, the Cherokees still had about 50,000 square miles of territory and in the early years of the nineteenth century made a remarkable comeback. It was in this world that the young John Ross was brought up (Hicks 2011, 28–32).
John Ross’s mother, Mollie, was a Cherokee woman and a member of the Bird Clan. His father, Daniel, was a Scotsman who had come into the Tennessee Valley as a young man to try his luck as a trader. He had met and fallen in love with Mollie McDonald while working as a clerk in a trading post in Cherokee territory. As Mollie’s husband, Daniel Ross became a member of the Bird Clan and an important figure in Cherokee society. In his youth and early adulthood, John Ross lived in a world of mixed European and Cherokee ancestry, where traditional tribal customs were rapidly mixing with the customs and practices of Anglo-American society. From his family, John Ross would learn to value both the sovereignty and culture of the Cherokee tribe as well as the government and culture of the United States. He grew up in a home that was organized in the traditional ways and celebrated festivals that had always been sacred to the tribe, while also learning English and the politics of the new nation working at his grandfather’s trading post (Mankiller and Wallis 1993, 85; Hicks 2011, 31–32, 43–45).
After being educated at the Kingston Academy in Tennessee, Ross returned to his home in Cherokee country to work in business. He was successful and gradually became better known in the tribe. In 1813, Ross married a Cherokee woman named Elizabeth Brown Henley, also known as Quatie. As settlers continued to move into Indian country, tensions and factionalism mounted. The same year that John Ross and Quatie were married, a rebellion known as the Redstick Rebellion began among the Creek tribe. John Ross and many other Cherokee sided with the American government in a war with the rebellious Creeks, believing that doing so would show their willingness to assist the new nation and help preserve Cherokee sovereignty; however, when Jackson indiscriminately took a huge amount of land from both rebel and loyal Creeks, as well as the Cherokee, at the end of the war, John Ross learned that many American leaders were determined to take Native land and could not be trusted. In the face of this, Ross saw the critical importance of continued Cherokee independence (Hicks 2011, 48, 50–51, 56–69; Mankiller and Wallis 1993, 85–86).
In 1816, John Ross accompanied a delegation of Cherokee statesmen to Washington, D.C. His literacy in English was of great value to the Cherokee. In this mission, John Ross stood out for his diplomatic skills, knowledge of previous treaties that the Cherokee had signed with the United States government, and his bilingualism. He pushed the United States representatives to give the tribe back land that Jackson had taken at the end of the Creek War in exchange for cession of land in South Carolina. This agreement was seen as a major victory by the Cherokees, who were less concerned with the land in South Carolina than the territory that Jackson had taken. Although Jackson quickly and very questionably got the land back, Ross’s capable negotiations in Washington gained him the trust of the Cherokee people and a reputation as a statesman (Hicks 2011, 83–89).
In 1817, as part of their effort to consolidate their control of their territory in the face of white aggression, the Cherokee formed a National Committee. This new governmental body of thirteen members constituted a new, powerful executive branch of the Cherokee tribe that oversaw political affairs to prevent any one Cherokee chief from signing away more land to the United States government. John Ross was elected a member of the National Committee. In the face of increased pressure to leave their lands, John Ross, now an appointed Indian commissioner, became more determined to help his people retain their homelands and traditional culture. Increasingly, Ross became the voice of resistance to Andrew Jackson’s ploys and threats to force removal. In 1828, in the middle of intensified struggle with the United States over the issue of removal, John Ross was sworn in as Principal Chief of the Cherokees (McLoughlin 1986, 157–58; Hicks 2011, 95, 163).
As Principal Chief, Ross attempted to lead his people through the violence of the Georgia settlers who sought to take their land and the insistence of President Jackson that they be removed to the west. Ross kept the interests of his people at the forefront and believed that the way forward lay in using the laws of the United States and appealing to the rights of the Cherokee under treaties signed with the United States government. Although he ultimately failed to stop the forced removal of his tribe from their eastern homelands, John Ross is remembered as a great hero of the Cherokee people.
Dr. LaNada Boyer (1947–)
LaNada Boyer (Bannock-Shoshone) was born in 1947 and grew up on the Bannock-Shoshone Fort Hall Reservation in Idaho. The Shoshone and the Bannock tribes had been forced onto the Fort Hall Reservation by the American military in 1867. Boyer grew up poor, one of 12 children, and would tell a Ramparts magazine writer in 1970 that “we were always hungry.” (Collier 1970, 28). She was raised to understand the struggles and betrayals her people had suffered at the hands of the United States and to value political work. Her father was tribal chairman when she was young, and worked to resist government encroachment onto Shoshone and Bannock land. The racism that Native Americans faced was everywhere—visible in the signs in the windows of the stores in the small towns that surrounded the Fort Hall reservation that read, “No Indians or Dogs Allowed” and the presence of separate Indian stalls in public bathrooms. This virulent racism gave Boyer an early understanding of the difficulties facing Native Peoples (Collier 1970, 28–30; Boyer 1997, 88).
As a girl, Boyer attended St. Mary’s School for Girls in Springfield, South Dakota. Much of the coursework was designed to prepare Boyer and other Native youth for domestic work and menial labor. Boyer was eventually expelled for being “too outspoken.” She was again expelled from public school on the Fort Hall reservation at the age of 15 for speaking up about racism toward Indians in the curriculum. She was sent to Chilocco Indian School in Oklahoma, where she made the honor roll but was expelled again. Boyer was sent to another BIA boarding school, Stewart Institute, in Carson City, Nevada, where she was expelled after only one day. During this series of expulsions, Boyer was labeled “difficult” and threatened with incarceration. At the age of seventeen, Boyer passed the G.E.D. exam and began classes at Idaho State College (Collier 1970, 28–30; Johnson 1997, 104–105).
In 1965, LaNada Boyer joined other Native Peoples taking part in the federal relocation programs and left the Fort Hall reservation on a Greyhound bus for San Francisco. Her decision to go was based on the fact that there were few jobs available for Indians on the Fort Hall reservation except for menial labor. Boyer felt that if she were to take part in the BIA relocation program, she might find a better situation. She would later come to see these programs as a sham set up by the government to dispossess Native Americans. On arriving in San Francisco, Boyer waited in vain for the BIA to help her get the job she had been promised. Instead, once she herself found employment as a barmaid, the BIA immediately ended her $140 monthly stipend. Like many others who relocated, Boyer was alienated and poor and ended up getting pregnant at the age of 17 (Collier 1970, 30; Johnson 1997, 105).
It was at that point that Boyer, determined to continue her education, was accepted into the Economic Opportunity Program for minority students at the University of California at Berkeley as the first Native student in the program. Although she did well in her classes, Boyer felt that she had been accepted out of “tokenism” and experienced pressure to be more “white”—echoes of the antagonism she had experienced in public schools when she was labeled “difficult.” She also recalled wanting to learn about Native American history and being unable to find these classes at Berkeley (Boyer 1997, 89; Collier 1970, 30; Johnson 1997, 105–06).
Boyer began getting more involved in Bay Area Native activism. In 1968, she co-founded United American Indians with Lee Brightman (Sioux-Creek). The organization published a newspaper called Warpath that was strongly critical of BIA policies. In 1969, Boyer began working on the Third World Liberation Front Strike at UC Berkeley and San Francisco State, which would lead to the establishment of the first ethnic studies programs in the United States (Boyer 1997, 89–90).
In 1969, after the San Francisco American Indian Center burned down, resentment at the poor treatment of Native Americans by the federal government increased. At the same time, discussion had emerged over what to do with Alcatraz Island, the site of a former federal penitentiary in San Francisco Bay. The prison had been closed in 1963, and the next year a group of five Sioux men had attempted to reclaim the island for indigenous Americans. A Texas developer had proposed a controversial plan to turn the land into a commercial site that had been endorsed by the San Francisco City Council. Instead, a group of California college students, including LaNada Boyer, formed a group they called the Indians of All Tribes and planned to occupy the island. On November 20, 1969, they landed and declared the island to be an occupied territory, reclaimed for the Native Peoples of the United States (DeLuca 1982, 7–14).
Lanada Boyer emerged as one of the leaders of the occupation of Alcatraz, along with Richard Oakes (Mohawk). Not only was she one of the core organizers of the action, but she remained at the center of the occupation throughout the year and a half that it lasted. She served on the council organized by the occupation to oversee the occupation and managed relations with media and government representatives. At the one-year anniversary of the occupation, Boyer was one of five original members of the Indians of All Tribes who remained. With John Trudell, she developed a plan to create a university free for Native Americans called Thunderbird University on the island and on the eve of the government removal of the occupiers from the island was organizing students at UC Berkeley and San Francisco State in support of the occupation. In 1997, Boyer wrote that “The island is a reminder of our ongoing relationship with the federal government. It is an infamous prison that carries the burden of the wicked deeds of others, the bondage and captivity of our people, the painful stories of misery and suffering. The federal government has never recognized our claim and has failed to enforce many treaties and federal laws protecting our rights and many others.” (Boyer 1997, 100, 96–99; Johnson 1997, 206).
In 1999, Boyer completed her PhD in Political Science at Idaho State University. Her dissertation, a detailed comparison of western European and Native worldviews, argued for the “incorporation of Native American perception into mainstream political discourse” as a way of combatting disconnections between the natural world and human society embedded in Western political and philosophical thought (Chavers 2007, 499; Boyer 1999, 1–44).
See also: Indian Removal Act and the Trail of Tears, 1830; Cherokee Cases, 1831–1832
Further Reading
Bernstein, Alison. American Indians and World War II: Toward a New Era in Indian Affairs Norman, Oklahoma: University of Oklahoma Press, 1999.
Boyer, LaNada. “Reflections of Alcatraz.” In American Indian Activism: Alcatraz to the Longest Walk. Edited by Troy Johnson, Joane Nagel, and Duane Champagne. Chicago: University of Illinois Press, 1997.
Boyer, LaNada. “Epistemology of a Muted Group: Native American Perceptions of the Natural World with Implications for the Political Policy Process.” PhD Dissertation. Idaho State University, 1999.
Chavers, Dean. Modern American Indian Leaders: Their Lives and Their Work, Volume Two. New York: The Edwin Mellen Press, 2007.
Collier, Peter. “Better Red Than Dead,” Ramparts. (February 1970): 27–38.
Debo, Angie. And Still The Waters Run: The Betrayal of the Five Civilized Tribes. Princeton, NJ: Princeton University Press, 1940.
DeLuca, Richard. “ ‘We Hold the Rock!: The Indian Attempt to Reclaim Alcatraz Island.” California History, Vol. 62, No. 1 (Spring 1983): 2–22.
Denson, Andrew. Demanding the Cherokee Nation: Indian Autonomy and American Culture, 1830–1900. Lincoln, Nebraska: University of Nebraska Press, 2004.
Edmunds, David, Frederick E. Hoxie, and Neal Salisbury. The People: A History of Native America. Belmont, CA: Wadsworth Cengage Publishing, 2006.
Fixico, Donald. The Urban Indian Experience in America. Albuquerque: University of New Mexico, 2000.
Genetin-Pilawa, C. Joseph. Crooked Paths to Allotment: The Fight Over Federal Indian Policy after the Civil War. Chapel Hill: The University of North Carolina Press, 2012.
Goldstein, Margaret. You Are Now on Indian Land: The American Indian Occupation of Alcatraz Island. Minneapolis: Twenty-First Century Books, 2011.
Hicks, Brian. Toward the Setting Sun: John Ross, the Cherokees, and the Trail of Tears. New York: Atlantic Monthly Press, 2011.
Hoikkala, Paivi H. “Mothers and Community Builders: Salt Rivers Pima and Maricopa Women in Community Action.” In Negotiators of Change: Historical Perspectives on Native American Women. Edited by Nancy Shoemaker. New York: Routledge, 1995.
Janda, Sarah Eppler. Beloved Women: The Political Lives of LaDonna Harris and Wilma Mankiller. Dekalb: Northern Illinois University Press, 2007.
Johnson, Troy R. The Occupation of Alcatraz Island: Indian Self-Determination and the Rise of Indian Activism. Chicago: University of Illinois Press, 1996.
Krouse, Susan Applegate. “What Came Out of the Takeovers: Women’s Activism and the Indian Community School of Milwaukee.” American Indian Quarterly, Vol. 27, No. 3 and 4 (Summer/Autumn 2003): 533–547.
Lagrand, James. Indian Metropolis: Native Americans in Chicago, 1945–75. Chicago: University of Illinois Press, 2002.
Langston, Donna Hightower. “American Indian Women’s Activism in the 1960s and 1970s.” Hypatia, Vol. 18, No. 2 (Spring 2003): 114–132.
Lobo, Susan and Kurt Peters, eds. American Indians and the Urban Experience. Lanham, MD: Alta Mira Press, 2001.
Lobo, Susan, ed. Urban Voices: The Bay Area Indian Community. Tucson: University of Arizona Press, 2002.
Mankiller, Wilma and Michael Wallis. Mankiller: A Chief and Her People. New York: St. Martin’s Press, 1993.
Mankiller, Wilma. Every Day is a Good Day: Reflections by Contemporary Indigenous Women. Golden, CO: Fulcrum Publishing, 2004.
Mankiller, Wilma. “Introduction.” In Albert Hurtado, Reflections on American Indian History. Norman: The University of Oklahoma Press, 2008.
McLoughlin, William G. Cherokee Renascence in the New Republic. Princeton, NJ: Princeton University Press, 1986.
Miles, Tiya. Ties That Bind: The Story of an Afro-Cherokee Family in Slavery and Freedom. Berkeley: University of California Press, 2005.
Nagel, Joane. American Indian Ethnic Renewal: Red Power and the Resurgence of Identity and Culture. Oxford, UK: Oxford University Press, 1996.
Puisto, Jaakko. “ ‘We Didn’t Care for It,’ the Salish and Kootenai Battle against Termination Policy, 1946–1954.” Montana: The Magazine of Western History, Vol. 52, No. 4 (Winter 2002): 48–63.
Perdue, Theda. Cherokee Women: Gender and Culture Change 1700–1835. Lincoln: The University of Nebraska Press, 1998.
Perdue, Theda and Michael Green. The Cherokee Nation and the Trail of Tears. New York: Viking Penguin Publishers, 2007.
Remini, Robert. Andrew Jackson and His Indian Wars. New York: Viking, 2001.
Rosenthal, Nicolas G. Reimagining Indian Country: Native American Migration and Identity in Twentieth-Century Los Angeles. Chapel Hill: University of North Carolina Press, 2012.
Shreve, Bradley G. “ ‘From Time Immemorial’: The Fish-in Movement and the Rise of Intertribal Activism.” Pacific Historical Review, Vol. 78, No. 3 (August 2009): 403–34.
Shreve, Bradley. Red Power Rising: The National Indian Youth Council and the Origins of Native Activism. Norman: University of Oklahoma Press, 2011.
Smoak, Gregory E. Ghost Dances: Prophetic Religion and American Indian Ethnogenesis in the Nineteenth Century. Berkeley: University of California Press, 2006.
The American Indian College Fund, 1989
Azusa Ono
Chronology
The Development of the American Indian College Fund
The American Indian College Fund (the College Fund) was established in 1989 within the American Indian Higher Education Consortium (AIHEC), which had been founded in 1972. The primary role of the College Fund was to seek contributions from the private sector. The fund would offer support to the tribal colleges and universities (TCUs), and scholarships to their students. In 2002, the original headquarters in New York City relocated to Denver, Colorado.
The College Fund came into being as a result of the tribal college movement of the 1960s. A number of Indian tribes and nations sought to provide higher education opportunities for their members on reservations so that they could attend college without leaving their tribal community.
Changes in federal Indian policy also pushed the tribal college movement further, as it shifted from termination to self-determination. Thus, tribes won general support for self-control of their affairs. One such example was the development of Indian Community Action Programs within the Office of Economic Opportunity (OEO). Tribes acquired more autonomy in administering their own programs on reservations (Carney, 106).
As with the American population as a whole, the 1960s saw Native Americans begin to enroll in college in larger numbers. In 1969, 3,500 students took advantage of the BIA’s financial assistance to college students; four years later, 13,500 had received BIA funding. By comparison, in 1968, 739 public community colleges were in existence, a number that increased by 1978 to 1,047 (Stein, 6). The need for local community colleges on and near isolated reservations arose with similar demands from Indian tribes.
In 1968, Navajo Community College (today’s Diné College) was founded by the Navajo Nation as the first tribal college in the United States. Dr. Robert Roessel, former director of the Rough Rock Demonstration School in Arizona and the Center for Indian Education at Arizona State University, became the first president of Navajo Community College.
The Navajo Nation initially had established a higher education scholarship fund in 1957 to send qualified youth to off-reservation colleges. They soon learned that more than 50 percent of scholarship awardees had returned home by the end of their freshman year. This disappointing outcome led to a 1959 conversation among the tribal education committee about the creation of the tribe’s own higher education institution (Stein, 11).
The effort to establish a tribal college was truly a community effort. Yazzie Begay, a member of the Navajo Community College’s first board of regents, donated family lands at Tsaile, Arizona, to build the campus. The isolated location, however, was far from the concentration of Navajo people. The college then opened branch campuses in places like Chinle, Shiprock, and Tuba City (Reyhner and Eder, 296–97). The college enrolled Navajos of different ages. One-third of the students were in academic courses, while two-thirds took vocational training courses (Prucha, 1147).
With the success of Navajo Community College, the federal government extended its support for TCUs with the passage of the Tribally Controlled Community College Assistance Act (P.L. 95–471) to assist tribal colleges on or near reservations. The law provided grants for the operation and improvement of TCUs, most of which had operated in deteriorated buildings, and sometimes even in trailers.
Within five years of passage of the Tribally Controlled Community College Assistance Act, TCUs began to earn accreditation. In 1983, Oglala Lakota College and Sinte Gleska College became the first two accredited tribal colleges to offer four-year bachelor’s degree programs. In 1989, Sinte Gleska College became the first tribal college to offer master’s degrees programs.
The number of TCUs has grown since the creation of AIHEC when, there were only six TCUs. Today, 37 colleges are in operation in the United States. The number of students attending TCUs has also grown. In 1997, approximately 25,000 Native American students attended one of the TCUs. Today, these colleges serve approximately 30,000 full- and part-time students. According to fall 2010 enrollment data, 8.7 percent of Native American college students attended one of the 32 accredited tribal colleges. American Indian students constituted 78 percent of the combined total enrollment of these institutions (Review of Federal Agencies’ Support to Tribal Colleges and Universities, 2010).
The American Indian Higher Education Consortium (AIHEC)
In 1973, Navajo Community College and five of the first tribal colleges started the American Indian Higher Education Consortium (AIHEC). This would be an informal organization of member colleges to assist TCUs and would serve as a lobbyist group representing TCUs. Gerald One Feather of Oglala Lakota Community College became the first president of AIHEC, followed by Lionel Bordeaux, president of Sinte Gleska College. AIHEC’s first five-year plan included working on curriculum, research and data, accreditation, institutional development, and human services. With the funds provided by the Rockefeller Foundation, AIHEC awarded its first leadership grant to the American Association of Colleges and Junior Colleges. The grant funded interns at Sinte Gleska and Navajo Community Colleges (Gipp, 12).
Today, AIHEC represents 37 TCUs in the United States and one in Canada. AIHEC’s mission is to provide “leadership and influences public policy on American Indian higher education issues through advocacy, research, and program initiatives; promotes and strengthens indigenous languages, cultures, communities, and tribal nations; and through its unique position, serves member institutions and emerging TCUs” (AIHEC website).
The American Indian College Fund (The College Fund)
The American Indian College Fund (the College Fund) began in 1989 within the AIHEC to raise funds from the private sector. In its first year of its operations, the College Fund raised $1 million. It also established its own endorsement fund supported by a challenge grant from the MacArthur Foundation and a donation from the Hearst Foundation (Houser, 98). Some of the major funders included the Eli Lily Corp. ($31 million for facility development) and the W. K. Kellogg Foundation Higher Education Initiative ($27 million) (Gipp, 13). In 2013, the College Fund distributed more than 6,000 scholarships, not only for TCU students, but also to those who enrolled in the BIA-operated institutions and in mainstream colleges and universities. Since 1989, the College Fund has distributed nearly 100,000 scholarships totaling approximately $78 million. (U.S. Senate Hearing, Statement of Cheryl Crazy Bull, 2014, 28). The demand for financial assistance has always been greater than the supply of scholarships, due to high poverty rates among Native American students, their lower average age compared the United States’ total, and the growing number of American Indian students seeking college degrees.
American Indian College Fund (AICF) Flame of Hope 2005 Gala. AICF was founded in 1989 to raise funds from private contributors to support scholarships and resources for tribal colleges.The headquarters were originally located in New York City and relocated to Denver, Colorado, in 2002. (Jemal Countess/WireImage/Getty Images)
The official mission of the College Fund is to transform “Indian higher education by funding and creating awareness of the unique, community-based accredited tribal colleges and universities, offering students access to knowledge, skills, and cultural values, which enhance their communities and the country as a whole.” The current goal of the College Fund is to “educate 60% of Native American people served by TCUs by 2025” (The College Fund website). Today, the College Fund supports 34 fully accredited tribal colleges and universities on or near reservations in 13 states. These colleges and universities serve 30,000 full-time students.
The Tribally Controlled College Assistance Act of 1978
Another limited, but essential, federal funding source for TCUs became available with passage of the Tribally Controlled College Assistance Act of 1978. The act provided $4,000 per full-time equivalent (FTE). The key justifications for the law were (1) geographic isolation of reservations, (2) lack of access among tribal members to mainstream higher education, (3) cultural difference between Indian and non-Indian society, (4) better chances of educational success in local and community setting, (5) local control over higher education to tribal members, and (6) lack of local tax or state funding available to the TCUs (Gipp, 11).
Later, Congress agreed to increase the fund to $6,000 per full-time equivalent (FTE). Under the Reagan administration and throughout the 1980s, the actual appropriation would shrink. According to the Carnegie Foundation’s research, in 1980, $5 million in federal fund was distributed under the Tribally Controlled Community College Act, offering approximately $3,000 per FTE. In 1989, the appropriation had grown to $8.6 million, but the tribes received only $1,900 per FTE (The Carnegie Foundation, 36–37). Federal funding never matched the rapid growth of TCUs, and the funds available for each FTE plummeted. In 2008, AIHEC successfully secured $8,000/FTE to meet inflation (AIHEC website).
Encouraged by this support from the federal government, more tribes sought to establish their own TCUs in their communities. This, however, led to more demands from tribal colleges for more funds and technical support. The tribes could exercise Indian self-determination in education in place more easily in elementary and secondary schools as these had predated the self-determination policy. The BIA simply transferred its control, facilities, employees, and funding to the tribes. On the other hand, post-secondary institutions were previously nonexistent, so the tribes had to build them from the ground up.
Funding for TCUs
Despite its positive development and progress, tribal colleges remain the least-funded higher education institutions in the nation. As most TCUs are located on reservations, local property taxes are not available to support them, and states have no obligation to fund them. Thus, major funding for TCUs comes primarily from the federal government, including the Tribally Controlled Community College Assistance Act of 1978, which is administered by the BIA, and Title III of the Higher Education Act. In this situation, the College Fund’s ability to raise funds from the private sector is essential to the survival of tribal institutions.
Sidebar 1: Five Most Important Laws for the Creation and Support of Tribally Controlled Colleges and Education of Native Americans
The act appropriated $5.5 million for construction, maintenance, and operation of Navajo Community College. The funds were made available for the college to provide educational opportunity for Navajos and other applicants that would suit their unique needs and interests. The original bill was sponsored by Representative Wayne Aspinall (D–CO), chairman of the House Committee on Interior and Insular Affairs. These permanent funds were extremely important for the newly founded Navajo Community College, as other funds were one-time grants.
The act provided “to encourage the development of human resources of the Indian people; to establish a program of assistance to upgrade Indian education; to support the right of Indian citizens to control their own educational activities.” It acknowledged that the federal government’s control over the programs related to services for Native Americans had limited rather than enhanced the progress of Indian people and their communities. The Indian Education section of the law offered financial support for the public schools enrolling Native American children to meet the special needs of their students.
The act established direct federal assistance to Native American higher education institutions operated on or near reservations. The act provided for “the operation and improvement of tribally controlled community colleges to insure continued and expanded educational opportunities for Indian students.” It appropriated $25 million for fiscal year 1979 and $30 million for fiscal year 1980. The fund would be available for TCUs on a per-student basis ($4,000 for each full-time equivalent student attending the college).
The act recognized federal government’s policy “to preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages.” The act supported that higher education institution would offer the same academic credit comparable to a foreign language course and that elementary, secondary, and higher education institutions would include Native American languages in their curriculum. It also encouraged the use of Native American languages by Indian tribes and other Native governing bodies to conduct their business. The passage of this act was significant as it officially reversed the historical policy of suppressing Native American languages.
The legislation provided Land Grant status for qualified tribal colleges and universities to offer equity funding, access to research and extension programs, and other federal grants and loans. Those TCUs were considered to play the same role of that land grant institution that emphasized education and research in agriculture and mechanic arts. It entitled those TCUs to funds and benefits for the improvement of agriculture and sciences programs and facilities. The act was amended in 2014 and today provides funds to thirty-five TCUs. Prioritized areas are same as national critical needs areas including sustainable energy, global food security and hunger, nutrition and preventing childhood obesity, and sustainable rural economies.
To keep higher education inexpensive, TCUs have maintained lower rates of tuition for their students. The average annual cost of attendance at a TCU in 2013–14 was $14,168 (including room, board, books, and tuition) (The College Fund website). It is considerably lower when compared to the cost of a four-year public university, which stood at $18,749 per year (excluding books) in 2013–14 (The College Fund website). Like many community colleges nationwide, TCUs also have been open-admission institutions from which no applicant will be rejected. This policy puts pressures on already tight budgets, even as the growth of the student body (18,881 in 2012) is positive news for TCUs.
Profiles of TCU Students
A lack of stable funding has led to the closure of TCUs, even as financial difficulty has posed serious challenges for Native American students. The 2010 census reported that 28.4 percent of American Indians lived below the poverty level, nearly double the rate of 15.3 percent of all Americans (2010 Census). According to the College Fund’s study, only five percent of Indian scholarship applicants can afford to attend college without financial assistance. The average income of first-time entering students at TCUs is $15,262, while the average cost of education at TCUs is $13,800 (The College Fund website). For a number of TCU students, the financial, technical, and academic support from the College Fund is critical for their success.
A majority of students at TCUs are nontraditional, with more than half over age 25. About 35 percent are single parents, 63 percent are female, and 60 percent attend college on a full-time basis (AIHEC, 2012). Many such students are adults, work full-time, and have family and community obligations while attending college. Many of them are in the first generation of college students in their family, have poor academic preparation, and hold negative impressions of formal education (Stein, 2009, 26).
These characteristics of TCU students, many of which are shared by under-represented groups in higher education, require more financial assistance, academic and non-academic advising, and special educational and training programs.
Faculty at Tribal Colleges
The distribution and characteristics of faculty at TCUs provide another area that needs improvement. According to the American Indian Higher Education Consortium’s 2009-2010 survey conducted in 2009 and 2010, 57 percent of faculty were non-Indian while 79 percent of TCU students were American Indian or Alaska Native. This distribution of American Indian/Alaska Native faculty is significantly higher than that of non-TCUs, yet there remained a considerable gap between them and the student body (AIHEC AIMS Fact Book, 2009-2010). Non-Native faculty members tended to have higher levels of college education, compared to their Native American peers. In 2003, approximately 68 percent of non-Indian faculty had a master’s or doctoral degree, while 55 percent of their Indian counterparts did so (Voorhees, 4).
This gap was created partially due to the failed educational policy toward Indian people, and the number of available Native American educators has been limited. For the TCU faculty members who seek graduate degrees, the College Fund has offered scholarships for not only the students at tribal colleges, but also faculty members who since 2002 have sought a terminal degree. In 2014, the College Fund provided over 46 fellowships to TCU faculty to complete a master’s or terminal degree (The College Fund, 2013–14 Annual Report, 9).
Missions of Tribal Colleges
One of the most important missions of TCUs is to preserve and promote tribal cultures, languages, and histories. Native studies and language programs are at the center of the TCUs curriculum. Yet, the tribal colleges, like their peers in the mainstream society, also need to prepare students for the 21st-century job market. Balancing the two missions, to educate students in two different, and often opposing, knowledge bases—one of western civilization and another of tribal cultures—poses a difficult task (Carney, 110).
As TCUs commit themselves to serve their local communities and provide services that fit the needs of a specific community, they have diverse missions, curricula, educational emphases, philosophies, and services. Outside the classroom, TCUs play a significant role for the betterment of their tribes by offering important social and economic programs (The Carnegie Foundation, 4). Such programs include health care (health centers, education and prevention of diabetes and HIV) and educational institutions and opportunities (libraries, computing centers, language classes, life-long learning programs, and daycare) (The College Fund website).
Between 1976 and 2010, Native American enrollment in undergraduate degree-granting institutions more than doubled (from 76,100 to 179,278). Yet, they struggle to enroll college students, and their retention late in 2010 was as low as 15 percent (The College Fund, “Fostering Success,” 2). Compared to the Native American students at mainstream colleges and universities, the TCU students have a better chance of success when remaining in the program. Eighty-six percent of TCU students complete their programs, while fewer than 10 percent of Native American students who go to mainstream colleges and universities directly from reservation high schools earn a bachelor’s degree (The College Fund website). By providing higher educational opportunity within the students’ familiar tribal community, TCUs offer an alternative higher education opportunity for Native Americans and a better chance of success for Native Americans who struggle in a mainstream college environment.
Biographies of Notable Figures
Ned Hatathli (1923–1972)
Ned Hatathli (1923–1972) was a Navajo educator and modern leader who became the first member of his tribe to earn a PhD. He served as the first Navajo president of Navajo Community College (now Diné College) from 1969 to 1972.
On October 11, 1923, Hatathli was born at Coalmine Mesa, near Tuba City, Arizona, on the Navajo Reservation as one of ten children. He grew up in a traditional Navajo home until adolescence, when a relative encouraged him to go to school. He attended a BIA boarding school in Tuba City, Arizona, graduating in the late 1930s as a valedictorian of Tuba City High School. Hatathli decided to enroll at Haskell Institute in Lawrence, Kansas. He left Haskell before graduation to volunteer for the Navy at the outbreak of World War II, serving until the end of the war in 1945.
After leaving the military, he returned home to attend the Arizona State Teachers College (now Northern Arizona University) in Flagstaff. Upon completion of his education degrees in 1950, Hatathli moved back to the Navajo Reservation and assumed leadership of the Navajos’ movement toward greater social and economic opportunity, including the tribal college movement.
Hatathli helped to establish the Navajo Arts and Crafts Guild in Window Rock, as he strongly believed that art was an essential aspect of the Navajo way of life. During the 1950s, he established standards for Navajo silversmithing and weaving to improve their quality. He also developed the raised design characteristic of Coalmine Mesa weaving.
His work in Navajo politics started after he left the Navajo Arts and Crafts Guild. In 1955, Hatathli was elected to the Navajo Tribal Council. He later resigned from the Council to become Director of Tribal Resources of the Navajo Nation. He believed that people were as important a resource as oil, uranium, coal, natural gas, or timber that existed on the Navajo Reservation. He also made sure that Navajos could benefit fully from natural resource development on their reservation.
In the mid-1960s, the Navajo Tribal Council decided to improve educational opportunity for tribal members. With two other college-educated leaders, Dillon Platero and Allan Yazzie, Hatathli pushed for the establishment of and the Rough Rock Demonstration School, and later the Navajo Community College. Earlier in life, Hatathli had believed that the primary goal of Indian education should be to advance Indians’ entry into the dominant society. As he became more involved in Indian education, Hatathli came to value and learn more about traditional Navajo beliefs and traditions.
In 1966, Hatathli became the president of a group of three Navajo leaders called DINE (Demonstration in Navajo Education). The organization directed the Rough Rock Demonstration School in the first years after its establishment in 1966. The Rough Rock Demonstration School had been the first Indian school in the nation to be solely controlled by Indian people (Carney, 106). The school had the determination and belief that Navajos themselves, even if they had little or no education, could effectively control and manage their own school. The school was jointly funded by the BIA and the Office of Economic Opportunity (OEO). Eventually, DINE was dissolved, and a local all-Navajo school board replaced it. The school project proved highly successful, and tribal representatives from all over the country visited this model school. The Rough Rock Demonstration School became the first “contract school” that was locally run with BIA funding to provide educational services.
When the Navajo Community College (NCC) opened in 1968, Hatathli was appointed as the executive vice-president. He became NCC’s first Navajo president when Dr. Robert Roessell, a non-Native educator and the first president of NCC, stepped aside in 1969. Both Roessell and Hatathli envisioned a Navajo studies program as the centerpiece of NCC curriculum.
Hatathli established a Navajo college administrative council staffed by Navajos and other Natives to advise him and to promote Indian self-determination. He also announced that non-Indian employees would be replaced by educated Navajos once they became eligible. This policy, although accepted by the tribal council and the NCC staff, caused dissatisfaction among non-Indian staff who, in 1970, constituted 60 percent of all employees. Hatathli truly believed in Indian self-determination and wanted NCC to reflect that commitment (Stein, 15; Reyhner and Eder, 297). As Hatathli declared, “This is an Indian owned and an Indian operated institution, and we certainly don’t want any people other than Indian to dictate to us what is good for us” (quoted in Szasz, 177–78).
In 1971, Hatathli saw Congress pass the Navajo Community College Act (P.L. 92–189) to provide federal support for the college. The law also appropriated $5.5 million for construction of the campus and funding for operations. On October 12, 1972, a day before an important conference at NCC, Hatathli accidentally shot himself to death in the chest while cleaning his gun at Many Farms, Arizona. He was survived by his wife, Florence, and their four children. In honor of his contribution to the NCC, the college (renamed Diné College in 1997) named its cultural center in Tsaile the Ned Hatathli Cultural Center and Ned Hatathli Museum.
DOCUMENT EXCERPTS
During the Congressional hearing on higher education for Native American students held in June 2014, Cheryl Crazy Bull (Sicangu Lakota), president and CEO of the College Fund and former president of AIHEC and Northwest Indian College in Washington State, made a statement regarding the current condition of TCUs and their students as well as the College Fund’s future plans for the betterment of educational opportunities for Native Americans.
The mission of the fund is to support programs and operations of this nation’s tribal colleges and universities and to provide scholarships for access and success for tribal college students and for a limited number of Native students attending mainstream institutions. Our support is made possible through the generous contributions of individuals, foundations and corporations, because we bring private sector resources to tribal colleges and universities and their students.
You are already aware of the significant gap in participation in higher education by Native People. A contributing factor is the funding for financial aid for these students. The average income of first-time entering students at TCUs is $15,262. The average cost of a TCU education is $13,800. Only one in 20 of the fund scholarship applicants can afford to go to college without financial aid.
Nationally, 36 percent of students receive Pell, but at tribal colleges, the average is 80 percent and in some cases as high as 90 percent. The gap between the average cost of $13,800 and a maximum Pell award of $5,645 is $8,155 of unmet need.
I also want to note that the Pell grant participation is not a substitute for adequate Federal operational funding of the TCUs. I also want to note that only two TCUs participate in Federal loan programs. As TCUs have grown 23 percent in the last five years, this gap will continue to be a significant issue.
Our institutions are rural and technologically isolated. Transportation remains a huge concern. Fifty-nine percent of TCU students are first generation students, and our students continue to combat significant social and educational issues, such as generational poverty and unemployment.
The college fund has a major role in supporting access and success. In 2013, we provided over 6,000 scholarships averaging $1,403 through 226 different scholarship programs. In the last 25 years, we have given approximately $78 million out in nearly 100,000 scholarships.
We were recently selected, along with the American Indian Graduate Center, to administer the Cobell Education Scholarship Fund. The first meeting with the Cobell board of trustees will be next week, and we expect to begin distributing scholarships this fall.
Our road map for tribal higher education through the college fund is to support strategies that help us achieve what other national organizations and the President have supported, which is a 60 percent post-secondary credentialing or degree completion among the population served by our tribal colleges. At the American Indian College Fund, we support early childhood education in K–12 programs associated with the tribal colleges, create opportunities for access in meaningful post-secondary education experiences that support persistence and completion of our students, which leads to gainful employment.
We need our tribal colleges to remain open, to be financially viable and to grow as institutions. So we need your continued support for full funding of tribal colleges and their students, for the support of adult and remedial education, to support child care and expanded student support services, all within your domain as the Senate Committee, in order for us to have our shared dream of prosperity come true.
Road Map for the Future
As we see the numbers of Native students enrolling at tribal colleges increasing, there is a growing need for scholarships and funding for programs at the tribal colleges that impact student success—while the unmet need continues for current tribal college students.
The American Indian College Fund’s plan for the future is simple: we want to educate 60 percent of American Indian and Alaska Native People served by our tribal colleges and universities by 2025. With an educated American Indian and Alaska Native citizenry dedicated to working for change in their communities, we can transform Indian Country from a landscape of desperation to places of aspiration, inspiration, and imagination. This transformation contributes to a better America, one where equity and social justice thrive, and where diversity and identity are valued.
The American Indian College Fund will implement a four-step plan to provide students with financial access to a post-secondary education and to support tribal college programs and initiatives focused on student support so tribal college students succeed to positively impact their families and their communities. In the past 25 years the American Indian College Fund has distributed approximately $76,000,000 to support TCU capacity-building and student success efforts at the tribal colleges. Funding is also needed in this arena to ensure student success.
Step one of the plan includes funding the following programs to prepare students for future success. Students in grades kindergarten-fifth grade: early childhood education; Science, Technology, Education, and Mathematics (STEM) programs and initiatives; literacy; and Native language and cultural immersion. Students in sixth-twelfth grade: STEM programs and initiatives; leadership and mentoring; cultural education programs; learning labs; tutoring, study skills, and career planning; and bridge programs including early college programs.
Step two of the plan includes providing access to post-secondary education, including career and skills advising; GED preparation; college readiness and academic preparedness; financial support to make postsecondary education affordable; and building partnerships with high schools and community resources.
Step three is to provide meaningful higher learning opportunities, including academic, career, and technical education programs for a variety of career paths and skill levels; integrating technology as a resource for student learning and institutional advancement of student success; cultural integration and place-based educational strategies, including Native language; apprenticeships and internships; initiatives to support student adaptation to higher education for success; mentoring programs; leadership programs; fellowships and faculty development; development of candidates for future professional education; accreditation support; and partnerships and collaboration with private entities for supportive, cutting-edge learning opportunities.
Step four is to provide support for meaningful employment for tribal college graduates. Programs include counseling and support for new or first-time employment; career advancement planning; career centers; job search workshops and support; leadership programs; mentoring; and follow-up with tribal college alumni to assess program impact.
As we move forward into our next 25 years, the College Fund will strategically bring private sector dollars to the tribal colleges and their students to support all areas of institutional development and community outreach. The trust responsibility of the federal government to provide equitable and high quality educational access and success for AIAN is essential. We support the goals of AIHEC and the tribal colleges to develop greater federal funding to support tribal college student success in the following areas, particularly if sequestration is re-instituted: (1) federal funding for TCU operations so they can remain open and keep tuition low to provide student access to a higher education; (2) funding for GED/ABE programs so students can complete high school and continue their educations (on average, less than 50 percent of Native students graduate from high school each year in the seven states with the highest percentage of American Indian and Alaska Native students, according to The Civil Rights Project); (3) funding for day care centers at the TCUs (which are currently subsidized by about $250,000/year); and (4) funding for TCU student support services that directly impact student success, retention, and graduation rates.
Source: Excerpts from statement by Cheryl Crazy Bull, President/CEO, American Indian College Fund, for Indian Education Series: Examining Higher Education for American Indian Students, before the Committee on Indian Affairs, United States Senate, 113rd Congress, 2nd Session, June 11, 2014.
Further Reading
American Indian College Fund website. April 27, 2015. http://www.collegefund.org
American Indian Higher Education Consortium website. April 27, 2015 http://www.aihec.org
Carney, Cary Michael. Native American Higher Education in the United States. New Brunswick, NJ: Transaction Publishers, 1999.
Gipp. David M. “The Story of AIHEC,” in Warner, Linda Sue, Gerald E. Gipp, eds. Tradition and Culture in Millennium: Tribal Colleges and Culture in the Millennium. Charlotte, NC: IAP-Information Age Publishing, 2009, 7–15.
Reyhner, Jon, and Jeanne Eder, American Indian Education: A History. Norman: University of Oklahoma Press, 2004.
Stein, Wayne J. Tribally Controlled Colleges: Making Good Medicine. New York: Peter Lang Publishing, 1992.
Szasz, Margaret. Education and the American Indian: The Road to Self-Determination since 1928. 2nd ed. Albuquerque: University of New Mexico Press, 1977.
The Carnegie Foundation for the Advancement of Teaching, Tribal Colleges: Shaping the Future of Native America. Lawrenceville, NJ: Princeton University Press, 1989.
The College Fund website. April 27, 2015. http://trends.collegeboard.org/college-pricing/figures-tables/tuition-fees-room-board-time-2004-05-2014-15
Tierney, William G. Official Encouragement, Institutional Discouragement: Minorities in Academe—The Native American Experience. Norwood, NJ: Ablex Publishing Corporation, 1992.
Tribal College: Journal of American Indian Higher Education.
U.S. Senate. Hearing before the Committee on Indian Affairs, Indian Education Series: Examining Higher Education for American Indian Students. 113th Cong. 2nd Sess. June 11, 2014.
White House Conference on Education Task Force. The Final Report of the White House Conference on Indian Education: Executive Summary, May 22, 1992.
White House Initiative on American Indian and Alaska Native Education, Department of Education. April 27, 2015. http://www.ed.gov/edblogs/whiaiane/tribes-tcus/tribal-colleges-and-universities
Voorhees, Richard A. “Characteristics of Tribal College and University Faculty,” Voorhees Group, LLC: Littleton, CO, August, 2003. April 27, 2015. http://www.collegefund.org/userfiles/file/TCUFacultyPaper11.pdf
Native American Graves Protection and Repatriation Act, 1990
Joe Watkins
Chronology
1620 |
Pilgrims land from England at Plymouth Rock; eight days later, they rob an Indian grave. |
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1832 |
Samuel George Morton requests human skulls to build his collection to document the influence “race” might have on intelligence and social standing. |
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1846 |
The Smithsonian Institution is established. |
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1868 |
The last treaty with an Indian tribe (the Nez Perce) is ratified. |
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1887 |
General Allotment Act passes Congress. Communal tribal lands fractionated to individual ownership with “left over” lands open to general settlement. |
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The Wounded Knee Massacre results in the death of Sioux Chief Big Foot and nearly 300 other Sioux men, women, and children, marking the last “battle” of the frontier. |
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1924 |
American Indians are provided citizenship. |
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1934 |
Indian Reorganization Act is passed. |
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1953 |
Passage of House Current Resolution 108 allows termination of federal trust relationship to tribes that accept it. |
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1964 |
Passage of Civil Rights Act of 1964 allows equal treatment under the law. Tribal human remains are not provided treatment equal to non-Indian burials and cemeteries. |
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1971 |
Iowa cemetery is disturbed by highway construction: remains of 26 European-American reburied; remains of Indian woman from same cemetery are sent to state museum. |
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1976 |
Iowa Burials Protection Act is passed. |
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1978 |
American Indian Religious Freedom Act is passed; federal agencies are required to report to Congress about policies that impact practice of American Indian religion. |
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1979 |
Archeological Resources Protection Act defines human skeletal remains as “archeological resources.” |
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1985–1989 |
Scientific organizations study American Indian concerns about the continuing excavation, study, display, and retention of American Indian human remains and sacred objects. |
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1989 |
National Museum of the American Indian Act (P.L. 101–185) creates the National Museum of the American Indian and initiates repatriation of human remains and other cultural items to tribes. |
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1990 |
Native American Graves Protection and Repatriation Act (NAGPRA) (P.L. 101–601) requires museums and federal agencies to repatriate human remains and other cultural items to tribes. |
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1996 |
Human skeletal remains of Kennewick Man/The Ancient One (9,000 years) discovered washing out of the Columbia River in Kennewick, Washington. Court case is filed by six scientists to halt repatriation. |
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2004 |
District Court Magistrate John Jelderks determines Kennewick Man not “Native American” under NAGPRA, since there was no possibility of establishing “cultural affiliation” between a 9,000-year old skeleton and a currently existing Indian tribe. |
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Skeletal remains of Kennewick Man/The Ancient One are stored in climate-controlled storage cases in the University of Washington’s Burke Museum in Seattle, Washington. |
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2014 |
Anzick Boy (12,600 years old) reburied in Montana after study and publication of DNA material. |
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2015 |
DNA of Kennewick Man published indicates a genetic relationship with members of the Colville tribe of the American Northwest. |
Introduction
Thanksgiving is often celebrated in elementary school as a time of celebration, with stories about how the Pilgrims, starving that very first winter in America, were saved by the Indians. Squanto, the Indian who taught the Pilgrims how to plant corn kernels and to use fish as fertilizer to make the corn grow better, is held out as a hero to be memorialized. If you remember those stories, you will realize how great a role American Indians played in helping the Pilgrims to survive and flourish.
But other stories are rarely told. Some of the Pilgrim explorers, soon after arriving in their new land, dug up a grave of a man and a small child, and took along some cultural artifacts before covering up the bones again. Thus, only eight days after the Pilgrims had first anchored off Plymouth, Massachusetts, American Indian graves had been plundered for their contents.
Of course, grave robbers and looters are not the only people who are interested in the things left behind by people in North America. Scientists, among them anthropologists and archaeologists, often collect bits and pieces left behind by inhabitants as part of their research. These materials can provide information that helps us better understand the cultures that lived in North America; museums also view the preservation of objects from the past as a part of their duty because those items can be used to help teach people about all the different cultures that once existed or that currently exist in the world.
But, in spite of the utility these remains might have to science, many American Indian tribes, families, and individuals want museums to give human skeletal remains and special cultural objects back to the people to whom they once belonged so that tribes can ceremoniously rebury the human remains or reintroduce the sacred objects as part of their traditional religious practices. Their belief is that these sorts of materials are very important to tribes and to the families of the individuals who have been disturbed and placed on display like non-human animals.
The 1950s and 1960s were a time of social and political unrest, especially in the area of civil rights. During the 1960s, the “Pan-Indian” movement began. By identifying the problems of any American Indian group as a matter of concern for all living American Indian groups, it reflected a new political consciousness, and groups of non-related Indians began to work together for the benefit of all Indians.
Proponents of Native unity were seen as a threat by many anthropologists who sometimes felt the American Indians were attempting to restrict the anthropologists’ freedom to carry out research. The idea that anthropologists have a moral right to access cultural material because their research is aimed at producing knowledge for the public benefit is in apparent conflict with the beliefs held by most American Indian groups. Anthropologists who once enjoyed good relationships with particular tribal groups were dismayed to find that new political groups such as the American Indian Movement (AIM) were trying to initiate changes in the way research was done. These organizations, made up of individuals from many different tribes rather than representatives of just a single tribe, used protests and other militant actions to make their points. Anthropologists were often taken aback by these tactics.
Repatriation, in its basic sense, is the act of returning something to its Native country. After wars, prisoners are “repatriated” to their home countries, usually with great fanfare. American Indian actions in the 1970s and 1980s were aimed at drawing attention to the fact that, in the Indians’ belief, many important cultural items were—and still are—being held prisoner in foreign museums and that they need to be returned to their proper homes.
In 1978, Congress passed the American Indian Religious Freedom Act, a piece of legislation that required federal agencies to examine the ways their policies might impact the religious freedom of American Indians. One of the issues identified by American Indian groups was the status of human remains encountered in archaeological excavations and maintained in museum and institutional collections across the United States.
American Indian groups continued to push for the return of skeletal remains and to draw attention to the perceived inconsistency in the scientific study of American Indian human remains and the reburial of non-Indian remains encountered in projects.
Anthropologists might view human skeletal material as important to science, but American Indian concerns about human remains extend beyond the physical bones themselves. The bones represent living people, not just pieces of calcium. The Navajos, for example, have a ceremony whose sole purpose is to relieve what is called “ghost-sickness”—an illness caused by contact with spirits, ghosts, or places where ghosts are thought to reside. The importance of protecting the human remains of a culture from outsiders seems obvious, especially if tribal groups go to such extremes to protect themselves from the spirits associated with the remains.
Sidebar 1: Six Laws That Led to the Native American Graves Protection and Repatriation Act
American Indian groups have been concerned about human remains in museum and archaeological collections for a long time. During hearings held on the American Indian Religious Freedom Act of 1978 across the United States, elected and traditional leaders of numerous tribes spoke out against the disturbance of Indian graves and cemeteries. They also spoke of their desires to have Indian skeletons reburied as close as possible to the places where they had been dug up.
Other organizations worked to have human remains removed from museums. In Kansas, for example, the Pawnee tribe worked to get a tourist attraction that exhibited Indian skeletons closed, and the skeletons reburied; in Nebraska, they worked with other legislators to get a law passed that required the reburial of Indian skeletons. Such actions by tribal groups and groups of members of different tribes to get American Indian skeletal material reburied made it easier for nationwide legislation to be proposed and passed.
The Native American Graves Protection and Repatriation Act
The Native American Graves Protection and Repatriation Act (NAGPRA) affirms the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to custody of Native American human remains, funerary objects, sacred items, and objects of cultural patrimony held in federal museums or agencies, or in museums that receive federal funds. Signed into law by President George H. W. Bush in November 1990, NAGPRA places the responsibility for compliance upon federal agencies and museums that receive federal funds. It requires all federal departments, agencies, or instrumentalities of the United States (except for the Smithsonian Institution) to complete summaries and inventories of Native American materials in their control (including those held by nongovernmental repositories). The affected organizations were also ordered to ensure compliance regarding inadvertent discoveries and intentional excavations of human remains conducted as part of activities on federal or tribal lands.
NAGPRA was not the first repatriation law passed. In 1989, Congress passed the National Museum of the American Indian Act (NMAIA) to establish a new National Museum of the American Indian. At the same time, it also required the Smithsonian Institution to inventory, document, and, if requested, repatriate culturally affiliated human remains and funerary objects to federally recognized Native groups. But NAGPRA is much more far-reaching.
NAGPRA lays out a mechanism for federal land managers, museums, and agency officials to consult with lineal descendants and tribal groups and to reach a determination regarding the proper disposition of human remains, associated funerary objects, objects of cultural patrimony, and sacred objects that might be excavated or discovered on federal or tribal lands. The processes for dealing with excavations or discoveries on federal or tribal lands are different from those for dealing with the disposition of objects within museum or federal agency collections, but the ultimate goal of NAGPRA is to return to the individual or tribe the materials under consideration.
The law required museums and federal agencies to go through all of their collections and identify items which might be subject to repatriation, giving them a three-year deadline to provide summaries of items that the museum thought might be unassociated funerary objects (known grave goods which are not associated with a particular set of human remains or where the museum does not own the human remains), sacred objects, or objects of cultural patrimony. Museums and agencies were given six years to consult with tribes to create an inventory of human remains and associated funerary objects within the possession or control of the institution.
Under NAGPRA, there are various categories of people who have the right to make a claim for the items covered under either law. The people who can make a claim vary, depending upon the item under consideration. For human remains, lineal descendants (those who can demonstrate direct ancestry to a named individual) have the first right to reclaim skeletal material. If there are no lineal descendants, or if the personal identity of the individual skeleton is unknown, then the tribe of the individual can request a return. If the tribe is not known, then the tribe on whose land the set of human remains was found may request the return of the material. Finally, if the remains were not found on tribal land, then the tribe on whose aboriginal territory the remains were found may request a return. In all of the above circumstances, any items that were thought to be placed with the remains at time of burial are subject to the same repatriation priority as the human remains.
In the case of unassociated funerary objects, the priority of claimants is similar—going to the tribe who is likely to have produced the items, the tribal group on whose land the materials were found, and then the tribal group on whose aboriginal territory the materials were found.
Finally, in the case of sacred items and objects of cultural patrimony, only the tribe that claims the artifacts may make a request. Since by their very nature, such artifacts may not be owned by individuals, only entire tribes are allowed to make requests for returns.
Native American groups hailed the passage of the NAGPRA as an opportunity to right centuries-old wrongs perpetrated against American Indian graves. NAGPRA gave American Indians some of the tools necessary to implement the changes they had demanded in the 1970s, even if the law has some inadequacies, such as the continued scientific study of human remains; the inconsistent application of repatriation statutes to extremely old material; repatriating the human remains of non-federally recognized tribes; materials found on private land; and the return of materials that are important to particular members within a tribe but are not classified as “tribal sacred items” or “items of cultural patrimony.”
NAGPRA does not authorize the initiation of new scientific studies, but it does not preclude such research when a museum deems it necessary for determining the cultural affiliation of a set of human remains. Additionally, the law allows for the continuation of studies when the human remains under examination are indispensable for the completion of a specific scientific study, the outcome of which would be of major benefit to the United States. Many tribes are concerned about this, believing the law provides an apparent authorization for study prior to repatriation. Scientists and museums argue that it is often necessary for human remains to be studied so that cultural affiliation may be determined or so that repatriation to the most appropriate descendants or tribe can be carried out. Tribes want to curtail scientific studies of any kind on ancestral skeletal remains where existing documentation establishes geographic location and cultural affiliation by clear, reasonable belief, or by a preponderance of evidence.
Tribes are also concerned about scientific study on human remains that are so old that no tribe can demonstrate a clear cultural affiliation to it. In 1996, a set of human remains was found washing out of the bank of the Columbia River near Kennewick, Washington. Tribal groups were set to accept the remains for reburial when scientists sued for the right to conduct scientific research on the material, arguing that NAGPRA was not meant to apply to remains as old as those of Kennewick. They argued that such remains, by the very nature of their age, cannot be assigned to any single tribe, or, more specifically, that no single tribe can demonstrate cultural affiliation with a set of human remains so old. In 2004, the court decided that the remains did not meet the definition of “Native American” under the law, and were thus outside of the realm of NAGPRA. The discoveries of more and more ancient human remains have not alleviated this issue, and still contribute to a mistaken idea of American Indian origins in this hemisphere.
American Indian views on allowing repatriation of human remains and appropriate cultural items to non-federally recognized tribes are divided, but for differing reasons. Many Indians feel that non-federally recognized tribes are no less “Indian” than their federally recognized counterparts. Others are afraid that allowing unrecognized tribes equal standing under NAGPRA would allow such groups to bypass the tedious process of federal recognition.
Though all tribes agree that the human remains of unrecognized American Indian groups always were, and always will be, American Indian, many are concerned about extending rights to non-recognized groups under NAGPRA. While no specific remedies are defined for every case, tribes have offered suggestions for disposition in cases where the human remains are associated with a non-federally recognized tribe. The NAGPRA Review Committee (a group of seven people established to monitor and review the implementation of the inventory and identification process and repatriation activities) has suggested regional consultations that might prove beneficial in situations where the human remains represent a population for which there are no present-day cultural survivors or where the present-day cultural survivors are members of non-federally recognized Indian tribes.
Gravemarkers of American Indian warriors at Little Bighorn Battlefield National Monument, 2016. The markers were added to the memorial in 1999. While American Indian burial grounds and graves have historically been treated as archeological finds, the Native American Graves Protection and Repatriation Act of 1990 has helped increase awareness regarding protecting and respecting gravesites. (A. Nadeau)
Another failure of the NAGPRA is its ability to protect human remains on private land. Many American Indian groups can only vaguely understand why the graves protection portion of NAGPRA was not applied to all lands within the United States rather than just federal or tribal lands. At least 34 states have burial-protection laws, and these laws typically prohibit the intentional disturbance of unmarked graves. Many of the laws also provide guidelines to protect the graves and mandate disposition of human remains in a way that guarantees reburial.
If such state laws designed to protect human remains have been upheld as constitutionally valid, it raises a question as to why NAGPRA was not applied to all lands. The National Congress of American Indians has called for changes in NAGPRA to extend protection of funerary remains and objects on all lands, wherever they might be located, within the exterior boundaries of the United States.
There are also certain objects within museum collections that were once the property of particular Indian individuals but that do not easily fall within the definition of “sacred” items or “objects of cultural patrimony.” Some tribal individuals owned property that was important to their tribe even though they were privately owned and could be sold or given away. For example, a Kiowa war chief named Satanta had a war shield that did not have a specific role in Kiowa ceremonies, but nonetheless was given a place of honor in the last Sundance of the tribe. The shield ultimately made its way to a prominent museum in northern California, where the family eventually located it. The museum had a valid right to ownership, as indicated by the original accessions records.
The shield is not sacred, nor is it an object of cultural patrimony under NAGPRA. However, it is both sacred and an object of cultural patrimony to the Kiowa tribe and the family. It is believed to possess powers that were given it by its maker, and it was a part of the tribal cultural inventory relating to the Indian Wars of the 1860s and 1870s, as well as an important object related to one of the last war chiefs of the Kiowa. NAGPRA is not set up to handle this level of interpretation.
Repatriation for Good or Bad
Contrary to the fears of members of the scientific and museum communities, repatriation has not led to the destruction or anthropology or the wholesale gutting of museums. It has perhaps led to a series of inconveniences between the disciplines and American Indians, but it has also led to the formation of some strong partnerships that have proven beneficial to all.
Museums have been placed in a situation where financial concerns have risen by virtue of the need to inventory all of their collections to determine whether they possessed items that were covered under the NAGPRA. At the same time, these inventories have also proven to be a blessing in that they have forced museums to identify any deficiencies in their records or any gaps in their collections.
American Indians have benefited from the repatriation laws in various ways. Some tribes have been able to regain the remains of their ancestors for reburial (or, in some instances, initial burial). This has lessened the social hardships experienced by some tribes. Other tribes, such as the Zuni and the Onondaga, have been able to regain ownership and control over items of cultural importance to their people. Additionally, museums and American Indians have developed a sort of uneasy truce concerning collections and ethnographic information provided in museum displays.
There are some areas in which American Indians feel that NAGPRA is deficient. Many of those issues have already been discussed, but other issues will likely arise in the future. Those involved in repatriation hope that, through careful consideration of the history of repatriation and the ongoing struggle to find a middle ground where all interested parties can meet, repatriation will prove to be of some benefit to everyone it affects.
Biographies of Notable Figures
Maria Darlene Pearson
Maria Darlene Pearson was born on July 12, 1932, in Springfield, South Dakota, as Darlene Elvira Drappeaux. A member of the Yankton Dakota tribe, she was given the name “Hai-Mecha Eunka,” which means “Running Moccasins.” She married John Pearson in 1969 and spent most of her adult life in Iowa, where her actions successfully challenged the legal treatment of Native American human remains in that state. Her actions there served as one of the primary catalysts for the creation of the Native American Graves Protection and Repatriation Act (NAGPRA), leading to her being called “the Founding Mother of the modern Indian repatriation movement” and “the Rosa Parks of NAGPRA.”
Pearson’s involvement with repatriation issues began in 1971, when she learned from her husband, a district engineer for the Iowa highway commission, that the skeletal remains of Native Americans were treated differently from white remains. Her husband told her that both Native American and white remains were uncovered during road construction near Glenwood, Iowa. While the remains of 26 white burials were quickly reburied, the remains of a Native American mother and child were sent to a lab for study instead. After Iowa state archaeologist Marshall McKusick responded that he was required by Iowa law to study the bones until their historic significance could be determined, Pearson protested to Gov. Robert D. Ray. When Ray asked what he could do for her, Pearson is quoted as saying, “You can give me back my people’s bones, and you can quit digging them up.” Ray agreed that the differential treatment of the human remains was discriminatory, and the ensuing controversy led to the passage of the Iowa Burials Protection Act of 1976. The Iowa law was the first legislative act in the United States that specifically protected Native American remains and provided equal treatment of human remains under the law. Her actions are also considered to be one of the catalysts for the creation of NAGPRA.
Emboldened by her success, Pearson went on to lobby national leaders and national organizations such as the Society for American Archaeology and the American Anthropological Association. She was involved in the actions that led the World Archaeological Congress to create and pass the Vermillion Accord on Human Remains in 1989, and continued to be involved in indigenous issues. She was deeply involved with the World Archaeological Congress’s actions in Barquisimeto, Venezuela, that led to the WAC Executive’s adoption of the First Code of Ethics, which specifically dealt with archaeologists’ responsibilities to indigenous peoples, in 1990.
Twice nominated for the Nobel Peace Prize, Maria Pearson—Running Moccasins—died in Ames, Iowa, on May 23, 2003.
Daniel K. Inouye (1924–2012)
Daniel Ken Inouye, the United States Senator from Hawaii, was deeply involved in the hearings that led to the development and passage of the Native American Graves Protection and Repatriation Act. As the chairman of the Senate Select Committee on Indian Affairs, Inouye stressed the inequitable treatment of American Indian remains during hearings on the proposed bill (Smith 2004: 140).
Inouye was born in Honolulu, Hawaii, on September 7, 1924. At the time of his birth, Hawaii was a territorial possession of the United States but not yet a state. He was 17 when Japan attacked the U.S. naval base at nearby Pearl Harbor, and as a medical aide, Inouye was among the first to treat the wounded. As a pre-med student and an Aid Station worker, he was exempt from military service, but he quit his job and dropped out of school to join the all-Nisei 442nd Regimental Combat Team. Inouye distinguished himself in basic training, and within his first year he was promoted to sergeant and platoon leader. On April 21, 1945, weeks before the fall of Berlin ended the war in Europe, Inouye led an assault on a heavily defended ridge known as Colle Musatello, near the town of Terenzo. Inouye suffered a wound to his midsection and leg, as well as a grenade wound that cost him his right arm. Inouye was awarded the Distinguished Service Cross for his heroism; he remained in the Army until 1947, when he was discharged with the rank of captain.
On his return to the States, Inouye committed himself to the cause of equal rights for all Americans, and for all residents of Hawaii as fully enfranchised American citizens. He returned to the University of Hawaii and pursued studies in government and economics. After graduating in 1950, he entered George Washington University Law School in Washington, D.C., receiving his law degree in 1952. Returning to Hawaii, Inouye was elected to the territorial legislature in 1954, where he served as leader of a new Democratic majority. In 1958, he was elected to the territory’s Senate.
With Hawaii’s approval for admission to the union as the 50th state, Inouye was elected to serve as Hawaii’s first U.S. Representative; he took his seat in Congress on August 21, 1959, the day Hawaii became a state. He was re-elected to a full term in the House the following year. In 1962, Daniel Inouye was elected to a vacant seat in the U.S. Senate, where he was soon appointed to the Senate Armed Services Committee. In 1984, Senator Inouye assumed the chairmanship the Senate Committee on Indian Affairs, seeking justice for the descendants of America’s first inhabitants. It was in this role that he sponsored and pushed through the passage of the Native American Graves Protection and Repatriation Act of 1990.
In 2000, after extensive review, the Distinguished Service Crosses awarded to Senator Inouye and 21 other Asian-American heroes of World War II were upgraded to full Medal of Honor status. For some, the honor came too late. Fifteen medals were awarded posthumously, but Senator Inouye and the other survivors were on hand to receive their Medals of Honor from President Clinton at the White House.
In 2009, Senator Inouye was appointed to chair the Senate Committee on Appropriations, widely considered the most powerful of senate committee assignments. The following year, Inouye became the Senate’s senior member, and in keeping with Senate tradition was named president pro tempore of the Senate. This placed Senator Inouye third in line of succession to the presidency, following the Vice President and the Speaker of the House.
At age 88, the Senator was admitted to Walter Reed Army Medical Center for treatment of respiratory complications. His wife and son were by his side at the moment of his death on December 17, 2012. His office reported that his last word was “Aloha.” After his death, Daniel Inouye, who had already received the nation’s premier military decoration, was awarded its highest civilian honor, the Presidential Medal of Freedom.
Suzan Shown Harjo
Suzan Shown Harjo was born on June 2, 1945, in El Reno, Oklahoma. Her mother was Cheyenne, and her father Muscogee, and the family lived on her father’s allotment near Beggs, Oklahoma, until the U.S. Army stationed her father in Naples, Italy, between her ages of 12 and 16 years. After her return to the States, she moved to New York City, where she met and married Frank Harjo.
The roots of Suzan Shown Harjo’s activism date from the mid-1960s, when she co-produced Seeing Red, the first Indian news show in the United States at New York’s WBAI FM station. She and her husband also worked on issues of protecting religious freedom for American Indians. After seeing sacred garments on display in the Museum of the American Indian in New York in 1967, she worked for repatriation to tribes of such items and for changes in museum policies.
Suzan and her husband moved to Washington, D.C., in 1974, when she started working as a legislative liaison for two law firms representing Indian rights. In 1978, President Jimmy Carter appointed Harjo as a congressional liaison for Indian affairs. Harjo worked with multiple subcommittees within Congress to advocate Native American positions in the formation of federal policy, supporting such issues as hunting and fishing rights on traditional lands, voting, and land contracts rights. Her continued lobbying related to religious freedom helped led to passage of the American Indian Religious Freedom Act (AIRFA) in 1978.
Harjo served as the Executive Director of the National Congress of American Indians (NCIA) from 1984 to 1989. The NCAI, a non-profit organization representing all Native American Indians as well as Alaska Natives, was founded in 1944. Harjo persisted in working with Congress to support Native American rights to traditional hunting and fishing. She supported gaining more funds for Native American education. The NCAI’s goal was to ensure that Native American children were educated, and with her leadership they gained increased appropriations for that purpose in 1984, 1986, and 1988. Harjo pressed the congressional committee to gain access to government documents related to programs for Native Americans, and asked for continued support of Native American attempts at economic development. In the 1980s, she was concerned about declining federal support for health clinics on reservations and the adverse result of subsequent higher mortality rates among Native Americans.
During this period, Harjo continued to work on issues of repatriation of sacred items from museums to tribes, and changes in the ways researchers dealt with American Indian human remains and artifacts. Her work, together with hundreds of others, resulted in additional reforms and national legislation in 1989 and 1990.
Harjo contributed to development and passage of federal legislation protecting Native sovereignty, arts and cultures, language, and human rights. These include the 1978 American Indian Religious Freedom Act, which allowed the protection of Native Americans for practice of traditional religion and rituals; the 1989 National Museum of the American Indian Act, which authorized establishment of the museum at two sites; the 1990 Native American Graves Protection and Repatriation Act (NAGPRA), which allows tribes to reclaim their human remains and ceremonial items from publicly funded institutions; and the 1996 Executive Order on Indian Sacred Sites.
As president of the Morning Star Institute, which she founded in 1984 in memory of her late husband, Suzan Harjo promotes sacred land claims and protection for traditional cultural rights, artistic expression, and research. The MSI sponsors Just Good Sports, devoted to ending use of American Indian mascots and stereotypes by sports teams, a cause of Harjo’s since the 1960s. Activism by Harjo and others has resulted in dramatic changes in the sports world since the late 20th century.
Harjo continues to be active in Indian activism but also contributes to the quality of American Indian life through her writing and poetry. During her fellowships at the School for Advanced Research in 2004, Harjo wrote poetry inspired by oral history related to her time working for land claims and repatriation laws and policies. She also is a columnist for Indian Country Today Media Network and a contributing writer for First American Art Magazine.
Because of the depth of her contributions not only to repatriation but also to bringing attention to contemporary American Indian issues, Suzan Shown Harjo was awarded the Presidential Medal of Freedom, the United States’ highest civilian honor, on November 24, 2014.
DOCUMENT EXCERPTS
Accidental Discoveries from Indian Graves in the United States
Part of the National Graves Protection and Repatriation Act provides explicit instructions on how to deal with accidental discoveries of human remains or other sacred objects covered by NAGPRA. Here is an excerpt from the act describing what must be done.
§10.4 Inadvertent discoveries
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and protect inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony, including, as appropriate, stabilization or covering;
(iii) Notify any known lineal descendants of a deceased Native American individual whose human remains and associated funerary objects were discovered of such discovery, and, with respect to a discovery of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony, notify the Indian tribes or Native Hawaiian organizations likely to be culturally affiliated with the cultural items, the Indian tribe or Native Hawaiian organization that aboriginally occupied the area, and any other Indian tribe or Native Hawaiian organization known to have a cultural relationship to the cultural items. This notification must be by telephone with written confirmation and must include information about the kinds of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony, their condition, and the circumstances of their discovery;
(iv) Initiate consultation on the inadvertent discovery pursuant to §10.5;
(v) If the human remains, funerary objects, sacred objects, or objects of cultural patrimony must be excavated or removed, follow the requirements and procedures in §10.3 (b) of these regulations; and
(vi) Ensure that disposition of all inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony is carried out following §10.6.
(2) Resumption of activity. The activity that resulted in the inadvertent discovery may resume thirty (30) days after certification by the notified Federal agency of receipt of the written confirmation of notification of inadvertent discovery if the resumption of the activity is otherwise lawful. The activity may also resume, if otherwise lawful, at any time that a written, binding agreement is executed between the Federal agency and the affiliated Indian tribes or Native Hawaiian organizations that adopt a recovery plan for the excavation or removal of the human remains, funerary objects, sacred objects, or objects of cultural patrimony following §10.3 (b)(1) of these regulations. The disposition of all human remains, funerary objects, sacred objects, or objects of cultural patrimony must be carried out following §10.6.
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and protect inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony, including, as appropriate, stabilization or covering;
(iii) If the human remains, funerary objects, sacred objects, or objects of cultural patrimony must be excavated or removed, follow the requirements and procedures in §10.3 (b) of these regulations; and
(iv) Ensure that disposition of all inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony is carried out following §10.6.
(2) Resumption of Activity. The activity that resulted in the inadvertent discovery may resume if otherwise lawful after thirty (30) days of the certification of the receipt of notification by the Indian tribe or Native Hawaiian organization.
Source: 60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 78 FR 27082, May 9, 2013.
Bray, Tamara. “Repatriation, Power Relations and the Politics of the Past.” Antiquity 1996: 70 (268): 440–444.
“Daniel K. Inouye Biography—Academy of Achievement.” Academy of Achievement. August 12, 2013. Accessed June 14, 2015. http://www.achievement.org/autodoc/page/ino0bio-1
Gradwohl, D. M., J.B. Thomson, and M.J. Perry (2005). Still Running: A Tribute to Maria Pearson, Yankton Sioux. Jointly published by the Iowa Archeological Society and the Office of the State Archaeologist.
Hutt, Sherry and David Tarler. Native American Graves Protection and Repatriation Act (NAGPRA): The Law Is Not an Authorization for Disinterment. U.S. Attorney’s Indian Country Issues. 2014. Bulletin 62(4):41–51.
Midler, Aaron H. “The Spirit of NAGPRA: The Native American Graves Protection and Repatriation Act and the Regulation of Culturally Unidentifiable Remains.” Chicago-Kent Law Review 2011: 89(3): 1331–61.
Pearson, Maria D. 2000. “Give Me Back My People’s Bones: Repatriation and Reburial of American Indian Skeletal Remains in Iowa.” In G. Bataille, D.M. Gradwohl, C.L.P. Silet, Perspectives on American Indians in Iowa-An Expanded Edition. Iowa City: University of Iowa Press. pp. 131–141.
Rennie-Tucker, Keely A. “Spirit of the Law: A Case Study in the Application of NAGPRA to Collections from Hopewell Culture National Historical Park, a Unit of the National Park Service.” Doctoral dissertation. 2005. Digital Commons@University of Nebraska-Lincoln.
Rose, Jerome C., Thomas J. Green, and Victoria D. Green. “NAGPRA Is Forever: The Future of Osteology and the Repatriation of Skeletons.” Annual Review of Anthropology 1996 (25), pp. 81–103.
Seidemann, Ryan M. “NAGPRA at 20: What Have the States Done to Expand Human Remains Protections?” Museum Anthropology 2010, 33(2):199–209.
Smith, Laurajane. Archaeological Theory and the Politics of Cultural Heritage. Routledge, 2004.
Trope, Jack F. and Walter R. Echo-Hawk. “The Native American Graves Protection and Repatriation Act: Background and Legislative History.” Arizona State Law Journal 1992,24(1):35–78.
Tsosie, Rebecca. “Privileging Claims to the Past: Ancient Human Remains and Contemporary Cultural Values.” Arizona State Law Journal, 1999 31(2):583–677.
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Watkins, Joe. “Sacred Sites and Repatriation.” Contemporary Native American Issues series. New York: Chelsea House Publishers, 2006.
Watkins, Joe. Indigenous Archaeology: American Indian Values and Scientific Practice. Walnut Creek, CA: AltaMira Press, 2000.
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Harjo et al. v. Pro Football, 1992
C. Richard King
Chronology
1932 |
The Boston Braves begin play in the National Football League (NFL). |
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1933 |
Owner George Preston Marshall moves the franchise from Braves Field to Fenway Park in Boston. He changes the team name to Redskins. He also hires William “Lone Star” Dietz, alumnus of Carlisle Indian Industrial School and veteran college coach. While many have speculated the team was named in honor Dietz, who was fraudulently passing himself off as an American Indian, Marshall stated clearly this was not the case at the time. Moreover, he fired Dietz after two seasons. |
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1937 |
Marshall moves the franchise to Washington, D.C. Over the next decade, he and his wife, Corinne Griffith, build the team brand around a stereotypical Indian motif. |
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1938 |
The team debuts a fight song, “Hail to the Redskins,” and a marching band. |
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1962 |
Under pressure from the federal government, the Washington professional football team becomes the last NFL franchise to integrate. |
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1969 |
Dartmouth College, originally founded to educate American Indians, changes from the Indians to Big Green. |
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1970 |
University of Oklahoma drops Little Red mascot. |
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1972 |
Stanford University changes from Indians to Cardinals and drops Prince Lightfoot mascot. |
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1972 |
Native Americans protest the Washington Redskins name, calling for it to be changed. They meet with then-owner Edward Bennett Williams to press their case. The team makes changes to the fight song, but retains name, logo, and other traditions. |
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Eastern Washington University changes from the Savages to the Eagles. |
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1991 |
Large protests against Washington professional football team at Super Bowl XXVI in Minneapolis. |
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1992 |
A group of seven American Indians, led by Suzan Shown Harjo, file suit against the franchise, seeking to strip it of its trademarks. This case becomes known as Harjo et al v. Pro Football, Inc. |
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1992 |
Washington Post columnists Clarence Page and Tony Kornheiser write pieces in support of the case. Kornheiser suggests that the team be known as the Pigskins. |
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1992 |
The Oregonian (Portland), among other newspapers, announce it will change its editorial policies related to teams with Native American mascots and names. It stops using the r-word in its coverage of the team. |
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1996 |
Miami University (Ohio) changes from Redskins to Redhawks |
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1998 |
Southern Nazarene University, a small Christian school in Bethany, Oklahoma, retires its “Redskins” nickname in favor of “Crimson Storm.” |
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1999 |
The U.S. Patent and Trademark Office finds that the Washington team disparages American Indians and thus violates the Lanham Act. Its ruling strips the team of its trademarks. The franchise secures an injunction while it appeals the ruling. |
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2001 |
The U.S. Commission on Civil Rights calls for an end to the use of Native American images and team names by non-Native schools. |
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2005 |
The NCAA establishes a policy on the use of American Indian imagery by member institutions. It bases this decision on its findings that such imagery contributes to a hostile environment. |
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2005 |
The U.S. Court of Appeals returns case to the D.C. Circuit for review. It directs specific attention at the question of laches, a doctrine covering the fairness and timeliness of the legal action, in the suit against the team. |
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2006 |
Prompted in part by the ongoing litigation in Harjo et al. v. Pro Football, Inc., a younger group of plaintiffs, to whom laches will not apply, files suit against the franchise. Led by Amanda Blackhorse, this case becomes known as Blackhorse et al. v. Pro Football, Inc. |
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2008 |
Following review, the court, finding that laches does apply, rules against the plaintiffs. |
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2009 |
The U.S. Supreme Court declines to hear an appeal in Harjo et al v. Pro Football, Inc. This decision brings the nearly two-decade-long case to a close. |
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The National Museum of the American Indian hosts a symposium on “Racist Stereotypes and Cultural Appropriation in American Sports.” Organized by Harjo, it plays a fundamental role in returning public attention to the issue. |
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2014 |
The Trademark Trial and Appeal Board rules in favor of the plaintiffs in Blackhorse et al v. Pro Football, Inc. It finds the team name disparaging to American Indians and strips of select trademarks. |
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2015 |
The ruling in Blackhorse et al. v. Pro Football, Inc. is upheld on appeal. The team plans subsequent litigation. |
Introduction
Harjo et al. v. Pro Football was a legal case brought against the Washington professional football team in 1992. It sought to strip of the team of its trademarks on the grounds that the name and imagery registered with the federal government disparaged American Indians and thus did not merit legal protection. The Trademark Trial and Appeal Board (TTAB) found in favor of the plaintiffs in 1999. The franchise subsequently appealed the decision, which higher courts reversed on technical grounds. The U.S. Supreme Court declined to hear the case in 2009, bringing it to an end. Despite the legal defeat, Harjo et al. v Pro Football has proven decisive in the ongoing struggle against the team and its traditions, opening a new era of activism and laying the foundation for additional litigation against the franchise.
American Indian Mascots
Although currently the source of great controversy, when schools and sport teams began using names, imagery, and objects referencing Native Americans during the first half of the 20th century, most Americans embraced them enthusiastically. This is hardly a surprise as Americans at once idealized them for their bravery, bellicosity, and nobility and thought them doomed, certain to disappear. This mix of longing and lament had special attraction for a society made anxious by the changes in work, family, race, and gender wrought modern life, including urbanization, immigration, and industrialization. Wild West shows and movies had romanticized settling the frontier, while scouting and childhood games, decorating trends, and more encouraged many to incorporate Indianness in their lives. In this context, it was as if everyone had a claim on Indianness, believing in a sense they owned Native Americans. As a consequence, large number of Americans felt comfortable with cultural appropriation, taking from American Indian culture to make something meaningful for themselves. Stereotypical images of American Indians proliferated, offering deeper insights into the preoccupations and problems of white Americans than indigenous cultures and histories.
American Indian mascots linger as a prominent vestige of this era. They present flat and frozen images of Native Americans. They emphasize themes of war, conflict, and violence. They favor peoples from the Great Plains in flowing headdresses especially, but wherever they are from, they prefer the fighting brave and a proud renegade of the 19th century, at once a testament to, and trophy of, white victory and entitlement.
These caricatures, stereotypical remnants of conquest, have recently sparked much scholarship and divisive debates. While the latter remain ongoing, as the Washington professional football team and legal action against it underscore, the former have highlighted the ways in which such imagery reinforces anti-Indian racism, damages indigenous self-worth, and contributes to hostile environments. Together, this body of scholarship has found that far from innocent symbols, Native American mascots hurt indigenous people, dehumanizing them and denying them full enjoyment of basic civil rights.
The R*dskins
The Washington professional football team began in Boston before moving to the nation’s capital. Founded in 1932 as the Boston Braves, the team moved to Fenway Park the following year, hired a new coach, and, in keeping with established practice at the time, also changed their name. Owner George Preston Marshall wanted to keep the Indian motif, but also wanted an identity distinct from other professional sporting franchises at the time. He chose to call the team the Redskins. While some maintain the name was chosen to honor the new coach, William “Lone Star” Dietz, who was a German American passing as a Native American, Marshall denied this at the time. A more likely explanation is that he hoped to build a brand and thought Dietz, whom most Americans took to be Lakota at the time, helped him consolidate the brand image.
In 1937, the franchise moved to Washington, D.C. Once there, Marshall and his wife elaborated on popular ideas and prevailing stereotypes about American Indians, creating a marching band, dressed in feathers, composing a fight song, “Hail to the Redskins,” noteworthy for its broken English and racist projections, and, in time, fitted out the stadium with a massive teepee. In short, stereotypical renderings of American Indians allowed the team to brand itself and a context in which fans and media partners felt comfortable playing with Indianness and dressing in feathers at games, perhaps best exemplified by Chief Zee, the super fan and unofficial mascot of the team since 1978.
Sidebar 1: “Hail to the Redskins”
The hallmark of the team and its symphonic signature would debut in 1938. “Hail to the Redskins” articulated many of the reigning ideas about American Indians at the time. The song with its line “Braves on the Warpath” celebrated and claimed indigenous masculinity for the team and its fans, encoding it like the Indian head aside the teams helmet as a trophy and a totem—romantic, stoic, brave, defeated, and repossessed. To underscore the intense savagery at once desirable and detestable, it cast vanquishing the opponent as scalping and employed broken English to drive the point home (“We will take ’em big score”). The later addition asserting that the team “Fight for old Dixie” makes plain the shape and scope of whiteness. Importantly, “Hail to the Redskins” has changed over time. It has lost the racist dialect whites put in the mouths of their imagined Indians and it has long since stopped celebrating Dixie. The racial slur remains, but the reference to Dixie has faded away; the broken English has been edited, beautified much like the origin story and evolving rationale. One, of course, wonders why, if these elements can be reconfigured, the team name and associated iconography cannot. (King 2016)
The team name anchors the brand and allows for these other embellishments. While there is little debate about whether the r-word is a fighting word and slur today, its origins remain unclear. Opponents of the team have long suggested the term has its origins in the practice of putting bounties on American Indians, which were paid for each (bloody) skin, or red-skin, delivered. Supporters, in contrasts, suggest it is merely a robust slang term for American Indians. Recent research has demonstrated fairly convincingly that the word emerged in Indian country in the late 18th century as a reference to indigenous people. Later, whites adopt it with a similar meaning; however, by the mid-to-late 19th century it had become a slur, deeply embedded in anti-Indian racism and ethnic cleansing. This process of perjoration, by which a term becomes a pejorative, or term that disrespects and denigrates, is well known in linguistics, and also happened to the “n-word” in a slightly different, albeit equally racist, context.
American Indians had voiced opposition to the team name beginning in the early 1970s, pressing the franchise to change it. Their efforts largely fell on deaf ears. So too, did protests at home games in the 1980s and a massive demonstration at the Super Bowl in Minneapolis in 1991.
Against this backdrop, Harjo et al. v. Pro Football takes shape. Ownership unwilling to dialogue, and a public unmoved by the persistence of anti-Indian racism demanded a new strategy, which was found in an unlikely place, the registration of trademarks and the legal protections that these grant a corporation. The Lanham Act, specifically its provisions that one cannot register or receive protection for a trademark that disparages people, beliefs, or institutions and brings them into contempt or disrepute, provides an ideal means to challenge the team and its traditions. Suzan Shown Harjo (Cheyenne and Hodulgee Muscogee), Raymond D. Apodaca (Ysleta del Sur Pueblo), Vine Deloria Jr. (Lakota), Norbert S. Hill Jr. (Oneida), Mateo Romero (Cochiti Pueblo), William A. Means (Lakota), and Manley A. Begay Jr. (Navajo) filled suit against the National Football, who registered the trademarks on behalf of the team in 1992. Importantly, the case would not hinge not on whether the trademarks were disparaging in the year filed, but in the year registered, which was 1967.
The plaintiffs argued the team name and associated imagery used by the team disparaged American Indians. They further argued the r-word was a slur that brought Native Americans into contempt and disrepute. Finally, they asserted that American Indians shared this opinion. The team and the league, in turn, argued that the team name was not a slur at the time of registration, was not widely regarded by Native Americans or the American public generally as a pejorative, and that for most Americans the r-word in the context of the NFL referred to the team and its players. Both sides marshaled linguistic and historical evidence in support their claims. Shifting usage played an important role. How was the word used? When and by whom? In what contexts? So, too, did dictionary definitions, that is, when dictionaries begin to define the term as offensive.
Seven years after its filing, the TTAB ruled that the team name and associated marks were, in fact, disparaging and brought American Indians into contempt and disrepute. In essence, it found that the team did not enjoy legal protection for its trademarks because they were offensive and scandalous.
The victory was short-lived. The franchise appealed the case and received an injunction, staying the action of the TTAB. Following subsequent arguments by both sides, the district court ruled in favor of the Washington professional football team. Of special note, it ruled that the plaintiffs had not filed suit in a timely fashion, pointing to a legal principal known as “laches,” which holds that fair and just adjudication requires individuals to assert their rights with due diligence. Thus, because the plaintiffs waited 25 years after the registration of the trademarks to file litigation, they had not fulfilled their legal obligations. Left unresolved in this ruling, however, was the claim of plaintiff Mateo Romero, who was only one in 1967. The U.S. Supreme Court refused to hear an appeal by the plaintiffs in 2009.
The refusal by the nation’s highest court brought the case to a close, but it was not the end of Harjo et al. v. Pro Football. In fact, it lives on today, a vibrant force in efforts to change the name of the Washington professional football team. Specifically, it has reshaped activism against American Indian mascots and it has prompted further legal struggles.
The struggle against the term might be divided into four phases. The first had its roots in the broader indigenous renaissance of the 1960s, the emergence of red power, and diverse freedom struggles, particularly the civil rights movement. It was given its clearest expression in the demands for change in 1972 and prompted the organization to make minor alterations, including changes in the lyrics of the fight song. Second, after a lull, efforts quickened again in the late 1980s and early 1990s in conjunction with a resurgent push across the country to retire mascots. Protests and rallies at RFK Stadium during this period, according to Charlene Teters (Spokane), who helped organize them, were usually small, ranging from 20 to 50 demonstrators, and arguably climaxed in demonstrations at Super Bowl XXVI in Minneapolis. In the third phase, initiated in Harjo et al. v. Pro Football the movement shifted tactics to the courtroom, pushing to the end the anti-Indianism associated with the name by stripping the team of its trademarks. Finally, the most recent incarnation of activism begins with the filing of Blackhorse et al. v. Pro Football, Inc., which shared arguments and objectives with the previous case, which has, in turn, opened new forms of opposition while invigorating a new generation of activists. In this more recent action, the plaintiffs, all of whom were born after 1967, have dispensed with the problem of laches. In 2014, the TTAB again found in favor of the plaintiffs, ruling the trademarks were disparaging and thus without legal standing. An appeals court decision affirmed this ruling in 2015. The franchise has indicated its intention to continue the defense of its trademarks.
“We are people, not your mascot,” shout American Indians participating in a protest of the name and logo of the Washington State football team before the game, 2014. Derogatory Indian mascots have been protested since the National Congress of American Indians led a national campaign in the early 1970s. (Toni L. Sandys/The Washington Post via Getty Images)
Sidebar 2: Changes in Attitudes toward Native Mascots
Even as the Washington professional football team has resisted calls for it to retire its moniker, numerous sport teams have opted for change. Over the past 40 years, many educational institutions have selected new mascots in response to pressure from the public, growing opposition in Indian country, and concerns voiced by their students. And while many professional teams have displayed intransigence, some have taken a more progressive path.
The Golden State Warriors began play in Philadelphia, initially employing symbols referencing American Indians. Even after moving to California in the 1960s, their logo featured a war bonnet, which was retired in 1969 in favor of a silhouette of the Golden Gate Bridge.
This rather quiet elimination stands in contrast to vocal movements led by Native American students on college campuses at the same time. In the late 1960s, and early 1970s, numerous universities, including Stanford University, Dartmouth College, and Marquette University, choose new mascots.
Opposition to Native American mascots flared again in the 1990s. Increased scrutiny prompted many school districts and universities to select new monikers and symbols. Miami University (Ohio) was among the most visible in this period, making the shift, amid much controversy, from Redskins to Redhawks.
More recently, a NCAA policy banning the use of Indian names and symbols has prompted change at a number of colleges and universities, including the University of North Dakota and the University of Illinois. Importantly, the policy allows for the continuation of such imagery at schools with support from local tribes. Both Florida State University and Central Michigan University have maintained historic logos under this provision.
Among the more creative responses to indigenous activism and changing public attitudes, the Spokane Indians (a minor league baseball team) worked the Spokane tribe to revision its public image. The collaboration produced a new logo and uniforms, incorporating indigenous language prominently.
The current moment of activism is arguably the most visible and has had the most impact to date, distinguished by novel media, strategies, and networks. Resistance now manifests itself on multiple fronts, in demonstration outside of games at FedEx Field and across the country, in the courtroom, in legislative action at the state, local, and federal levels, at academic conferences and political symposia, within traditional media outlets, and across social media. It is a national movement; it is pan-Indian, inter-tribal, and multi-ethnic. It has firm institutional footing across Indian country, including longtime opponent the National Congress of American Indians, the National Museum of the American Indian, and the Oneida Indian Nation. They, in turn, have encouraged and even spawned new oppositional groups, including one called Change the Mascot and another called Not Your Mascots. Together, they have anchored a more sustainable movement, which can more persistently, systematically, and effectively intervene and incite, and match the franchise organizationally in placing its message in the conventional media outlets. Arguably more importantly, the current iteration of the movement has masterfully used social media to advance the cause. It has made this virtual and viral space indigenous: it has organized online, recruiting new members, linking liked-minded individuals, and diffusing its message widely; it has pushed back with websites and Twitter storms targeting the franchise; it has raised money and consciousness; and it has created and disseminated videos, many of which have gone viral. And thanks in large part to research associated with litigation and a rising tide of scholarship, especially into the psychological, historical, and cultural dimensions, it has leveraged a powerful empirical case against the moniker that complements and extends its forceful moral argument against it. Throughout, the present phase of the movement remains committed to the ideals that gave life to opposition more than 40 years ago, challenging anti-Indianism embodied by the team and its traditions, pushing for change to alleviate it, and determined to reclaim and revalue indigeneneity.
Biographies of Notable Figures
Suzan Shown Harjo (June 2, 1945), born in El Reno, Oklahoma, to a Cheyenne mother and Muscogee father, has devoted her life to the defense of American Indians’ rights, the promotion of religious freedom for indigenous peoples, and the protection of Native heritage, dignity, and identity. She has pursued these ends through art and poetry, museum work, policy advocacy, legislation, and litigation.
A descendant of Chief Bull Bear, Harjo grew up on a farmstead near Beggs, Oklahoma. “Her family’s home,” she recalled, “had no indoor plumbing or electricity, and her idea of wealth was to have ice cubes in her drink” (Belson). Later, during her adolescence, she moved with her family to Naples, Italy, where her father was posted by the U.S. military.
Harjo points to Clyde Warrior (Ponca) as an inspiration for her activism. Of special import to her was his activism against Little Red, a mascot at the University of Oklahoma, which was retired in 1970.
Harjo moved to New York City in the 1960s. There, she was active in the theater scene and became a producer on Seeing Red, a bi-weekly radio program devoted to American Indian Affairs. During this time, she found two of her important callings while visiting the Museum of the American Indian, repatriation, or the return of cultural patrimony to Native Peoples, and the protection of sacred objects and practices. While at WBAI, she met and married Frank Ray Harjo, with whom she had two children.
In 1974, Harjo relocated to Washington, D.C., where she took a position with the American Indian Press Association. After assisting with the transition of the Carter Administration, she became a legislative liaison for the Native American Rights Fund. This experience, in turn, led to her appointment as the congressional liaison for Indian affairs for the Carter administration in 1978. In this role, she played a leading role in the passage of the American Indian Religious Freedom Act.
After the election of Ronald Reagan, she remained in the nation’s capital, where she sought to advance American Indian interests and issues through policy, advocacy, and legislation. Perhaps most notably, she served for as executive director of the National Council of American Indians from1984 to 1989. At the same time, following the death of her husband in 1984, she founded the Morning Star Institute, a national Native American rights organization, and has since served as its director. In these roles, she made important contributions to the passage of legislation directed at preserving indigenous heritage and promoting Native culture. Most important of these were the National Museum of the American Indian Act (1989), which established a museum dedicated to the histories and cultures of indigenous peoples on the National Mall, and the Native American Graves Protection and Repatriation Act (1990), which fostered the return of sacred objects, cultural patrimony, and human remains to Native nations, while laying out a new framework for relations between tribes and individuals and institutions that have historically studied, collected, and displayed their cultures.
Almost from the beginning of her time in Washington, D.C., Harjo has understood the team and its traditions to be problematic, referencing a particularly disturbing encounter with fans at a game in the early 1970s as what ultimately sparked her later activism against the team. In the intervening years, she has played a leading role in efforts to change the name, first through her leadership of NCAI and later as president of the Morning Star Institute. Then, in the courtroom, she first joined six other American Indians in 1992 to challenge the team and its trademarks in Harjo et al. v. Pro Football, Inc. and nearly a decade and a half later orchestrated Blackhorse et al. v. Pro Football, Inc. At the same time, her regular columns in Indian Country Today, moreover, have nurtured community and given hope, while encouraging scholars to ask questions about the history and significance of the moniker. Finally, she has the guiding force behind the symposium on “Racist Stereotypes and Cultural Appropriation in American Sports” held at the National Museum of the American Indian in February 2013. This gathering of activists, journalists, policymakers, and academics focused a spotlight on the team and sparked intense public interest. In fact, it is the catalyst of much of the recent push for change. All of these efforts make the description of her in Business Insider as the “Native American Grandmother who beat the Redskins” especially fitting (Walker).
Harjo has long had a deep affinity for art and culture. Dating back to her youth, she has written poetry. Later, she developed a love for theater, art, and museums. In addition to her impressive achievements in the realm of politics, she has also curated exhibits, staged conferences, written books, held a series of scholarly fellowships, and delivered countless lectures.
Her awards and accolades are many and much deserved. Perhaps most impressive, in 2014, Barak Obama awarded her the Presidential Medal of Freedom, the nation’s highest civilian honor, for her work on behalf of American Indians. And, in 2015, she was honored with the Native Leadership Award by the National Congress of American Indians.
DOCUMENT EXCERPTS
After a lengthy hearing, the USTTAB found the trademarks registered by the Washington professional football team disparaged American Indians and hence were void.
Decision rendered by the U.S. Trademark Trial and Appeal Board in Harjo et al. v. Pro Football, Inc. (July 1999)As to each of the registrations subject to the petition to cancel herein, the petition to cancel under Section 2(a) of the Act is granted on the grounds that the subject marks may disparage Native Americans and may bring them into contempt or disrepute. As to each of the registrations subject to the petition to cancel herein, the petition to cancel under Section 2(a) of the Act is denied on the ground that the subject marks consist of or comprise scandalous matter. The registrations will be canceled in due course (p. 145).
Source: Harjo v. Pro-Football Inc., U.S. Patent and Trademark Office, Trademark Trial and Appeal Board, 1999, 50 U.S.P.Q. (BNA) 1705.
Statement of the U.S. Commission on Civil Rights on the Use of Native American Images and Nicknames as Sports Symbols (2001)
Building on the TTAB ruling, the U.S. Commission on Civil Rights offered a broader condemnation of American Indian mascots, underscoring their harms.
The U.S. Commission on Civil Rights calls for an end to the use of Native American images and team names by non-Native schools. The Commission deeply respects the rights of all Americans to freedom of expression under the First Amendment and in no way would attempt to prescribe how people can express themselves. However, the Commission believes that the use of Native American images and nicknames in school is insensitive and should be avoided. In addition, some Native American and civil rights advocates maintain that these mascots may violate anti-discrimination laws. These references, whether mascots and their performances, logos, or names, are disrespectful and offensive to American Indians and others who are offended by such stereotyping. They are particularly inappropriate and insensitive in light of the long history of forced assimilation that American Indian people have endured in this country.
Since the civil rights movement of the 1960s many overtly derogatory symbols and images offensive to African-Americans have been eliminated. However, many secondary schools, post-secondary institutions, and a number of professional sports teams continue to use Native American nicknames and imagery. Since the 1970s, American Indian leaders and organizations have vigorously voiced their opposition to these mascots and team names because they mock and trivialize Native American religion and culture.
It is particularly disturbing that Native American references are still to be found in educational institutions, whether elementary, secondary or post-secondary. Schools are places where diverse groups of people come together to learn not only the “Three Rs,” but also how to interact respectfully with people from different cultures. The use of stereotypical images of Native Americans by educational institutions has the potential to create a racially hostile educational environment that may be intimidating to Indian students. American Indians have the lowest high school graduation rates in the nation and even lower college attendance and graduation rates. The perpetuation of harmful stereotypes may exacerbate these problems.
Source: Statement of the U.S. Commission on Civil Rights on the Use of Native American Images and Nicknames as Sports Symbols (2001). Online at http://www.usccr.gov/press/archives/2001/041601st.htm
After much study, the National Collegiate Athletic Association (NCAA) found that American Indian mascots were abusive and contributed to the creation of hostile environments. With this policy, it sought to ban their use from events it sponsored. Importantly, it would later amend the policy to allow exceptions for schools, like Florida State University, whose mascots had tribal support.
NCAA Executive Committee Issues Guidelines for Use of Native American Mascots at Championship Events (August 5, 2005)
… the NCAA Executive Committee have adopted a new policy to prohibit NCAA colleges and universities from displaying hostile and abusive racial/ethnic/national origin mascots, nicknames or imagery at any of the 88 NCAA championships.
“Colleges and universities may adopt any mascot that they wish, as that is an institutional matter,” said Walter Harrison, chair of the Executive Committee and president at the University of Hartford. “But as a national association, we believe that mascots, nicknames or images deemed hostile or abusive in terms of race, ethnicity or national origin should not be visible at the championship events that we control.”
The policy prohibiting colleges or universities with hostile or abusive mascots, nicknames or imagery from hosting any NCAA championship competitions takes effect February 1, 2006 … Other elements of the policy approved Thursday require that institutions with hostile or abusive references must take reasonable steps to cover up those references at any predetermined NCAA championship … Institutions displaying or promoting hostile or abusive references on their mascots, cheerleaders, dance teams and band uniforms or paraphernalia are prohibited from wearing the material at NCAA championships, effective August 1, 2008.
Last, and effective immediately, institutions with student-athletes wearing uniforms or having paraphernalia with hostile or abusive references must ensure that those uniforms or paraphernalia not be worn or displayed at NCAA championship competitions.
Harrison stressed that institutions affected by the new policy can seek further review of the matter through the NCAA governing structure.
Source: NCAA Executive Committee Issues Guidelines for Use of Native American Mascots at Championship Events (August 5, 2005). Used by permission of the National Collegiate Athletic Association.
U.S. Court of Appeals Ruling in Pro Football Inc. v. Harjo et al. (July 15, 2005)
On appeal, the original TTAB decision was overturned. This ruling offered a more limited reading of the legal doctrine informing the original decision. It also laid the groundwork for Blackhorse et al. v. Pro Football, Inc.
The Lanham Trademark Act provides protection to trademark owners. See generally 15 U.S.C. §§ 1051–1127, 1141-1141n. To take advantage of many of its provisions, trademark owners must register their marks with the Patent and Trademark Office. Not all marks, however, can be registered. Under 15 U.S.C. § 1052, the PTO must deny registration to certain types of marks, including those which, in subsection (a)’s language, “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
Another section, 15 U.S.C. § 1064(3), provides that if a mark is registered in violation of section 1052(a), “any person who believes that he is or will be damaged by the registration” may file a petition “[a]t any time” with the PTO to cancel the registration. This triggers a proceeding before the TTAB, see 15 U.S.C. § 1067, which takes evidence and determines whether to cancel the mark. Yet another provision, 15 U.S.C. § 1069, states that “[i]n all … proceedings equitable principles of laches, estoppel, and acquiescence, where applicable may be considered and applied.” (pp. 2–3)
…
Pursuant to 15 U.S.C. § 1071(b), Pro-Football filed suit in the U.S. District Court for the District of Columbia, seeking reinstatement of its registrations on the grounds that: (1) laches barred the Native Americans’ petition; (2) the TTAB’s finding of disparagement was unsupported by substantial evidence; and (3) section 1052(a) violates the First and Fifth Amendments to the U.S. Constitution both facially and as applied by the TTAB. (p. 4)
…
An equitable doctrine, “[l]aches is founded on the notion that equity aids the vigilant and not those who slumber on their rights.” NAACP v. NAACP Legal Def. & Educ. Fund, Inc., 753 F.2d 131, 137 (D.C. Cir. 1985). This defense, which Pro- Football has the burden of proving, see Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C. Cir. 1982), “requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121–22 (2002) (internal quotation marks omitted). In this case, the Native Americans contend both that the statute bars the defense of laches and that even were laches an available defense, Pro-Football has failed to prove it. (p. 5)
…
But even if registrations of some marks would remain perpetually at risk, it is unclear why this fact authorizes—let alone requires—abandonment of equity’s fundamental principle that laches attaches only to parties who have unjustifiably delayed in bringing suit. Pro-Football forgets that “laches is not, like limitation, a mere matter of time,” Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) (internal quotation marks omitted), but rather turns on whether the party seeking relief “delayed inexcusably or unreasonably in filing suit” in a way that was “prejudicial” to the other party, Rozen v. District of Columbia, 702 F.2d 1202, 1203 (D.C. Cir. 1983) (per curiam). Why should equity give more favorable treatment to parties that harm expanding numbers of people (in which case, under Pro- Football’s theory, laches runs from the date of harm) than it gives to parties that harm only a few people (in which case laches runs from whenever those people are free of legal disabilities)? Why should equity elevate Pro-Football’s perpetual security in the unlawful registration of a trademark over the interest of a Native American who challenged this registration without lack of diligence? Why should laches bar all Native Americans from challenging Pro-Football’s “Redskins” trademark registrations because some Native Americans may have slept on their rights? …
Source: Pro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005).
Further Reading
Belson, Ken. “Redskins’ Name Change Remains Activist’s Unfinished Business.” New York Times, October 9, 2013. Accessed October 10, 2013. http://www.nytimes.com/2013/10/10/sports/football/redskins-name-change-remains-her-unfinished-business.html
Handy, Bruce. “The Complex and Hidden Story Behind the Washington Redskins Trademark Decision.” Vanity Fair June 25, 2014. Accessed June 30, 2014. http://www.vanityfair.com/news/2014/06/story-behind-washington-redskins-name
Harjo, Suzan Shown. “Fighting Name Calling: Challenging ‘Redskins’ in Court.” In C. Richard King and Charles Freuhling Springwood, eds., Team spirits: Essays on the history and significance of Native American mascots (pp. 189–207). Lincoln: University of Nebraska Press, 2001.
King, C. Richard. Redskins: Insult and Brand. Lincoln: University of Nebraska Press, 2016.
King, C. Richard. 2014. “Looking Back to a Future End: Reflections on the Symposium on Racist Stereotypes in American Sport at the National Museum of the American Indian.” American Indian Quarterly 38: 135–142.
King, C. Richard, ed. The Native American Mascot Controversy: A Handbook. Lanham, MD: Scarecrow Press, 2011.
Nunberg, Geoffrey. “When Slang Becomes a Slur.” The Atlantic 23 June 23, 2014. Accessed June 30, 2014. http://www.theatlantic.com/entertainment/archive/2014/06/a-linguist-on-why-redskin-is-racist-patent-overturned/373198/
Stapleton, Bruce. Redskins: Racial Slur or Symbol of Success. Lincoln, NE: Writers Club Press, 2001.
Strong, Pauline Turner. “Trademarking Racism: Pseudo-Indian Symbols and the Business of Professional Sports.” Anthropology Now, Sept. 2014. Accessed September 15, 2014. http://anthronow.com/print/trademarking-racism-pseudo-indian-symbols-and-the-business-of-professional-sports
Waggoner, Linda M. “On Trial—The Washington R*dskins’ Wily Mascot: Coach William Lone Star Dietz.” Montana: The Magazine of Western History 2013, 63 (1): 24–47.
Walker, Hunter. “Meet The Native American Grandmother Who Just Beat The Washington Redskins.” Business Insider June 18, 2014. Accessed June 30, 2014. http://www.businessinsider.com/meet-the-native-american-grandmother-who-just-beat-the-redskins-2014-6#ixzz3U6J7G1lU
Tribal Law and Order Act, 2010
Anne Luna-Gordinier
Chronology
1790 |
Federal jurisdiction extends to non-Indians committing crimes against Indians in Indian territory. |
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1817 |
The General Crimes Act expands federal jurisdiction over Indians and non-Indians committing crimes in Indian country, with the exception of crimes by Indians against Indians. |
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1825 |
The Assimilative Crimes Act applies state criminal laws to tribal lands in situations where there is no federal crime that is applicable. |
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1881 |
The Supreme Court holds in United States v. McBratney that when a non-Indian commits a crime against another non-Indian on tribal land, the state where the reservation is located has criminal jurisdiction. |
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1885 |
The Major Crimes Act extends federal jurisdiction over a list of specific violent crimes. The Act authorizes federal punishment of major crimes by Indians against Indians and offenses committed by Indians against non-Indians. |
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1896 |
The Supreme Court holds in Talton v. Mayes that the sovereign powers exercised by tribes did not come from the Constitution, but existed prior to the formation of the United States. As a result, tribal members could not seek constitutional protections against the actions of their tribes. |
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1953 |
Public Law 280 gives criminal and civil jurisdiction over tribes within their borders to six states. This ended tribal criminal jurisdiction for most tribes within the enumerated states. Public Law 280 also allowed any state to take over tribal jurisdiction of Indian lands within their borders by amending the state constitution or passing state law. Ten more states chose to take Public Law 280 jurisdiction over Indian country. |
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Public Law 280 is amended so tribal consent is required before states could extend their jurisdiction. Predictably, no other tribe consented to relinquishing its jurisdiction. |
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The Indian Civil Rights Act imposes most of the requirements of the Bill of Rights on tribes for the exercise of jurisdiction, and limits sentences that may be imposed by tribal courts to a maximum of a $5,000 fine and one-year imprisonment for any crime. |
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1978 |
The Supreme Court holds in Oliphant v. Suquamish Indian Tribe that tribes lack criminal jurisdiction over non-Indians. |
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1990 |
The Supreme Court holds in Duro v. Reina that tribes do not have criminal jurisdiction over non-member Indians. |
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1991 |
Congress overturns Duro, affirming the inherent power of tribes to exercise power over all Indians. |
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1994 |
Senator Biden sponsors VAWA as part of the Violent Crime Control and Law Enforcement Act of 1994. On September 13, 1994, VAWA creates full faith and credit provisions requiring states and territories to enforce protection orders issued by other states, tribes, and territories. |
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1995 |
The Violence Against Women Grants Office (VAWGO) is created at the Department of Justice to implement grants programs for victims’ services and provides police and court sensitivity training. VAWGO makes the first VAWA grants to tribes under the STOP Violence Against Indian Women (STOP VAIW) Program. |
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2006 |
President George W. Bush signs VAWA 2005 into law on January 5, 2006. It authorizes numerous new programs, with an increased emphasis on violence against Indian women, sexual assault, and youth victims. The first OVW Tribal Consultation convenes with DOJ officials and tribal leaders in Prior Lake, Minnesota. |
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2007 |
OVW makes its first awards under the Grants to Indian Tribal Governments program, a more comprehensive tribal program than was authorized by VAWA 2005, which replaces the STOP VAIW program. |
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2008 |
The Section 904 Violence Against Women in Indian Country Task Force holds its first meeting in Washington, D.C. |
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2010 |
President Barak Obama signs the Tribal Law and Order Act (TLOA) to empower tribal governments to provide public safety and reduce violent crime in Indian country. TLOA established the Indian Law and Order Commission. |
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The Indian Law and Order Commission, an independent, all-volunteer advisory group, holds its first meeting. The purpose is to conduct a comprehensive study of law enforcement and criminal justice in tribal communities, and submit a report to the President and Congress with its findings, conclusions, and recommendations. |
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2012 |
Tribes begin implementing extended sentencing under TLOA. |
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2013 |
President Obama reauthorizes VAWA on March 17, 2013. Title IX, Safety for Indian Women includes Section 904 extending concurrent tribal criminal jurisdiction over violations of protection orders and domestic violence crimes involving non-Indians. |
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2014 |
Three tribes begin pilot projects to expand their jurisdiction and implement Section 904 provisions on February 6, 2014: Pasqua Yaqui, Tulalip, and the Confederated tribes of the Umatilla Indian Reservation. |
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2015 |
As of March 7, 2015, all federally recognized tribes may exercise special domestic violence criminal jurisdiction without permission from DOJ. |
Asserting Sovereignty with the Tribal Law and Order Act
Crime is a pervasive problem in Indian country. Alarming rates of child abuse, homicide, juvenile crime, and substance abuse plague tribal homelands (DOJ 1997). Indigenous Americans are 2.4 times as likely to experience violent crimes, and at least twice as likely to experience rape or sexual assault crimes than all other races (Greenfeld and Smith 1999, iii). To some extent, this problem is due to the undermining of tribal traditions by forcing hierarchical legal and social structures onto tribal societies. Federal Indian law and policy have created complicated criminal jurisdictional issues, making it difficult for tribes to maintain law and order on their lands. In addition, the scant allocation of resources for tribal criminal justice systems makes law enforcement especially burdensome. Regardless of the causal factors, comprehensive federal legislation to support tribal criminal justice systems was needed. Congress responded to this problem by enacting the Tribal Law and Order Act (TLOA) for Indian country on July 29, 2010. TLOA acknowledges that tribal justice systems are often the most appropriate institutions for maintaining law and order in Indian country. Its purpose is to empower tribal governments to effectively provide public safety and reduce the prevalence of violent crime in Indian country. The TLOA is a step in the right direction for tribes seeking to resolve criminal justice issues on their lands. Once tribes begin to creatively utilize TLOA, they may develop various tactics and culturally appropriate remedies to promote public safety on the reservation. The approaches that are most likely to be successful are those rooted in tribal traditions and values. This will promote law and order on the reservation as well as help to further tribal sovereignty.
Evolution of Federal Indian Policy and Criminal Jurisdiction
In order to understand criminal justice issues in Indian country, it is essential to recognize the complex legal issues surrounding tribal criminal jurisdiction. Tribes once exerted full sovereignty over their land, government, and people; however, their powers were eroded over time by court decisions and acts of congress. Federal Indian policy has historically impeded tribes’ ability to control their reservations in culturally compatible ways.
Criminal Jurisdiction
Congress has regularly responded to issues around criminal jurisdiction in Indian country by passing piecemeal legislation focused on specific issues. The nature of the law or policy is directed by the political climate at the time. Major laws affecting criminal jurisdiction include the General Crimes Act, the Assimilative Crimes Act, and the Major Crimes Act. Two subsequent acts that impact jurisdiction in Indian country are Public Law 280 (PL 280) and the Indian Civil Rights Act.
General Crimes Act
Congress passed the General Crimes Act in 1817, creating federal criminal jurisdiction over non-Indians for crimes they commit in Indian country (18 U.S.C.A. 1152). It also extends jurisdiction over Indians for select crimes against non-Indians. The act applies federal criminal law in its entirety to Indian country.
Assimilative Crimes Act
Congress enacted the Assimilative Crimes Act in 1825 (18 U.S.C.A. 13). The act applied state criminal law to crimes committed in Indian country when relevant federal criminal statutes were absent. The General Crimes Act failed to address which government has jurisdiction over crimes involving non-Indian victims and perpetrators on tribal land. The Supreme Court addressed the issue in 1881 in United States v. McBratney (104 U.S. 621 (1881)). The Court found that the state where the reservation is located has criminal jurisdiction when a non-Indian commits a crime against another non-Indian on tribal land.
Sidebar 1: Criminal Jurisdiction in Indian Country
Congress passed the General Crimes Act in 1817, creating federal criminal jurisdiction over non-Indians for crimes committed on tribal land. It also extends jurisdiction over Indians for select offenses against non-Indians. For jurisdictional purposes, Indian land is treated like a federal building, park, or military base. The act created three exceptions: It does not apply to crimes by Indians against other Indians, offenses by Indians that are punished by the tribe, or cases where a treaty gives the tribe exclusive jurisdiction over crime. The act applies federal criminal law to Indian country.
Congress realized that some acts are considered crimes by the state but are not prohibited by particular federal law. When these crimes were committed within federal enclaves, they would go unpunished. Essentially, state law had no force within federal enclaves including Indian Country. To resolve this issue, Congress enacted the Assimilative Crimes Act in 1825. The act applied state criminal law to crimes committed in federal enclaves that were not addressed by federal statutes. Given that Indian Country is considered a federal enclave under the General Crimes Act, it applies state criminal laws to tribal lands.
The General Crimes Act failed to address which sovereign had jurisdiction over crimes involving non-Indian defendants and victims on tribal land. The U.S. Supreme Court addressed the issue in 1881 in United States v. McBratney. It found that when a non-Indian commits a crime against another non-Indian on tribal land, the state where the reservation is located has criminal jurisdiction.
In 1885, Congress passed the Major Crimes Act to deal with Indian-on-Indian crimes that occur in Indian Country. The Act extended federal jurisdiction over seven crimes committed between Indians including: assault with intent to kill, arson, burglary, larceny, murder, manslaughter, and rape. Later amendments added another seven crimes: assault resulting in serious bodily injury, assault with a dangerous weapon, assault with intent to commit rape, felonious sexual molestation of a minor, incest, kidnapping, and robbery. The Act authorizes federal punishment of major crimes by both Indians against Indians, and offenses committed by Indians against non-Indians.
In 1885, Congress passed the Major Crimes Act to deal with Indian-on-Indian crimes that occur in Indian country (18 U.S.C.A. 1153). The act extended federal jurisdiction over a list of specific violent crimes by Indians against Indians and offenses committed by Indians against non-Indians (United States v. Henry, 432 F.2d 114 (9th Cir. 1970)).
Criminal jurisdiction over misdemeanors committed by non-Indians was not addressed until Oliphant v. Suquamish Indian Tribe (435 U.S. 191 (1978)). The U.S. Supreme Court found that due to the domestic, dependent status of tribes, they do not have jurisdiction over non-Indians unless granted expressly by Congress. Tribal members seeking justice would have to petition the U.S. Attorney, often located hundreds of miles away, to prosecute even minor offenses in federal court.
In Duro v. Reina, the Court stated that the retained sovereignty of the tribes is only that needed to control their internal relations, and to preserve their customs and social order (495 U.S. 676 (1990)). The Court attempted to unify the precedents by articulating a theory of consent to government. Voluntary tribal membership and the right of participation in tribal government justify tribal criminal jurisdiction over members. This ruling removed tribal jurisdiction over non-member Indians on the reservation.
The Duro decision created a jurisdictional gap in Indian country because states lacked criminal jurisdiction in Indian country, and the federal government usually only prosecuted crimes under the Major Crimes Act due to funding constraints. Congress responded in 1991 by amending the ICRA to (1) recognize and affirm the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians, and (2) explicitly expand the definition to include any person defined as an Indian under the Major Crimes Act to be within the criminal jurisdiction of tribal courts (25 U.S.C. 1301).
Jointly, these three acts extend exclusive federal jurisdiction over crimes committed in Indian country that involve non-Indian perpetrators against Indians, as well as Indian perpetrators of major crimes listed by the Major Crimes Act. States were given jurisdiction over crimes committed in Indian country within state borders that include non-Indian perpetrators and victims. Tribes maintain jurisdiction over misdemeanors committed by Indians in Indian country.
Public Law 280
Around 1950, federal Indian policy shifted toward the assimilation of Native Peoples. Several tribes were terminated as a result of this policy. Another tactic intended to promote assimilation was PL 280 (18 U.S.C.A. 1162). Essentially, in 1953 Congress gave criminal and civil jurisdiction to six states over Indian country within their borders. The original PL 280 states included Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. This law ended tribal criminal jurisdiction for most tribes within the enumerated states. PL 280 also allows any state to take over tribal jurisdiction of Indian lands within their borders by amending the state constitution or passing state law. Ten additional states chose to take PL 280 jurisdiction over Indian country. As a result of great pressure from tribes, in 1968 an amendment to PL 280 was passed that required tribal consent before states could extend their jurisdiction (25 U.S.C. 1323). Predictably, no other tribe consented to relinquishing its jurisdiction. By that time, the assimilationist ideal had faded. Although there was a marked turn in policy toward self-determination for tribes, these policies had already wreaked havoc on American Indian life.
Indian Civil Rights Act
In Talton v. Mayes, the Supreme Court specifically held that the sovereign powers exercised by tribes did not come from the Constitution (163 U.S. 196 (1896)). As a result, tribal members could not seek constitutional protections against the actions of their tribes. As Congress was concerned that certain classes of citizens were not protected by the Constitution, it passed the ICRA of 1968 (25 U.S.C.A. 1301 et seq.).
With a few exceptions, the ICRA imposed the Bill of Rights on tribes. Under the ICRA, tribes do not have to provide legal counsel for indigent defendants, nor do they have to provide grand jury indictments in criminal cases. In addition, the act restricts tribal criminal jurisdiction over Indians to misdemeanors. The maximum penalties a tribal court may impose for misdemeanors are limited to $5,000 in fines and one year in jail per crime (25 U.S.C.A. 1301).
Given all of these restrictions on jurisdiction, tribes have found themselves unable to adequately maintain law and order on their lands. The confusion over who would exercise jurisdiction, lack of funding, and remote locations of Indian country all work to undermine public safety. In order for tribes to resolve these problems, they have had to seek new avenues for resolution. In order to succeed, tribes must balance the goals of tribal sovereignty with state and federal needs for accountability. Only with time, education, regained political power, and respect for traditional cultures can tribes re-envision themselves successfully.
Tribal Law and Order Act of 2010
In response to these jurisdictional gaps and the devastating crime rate in Indian country, Congress passed the Tribal Law and Order Act of 2010 (TLOA) (25 U.S.C. 2501). The congressional intent of TLOA is to guarantee tribal criminal justice, expand federal responsibility over Indian country, improve law enforcement on Indian lands, and enhance tribal sentencing authority. TLOA also established the Indian Law and Order Commission (ILOC), composed of nine volunteer members responsible for conducting a comprehensive study of criminal justice and law enforcement in Indian country. The ILOC is responsible for submitting a report to the president and Congress with its findings, conclusions, and recommendations regarding issues such as improving services and programs to prevent juvenile crime, rehabilitating Indian youth in custody, as well as adjustments to the penal authority of tribal courts, alternatives to incarceration, and simplifying jurisdiction in Indian country.
Sidebar 2: Major Provisions of the Tribal Law and Order Act
Cooperation and Coordination
Historically, federal prosecutors have regularly declined to prosecute criminal cases in Indian country. For example, between 2005 and 2009, federal prosecutors declined to prosecute 40 percent of nonviolent cases and 52 percent of violent cases in Indian country (GAO 2010, 3). To make matters worse, tribes often do not receive notification of the declinations. This is problematic because while tribes wait to hear back, evidence may be lost or damaged, or federal witnesses may become unavailable. Even when a tribal court is able to hear a case, sentencing restrictions limit the penalties for serious crimes. Certainly something needed to be done in order to promote public safety in Indian country.
President Barack Obama, surrounded by members of his administration and Native American leaders, signs the Tribal Law and Order Act during a ceremony at the White House in Washington, DC, 2010.The act was passed to improve federally created jurisdictional issues on reservations that inhibited tribal law enforcement and courts in responding to various crimes, including domestic violence. (Saul Loeb/AFP/Getty Images)
Section 212 of TLOA amends the ICRA and requires federal actors conducting investigations on tribal land to coordinate with tribal agencies in cases of declinations or non-referrals of criminal investigations (25 U.S.C. 2801 (2010), 25 U.S.C. 1301 (1968)). This coordination also encompasses the use of relevant evidence in tribal court as well as status updates on investigations. In addition, the U.S. Attorney’s Office and the FBI are required to report to Congress about declinations of prosecution. The expectation is that the annual reporting requirement will decrease the rate of cases that go unresolved in Indian country. In addition, the U.S. Bureau of Prisons must now notify tribal law enforcement whenever a prisoner convicted of drug trafficking, a sex offense, or a violent crime is released into Indian country.
The TLOA also requires U.S. Attorney’s Offices with jurisdiction in Indian country to appoint special assistant U.S. attorneys to work as tribal liaisons in order to promote the prosecution and coordination of cases. TLOA also authorizes the use of tribal prosecutors for this purpose. The goal is for increased coordination of cases and for tribal prosecutors to receive additional support and training. It is anticipated that these special prosecutors will increase the number of federal prosecutions in Indian country, resulting in enhanced public safety.
Tribal Policing, Training, and Cross-deputization
The piecemeal history of federal Indian law makes criminal jurisdiction in Indian country extremely convoluted. Law enforcement officers must unravel these tangled issues while working in dangerous situations. Their authority differs, depending upon particular circumstances. In addition, an inadequate number of law enforcement officers (3,000) work in all of Indian country (Reaves 2011, 1). These officers patrol vast areas, for example, 11 of the 25 largest law enforcement agencies serve jurisdictions covering over 1,000 square miles (Ibid.). The TLOA attempts to resolve these issues with a number of approaches.
The TLOA encourages the recruitment and retention of tribal law enforcement officers. For example, TLOA raises the hiring age for tribal officers from 37 to 47 years of age (25 U.S.C. 2501). This may encourage retired military or emergency-response personnel to become tribal officers. Given the high rate of recidivism from police forces, this also encourages committed and skilled officers to keep working in Indian country.
The TLOA provides funding and creates training protocols for tribal police. It also requires tribal police to have access to federal criminal intelligence databases, including the FBI’s National Crime Information Center (NCIC). Access to such information improves the likelihood of the resolution of crimes in Indian country. This additional support may also help retain devoted tribal police officers.
TLOA emphasizes the need to end violence against Indian women. It authorizes new guidelines for tribal authorities addressing sexual assault and domestic violence crimes. It also requires the Indian Health Service (IHS) to standardize sexual assault policies and protocols for handling evidence and interviewing witnesses of domestic and sexual violence crimes in Indian country.
TLOA also requires training for all tribal judicial and law enforcement employees, and BIA personnel, about alcohol and substance abuse prevention for youth and adults. Training is also mandatory for narcotics investigations and prosecutions. Existing or newly created training programs will be provided by the administrator of the DEA, director of the FBI, secretary of the Interior, and the U.S. attorney general. Tribes would also benefit from incorporating cultural considerations into their codes, protocols, prevention, and training programs, to ensure that they are integrated into law enforcement. This, in turn, would enhance tribal sovereignty.
Another important approach, especially in PL 280 states, is cross-deputization. TLOA provides incentives through technical assistance and grants for tribal and state law enforcement agencies to enter into joint law enforcement agreements to combat crime in and near tribal lands. Importantly, TLOA expands the authority of tribal police to enforce federal laws, whatever the perpetrator’s race. This makes it easier for tribes to exercise criminal jurisdiction, thus providing more protection from crime in Indian country. Through regular and enhanced training, streamlined sharing of information, and clarification of jurisdiction, TLOA should lead to more effective law enforcement in Indian country.
Enhancing Tribal Sovereignty
With the passage of TLOA, tribal courts may now prosecute felonies that federal authorities often considered not serious enough to pursue. TLOA amended the ICRA to allow prosecution of felony cases with sentencing of up to three years of imprisonment per crime and can be stacked up to nine years per case. Fines are limited to $15,000 per case (25 U.S.C. 2801 (2010), 25 U.S.C. 1301 (1968). For tribal judiciaries to be eligible, they must provide presiding judges who are licensed lawyers with sufficient legal training. In addition, defendants must be provided with a defense attorney who is licensed by the state bar. Tribes are also required to be courts of record. Although this poses an additional burden on tribes, they may benefit from sharing information as they codify culturally appropriate rules and codes.
Relatedly, TLOA allows for federal prosecution of crimes not prosecuted by PL 280 states. Tribes may ask the U.S. attorney general to approve concurrent jurisdiction among the federal government, the state, and the tribe. As the state’s jurisdiction remains unchanged, PL 280 states no longer have to approve a change of status as previously required. This supports tribal sovereignty because it restores tribal jurisdiction over all misdemeanors and crimes perpetrated by Indians against Indians or non-Indians on tribal lands.
Tribes face serious obstacles for funding and developing critical infrastructure and programs. In an effort to address this, the TLOA reauthorizes funding to support and improve tribal justice systems. Given that tribal incarceration capacity is usually only short-term, a pilot program allows Indians sentenced for felonies in tribal court to be jailed in a federal facility at government expense. Alternatively, perpetrators may be imprisoned in tribal rehabilitation facilities, state facilities under contract with the tribe, or tribal facilities approved for long-term confinement by the Bureau of Indian Affairs (BIA). Tribally specific rehabilitation programs rooted in tribal traditions and values may be particularly helpful in promoting public safety and tribal sovereignty.
Looking Forward
Jurisdictional complications are still a major hurdle for tribes. There remains a confusing tangle of tribal, federal, and state jurisdictional issues that depend upon the location of the offense, the identity of the perpetrator, the identity of the victim, and the crime. TLOA does not resolve all of these issues, but it does attempt to improve criminal justice in Indian country.
As of 2016, ten of eligible tribes were exercising TLOA’s new sentencing authority, and 15 were close to implementation (NCAI 2016). Ninety-six percent of tribes reported challenges due to funding limitations (GAO 2012, 3). Relatedly, two-thirds of the tribes who applied for funding in 2011 were ineligible because they did not have non-profit 501(c)(3) status (GAO 2012, 4). It is also unclear how TLOA will affect criminal prosecution of non-Indians in Indian country. On the bright side, declinations for federal prosecution went down to 34% by 2013 (DOJ 2013, 7). Although the act offers an opportunity to improve the justice systems in Indian country, implementation will require improved communication and significant coordination among federal agencies and all components of tribal justice systems.
One of the best ways for tribes to exercise sovereignty is to work within the framework of approved forms of jurisdiction while not limiting themselves to those areas. This enables tribes to demonstrate their competence in numerous areas of policy and legal development while also enhancing tribal sovereignty. Tribes must develop formal criminal justice protocol to appropriately and effectively respond to crime. They would benefit from creating legal codes that integrate local, cultural, and multidisciplinary responses to crime before they attempt to adopt and implement them.
Once tribes set about creatively utilizing TLOA, they may develop a multitude of tactics to address crime in Indian country. They must seek multiple funding sources, since they generally lack sufficient financial resources for enforcement. Coalition-building and information-sharing are also necessary. By developing and implementing their own culturally compatible legal codes to address crime, tribal governments will not only be able to protect their citizens, empower victims of violence, and hold perpetrators accountable, they will also further their sovereignty.
Sarah Deer (1972–)
Sarah Deer (Muskogee Creek) is an indigenous feminist legal scholar and advocate. Born in 1972, Deer is originally from Wichita, Kansas. Deer wanted to be an activist from an early age. She credits her grandfather, Isaac “Kelso” Deer, who was a teacher and served in the Kansas Legislature in the 1950s, for helping her make connections to her heritage and awareness of racial injustice. Her father, Montie Deer, taught high school, went to law school, and then served as a state court judge in Kansas and as a Muscogee Nation Supreme Court judge. Her mother, Jan, was also a teacher. The dedication of her family members was central to her decision to become a professor of law and an advocate for victims’ rights.
Deer advocated for abortion rights during high school and went on to receive her B.A. in Women’s Studies and Philosophy from the University of Kansas in 1995. While attending KU, she was heavily involved in abortion rights events and volunteered helping victims of sexual assault. She went on to earn her J.D. in 1999 with a Tribal Lawyer Certificate from the University of Kansas School of Law. She began to focus on American Indian women after she took her first tribal law class at KU.
After graduating from law school, Deer was a grant program specialist at the U.S. Department of Justice Office on Violence Against Women from 1999 to 2002. In 2000, Deer married Neal Axton, a fellow lawyer who is now the research librarian at William Mitchell College of Law. She was a victim-advocacy legal specialist and staff attorney at the Tribal Law and Policy Institute in Saint Paul, Minnesota from 2002 to 2008. She has been an online instructor of tribal legal studies for the UCLA Extension, and a lecturer of law, for the UCLA Law School.
Deer became a visiting professor of law at William Mitchell College of Law in Saint Paul Minnesota in 2008 and was hired as an assistant professor of law in 2009. In 2009, Deer and Colette Routel were tasked with restarting William Mitchell’s Indian Law program. She currently teaches Constitutional Criminal Procedure, Constitutional Law, Professional Responsibility, Introduction to Tribal Law, and Criminal Law: Statutory Interpretation. She also teaches the Indian Law Clinic, and the Tribal Code Drafting Clinic.
Deer was one of the lead authors for Amnesty International’s “Maze of Injustice” report wherein she reframed the problem of sexual violence in Indian Country as an international human rights issue. In addition, she brought Native American leaders, health specialists, and women’s advocates together around the intersection between violence against women and tribal governance, thereby launching widespread efforts to reform federal policies that interfere with the ability of tribes to prosecute offenders. She was also a lead author of the U.S. Department of Justice’s report entitled “Sexual Assault in Public Law 280 States.”
Deer’s work has been instrumental in the passage of the Tribal Law and Order Act of 2010, which increases the sentencing power of tribal courts and requires federal district attorneys to provide detailed information to tribal authorities about cases under their jurisdiction that will not be prosecuted. Her work also contributed to the 2013 reauthorization of the Violence Against Women Act, which restores some of the authority that was stripped from tribal governments by Oliphant v. Suquamish (1978). VAVA 2013 gives tribal courts the power to prosecute non–Native Americans who assault Native spouses or dating partners or violate a protection order on tribal lands. Deer believes that tribal courts remain the best place for Indian women to find justice. With her current focus on building tribal infrastructure and reinvigorating the rich history of Native Americans’ pre-colonial criminal justice systems as a source for contemporary laws and policies, Deer is profoundly reshaping the landscape of support and protection for Native American women.
Deer is a Board Member of the ABA Commission on Domestic Violence and the National Alliance to End Sexual Violence. In 2012, she became the Chair of the Federal Advisory Committee for the National Coordination Committee on the American Indian/Alaska Native Sexual Assault Nurse Examiner-Sexual Assault Response Team (AI/AN SANE-SART) Initiative. I/AN SANE-SART was established with support from the U.S. attorney general to inform the U.S. Office for Victims of Crime and its federal, tribal, and nongovernment partners of the existing resources, challenges, and gaps related to sexual violence response.
Deer has testified before Congress, and in 2013 she became an Associate Justice of the Prairie Island Court of Appeals. She became an Appellate Judge for the White Earth Nation in 2015.
In 2014, the MacArthur Foundation named Deer a MacArthur Fellow. The “genius grants” recognize exceptionally creative people with a record of achievement and potential for significant future contributions. The grant will certainly help Deer continue her work on policies to help American Indian women who have been failed by tribal courts and federal laws.
She has co-authored four textbooks on tribal law, and written several academic articles on Native American women. In 2015, her first book, entitled The Beginning and End of Rape: Confronting Sexual Violence in Native America, was published. Deer’s commitment to ending violence against Native American women and supporting tribal judicial systems promises to bring about a better future for all of Indian country.
Theresa M. Pouley (1960–)
The Honorable Theresa M. Pouley (Colville Confederated tribes) is an esteemed tribal judge and a national leader on tribal justice issues. Born in 1960, she is one of three daughters of Victor J. Desautel and Sheryl Rose Bean. Her father, Victor, worked off of the Colville Indian Reservation, so although her family lived outside the reservation, they regularly returned on weekends to stay with her grandparents in Inchelium.
Judge Pouley received her B.A. from Gonzaga University in 1984. It was there that she met her husband, Mark W. Pouley, who has been the Chief Judge of the Swinomish Tribal Court since 2004. She went on to earn her J.D. from Wayne State University Law School in 1987 and was admitted to the state bars of Michigan and Washington. She has been an attorney for over 20 years and in her practice has played a variety of roles, including private practice in Michigan and Washington until her appointment to the bench in 1999.
Judge Pouley was the Chief Judge of the Lummi Nation in Washington from 1999 to 2005. She was a member of the board of directors of the National Tribal Court Judges Association from 2003 to 2004 and became the president of the Northwest Tribal Court Judges Association in 2005. She was selected by the Washington State Supreme Court to sit on the “Historical Court of Justice,” which reviewed and exonerated Chief Leschi in 2004. Judge Pouley was awarded the National Tribal Child Support Association’s Award for Outstanding Judge in 2005.
Judge Pouley is currently the Chief Judge of the Tulalip Tribal Court and an Associate Justice of the Colville Court of Appeals. As a Judge of the Northwest Intertribal Court System, she serves as a trial judge and appellate court justice for several other Northwest tribes. Under her guidance, the Tulalip Tribal Court was awarded the Honoring Nations Award from American Indian Economic Development Project of Harvard University’s Kennedy School of Government in 2006 for its focus on its therapeutic and indigenous approaches to criminal law.
In 2001, Tulalip retroceded its criminal jurisdiction from the state of Washington. The tribal court went from a once-per-month court system to 1,100 cases almost overnight. In 2005, the tribal council passed a resolution for a wellness court at the urging of the Tulalip Chief Justice. Since then, the wellness court has met once per week about their clients to address their needs with an integrative approach, including chemical dependency treatment providers, mental health providers, domestic violence counselors, and perpetrator treatment providers, as well as GED, job training, Northwest Indian College, and casino employment representatives. The innovative approach helped reduce the number of repeat offenders at Tulalip by 25 percent each year during the first two years. The third year, it went down an additional 12 percent. Additionally, 80 percent of the criminal case-load at Tulalip automatically requires current drug and alcohol evaluation. Tulalip’s Alternative Sentencing Program incorporates the best values of Native culture into a modern and traditional court system.
In 2009, Judge Pouley worked with the Department of Justice as a facilitator for the “Tribal Nations Listening Session,” and in 2010 she facilitated a “Focus Group on Human Trafficking of American Indian and Alaska Native Women and Children” developed by the Office for Victims of Crime. She has also worked and lectured with the Washington State Administrative Office of the Courts on domestic violence and Indian law issues for the last several years.
Judge Pouley was a presenter to the United States Supreme Court Justices O’Connor and Breyer on “Indigenous Justice Paradigms.” She also provided testimony to the United States Senate Committee on Indian Affairs on “Challenges in Law Enforcement in Indian Country” in 2000, the “Oversight Hearings on Tribal Courts” in 2007, and “Tribal Law and Order Act,” one year later in 2011.
President Barack Obama appointed Judge Pouley to the Indian Law & Order Commission (ILOC) in 2011. The Tribal Law and Order Act created the ILOC, an independent, all-volunteer advisory group, to help address challenges to securing equal justice for Indians on tribal lands. The ILOC presented “A Roadmap for Making Native America Safer: Report to the President and Congress of the United States” in November 2013. The report represents one of the most comprehensive assessments ever undertaken of criminal justice systems serving Native American and Alaska Native communities.
Judge Pouley also spoke to the U.S. Attorney’s Office about justice in Indian Country in 2014. The Tulalip tribes are one of three tribal entities in the country that were authorized by the United States Attorney General to set up a pilot program to prosecute domestic violence cases involving non-Native defendants in tribal court under Section 904 of the Violence Against Women Act (VAWA) of 2013. Judge Pouley noted that during the first nine months, five cases were brought as part of the pilot project, with three convictions, one dismissal, and one case scheduled for trial after the New Year.
Judge Pouley frequently lectures at local, state, and national conferences on tribal court and Indian law issues and makes regular presentations at the University of Washington’s Indian Law Symposium. She teaches Indian law in the Paralegal Program at Edmonds Community College in Washington State and previously taught at Northwest Indian College. Chief Justice Pouley is blazing the trail for other tribes seeking to exercise criminal jurisdiction on their lands and thus further their sovereignty.
DOCUMENT EXCERPTS
Responding to Violence Against Indian Women, Sarah Deer (2011)
In 2011, Professor Sarah Deer testified before the U.S. Senate Committee on Indian Affairs, regarding historical causes of violence against Indian women, as well as jurisdictional complications that need to be addressed.
As other hearings have documented, it has been challenging for the legal system to respond to Native survivors of sexual violence because of jurisdictional complexities. The federal government has created a complex interrelation between federal, state and tribal jurisdictions that undermines tribal authority and often allows perpetrators to evade justice. Tribal and federal agencies responsible for providing the services necessary to ensure that survivors receive adequate care and that perpetrators are held accountable for their crimes are chronically underfunded and without the appropriate resources to uphold agency duties. Tribal governments are hampered by a complex set of laws and regulations created by the federal government that make it difficult, if not impossible, to respond to sexual assault in an effective manner.
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Many of the current issues that American Indian and Alaska Native Peoples face in the United States, particularly Native women, can be traced back to the legacy of abuse and systematic assault on Native culture, land and people as a part of European/U.S. colonization of the Americas. Gender based violence against Native women was used by settlers as an integral part of conquest and colonization. The United States federal government has historically made a series of attempts to compel American Indian and Alaska Native Peoples to assimilate into the dominant Euro-American society. In the late 19th and early 20th centuries, a number of policies designed to promote assimilation contributed to the breaking up of tribal societies, damaging communal solidarity and traditional social networks.
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While recent steps have been made to begin to address some of the issues that American Indian and Alaska Native populations face in the United States, it will take more than one piece of legislation to comprehensively address the impact of this significant historical legacy of discrimination and abuse. Native women need and deserve continued attention and resources from the federal level.
The United States federal government has a legal responsibility to ensure protection of the rights and wellbeing of American Indian and Alaska Native Peoples, including a responsibility to provide social, educational and medical services. The legacy of abuse, disempowerment and erosion of tribal government authority, and the chronic under-resourcing of law enforcement agencies and services which should protect indigenous women from sexual violence, must be reversed.
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From prevention to response, the quality and availability of public safety, justice, and health care services for Native women in the U.S. are disproportionately and chronically underfunded and prioritized. The historical discrimination and ongoing economic, social, and cultural abuse of Native Peoples in the U.S. results in shocking levels of violence, including trafficking and sexual exploitation. It must be addressed immediately.
.… The Tribal Law and Order Act will begin to address the long-standing public safety and justice service disparities in Indian Country by beginning to restore to tribal governments the authority and resources to protect their citizens, particularly women and girls.
Yet, despite the strides made by Congress and the Administration to restore tribal authority, true tribal empowerment and sovereignty will not be possible without addressing the Supreme Court’s 1978 ruling on Oliphant vs. Suquamish, which effectively strips tribal authorities of the power to prosecute crimes committed by non-Indian perpetrators on tribal land, and denies due process and equal protection of the law to survivors of sexual violence. We therefore urge Congress to re-recognize the concurrent jurisdiction of tribal authorities over all crimes committed on tribal lands, regardless of the Native identity of the accused, legislatively overriding the U.S. Supreme Court’s decision on Oliphant vs. Suquamish.
Source: Deer, Sarah. “Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters.” Testimony before the U.S. Senate Committee on Indian Affairs Oversight Hearing. Washington, D.C.: July 14, 2011.
Enhanced Sentencing Authority, Theresa M. Pouley (2011)
In 2011, the Honorable Theresa M. Pouley, Justice of the Tulalip Tribal Court spoke before the U.S. Senate Committee on Indian Affairs regarding the financial and political impacts of the Tribal Law and Order Act.
Since the Act passed I have had the opportunity to meet with many tribal leaders and federal and state government officials interested in the development of tribal justice systems. Congress should be encouraged that tribes are patiently and methodically taking measured and reasoned steps toward exercising the additional sentencing authority granted by the TLOA. It is important that we not misinterpret the tribes’ lack of immediate implementation of this authority as a sign that the problems are not as bad as stated or that tribes do not care to exercise this authority. We must understand that the TLOA, while offering only an incremental step to improving tribal justice, presents tribes with a substantial change in the way they operate their courts. This change presents risks and costs that the tribes are measuring carefully before simply jumping forward.
The wisdom of the “opt in” provisions of the TLOA is evident as some tribes may judge the changes in TLOA coming at too high a cost to their sovereignty and independence. It is perceived that some of the requirements in TLOA, presumably adopted to protect defendants’ due process, will push tribal courts to be more like federal courts, and this is not typically a welcomed push. At Tulalip we have had to carefully study ways to implement the provisions of TLOA while still retaining our tribal identity and balancing extended punishment philosophies with the holistic programs and methods that have been successful over the years. This has not been easy and it has required careful planning and cooperation of all the key players in our justice system.
When tribes take a realistic look at the provisions of TLOA, it is clear that exercising enhanced sentencing authority will require additional financial obligations. While the Act offers tribes a method to exercise enhanced sentencing authority, it came with no new sources of funding and failed to address the substantial economic challenges tribes are already facing in providing fundamental public services to their communities such as police and courts. Tribes that wish to build their own justice system are generally left to fund that system with only tribal resources. Like the federal and state systems, tribal resources are limited, and tribes must make balanced decisions on where and how they will invest those resources. The Committee should be encouraged by the time invested by tribes to ensure that the decisions they make are right today and right for the future of the tribe.
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The Tribal Law and Order Act still leaves the tribes reliant upon federal prosecution of many crimes, and the U.S. Attorney will still decline to prosecute some major offenses. In situations where the U. S. Attorney’s Office chooses not to prosecute, expanded authority gives tribal courts the capacity to more appropriately sentence violent offenders. As I acknowledged in 2008 although crimes requiring long-term jail sentences are not a common occurrence at Tulalip, in those situations where the court is faced with prosecuting serious violent crimes, it is important for the tribal court to have appropriate sentencing authority. At Tulalip, our focus is on alternatives to incarceration aimed at promoting positive personal changes, healing and preventing recidivism. There are, however, times when the tribal court is faced with violent offenders in which longer incarceration periods are necessary and vitally important. Because we are mindful that expanded sentencing authority comes with increased infrastructure demands and incarceration expenses we are carefully reviewing and amending our tribal code to apply the expanded authority to only the most serious of offenses.
The expense of incarceration may be the highest hurdle for tribal courts to clear before expanded sentencing will be imposed. The GAO Report on Indian Country Criminal Justice, published in February 2011, confirmed that detention space and the cost of detention are major issues for all surveyed tribes. Unless the incarceration costs are assumed or reimbursed by the federal government, few tribes will be able to bear that expense. Regionally, non-tribal governments spend over 70% of their general fund resources on law and justice expenses, and jails are the largest line item in that budget. Few tribes will be willing or able to divert those types of resources from funding sources desperately needed for housing, education, and healthcare. While the federal Bureau of Prisons pilot project to house tribal inmates is notable, it is unlikely to offer a viable long-term solution for all tribes to address this significant expense.
Source: Pouley, Theresa M. “The Tribal Law and Order Act One Year Later: Have We Improved Public Safety and Justice throughout Indian Country?” Testimony before the U.S. Senate Committee on Indian Affairs. Washington, D.C.: September 22, 2011.
See also: Violence Against Women Act, Title IX: Safety for Indian Women, 2013
Further Reading
Deer, Sarah. The Beginning and End of Rape: Confronting Sexual Violence in Native America. Minneapolis: University of Minnesota Press, 2015.
Deer, Sarah. “Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters.” Testimony before the U.S. Senate Committee on Indian Affairs Oversight Hearing. Washington, D.C.: July 14, 2011. Accessed July 1, 2016. http://www.indian.senate.gov/sites/default/files/upload/files/Sarah-Deer-testimony.pdf
Government Accounting Office. “U.S. Department of Justice Declinations of Indian Country Criminal Matters,” GAO-11-167R, December 2010. Accessed July 1, 2016. http://www.gao.gov/new.items/d11167r.pdf
Government Accounting Office. “Tribal Law and Order Act: None of the Surveyed tribes Reported Exercising the New Sentencing Authority, and the Department of Justice Could Clarify Tribal Eligibility for Certain Grant Funds.” GAO-12-658R: May 2012. Accessed July 1, 2016. http://www.gao.gov/assets/600/591213.pdf
Greenfeld, Lawrence and Steven Smith. “American Indians and Crime.” Bureau of Justice Statistics, U.S. Department of Justice, February 1999. Accessed July 1, 2016. http://www.bjs.gov/content/pub/pdf/aic.pdf
Indian Law and Order Commission. “A Roadmap for Making Native America Safer: Report to the President and Congress of the United States,” November 2013. Accessed July 1, 2016. http://www.aisc.ucla.edu/iloc/report/files/A_Roadmap_For_Making_Native_America_Safer-Full.pdf
National Congress of American Indians. “Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing.” April 2016. Accessed July 1, 2016. http://tloa.ncai.org/documentlibrary/2016/06/Implementing%20Tribes%206.8.16.pdf
Pouley, Theresa M. “The Tribal Law and Order Act One Year Later: Have We Improved Public Safety and Justice throughout Indian Country?” Testimony before the U.S. Senate Committee on Indian Affairs. Washington, D.C.: September 22, 2011. Accessed June 12, 2015. http://www.indian.senate.gov/sites/default/files/upload/files/Theresa-Pouley-testimony.pdf
Reaves, Brian. “Tribal Law Enforcement, 2008.” Bureau of Justice Statistics, U.S. Department of Justice, June 2011. Accessed July 1, 2016. http://www.bjs.gov/content/pub/pdf/tle08.pdf
U.S. Department of Justice. “Indian Country Investigations and Prosecutions 2013.” Department of Justice Report to Congress. Washington, D.C.: May 2013. Accessed July 1, 2016. http://www.justice.gov/sites/default/files/tribal/legacy/2014/08/26/icip-rpt-cy2013.pdf
Assimilative Crimes Act, 18 U.S.C.A. 13 (1825).
Duro v. Reina, 495 U.S. 676 (1990).
Federal Enclaves Act, 18 U.S.C.A. 1152 (1817).
Indian Civil Rights Act, 25 U.S.C. 1301 (1968).
Indian Self-Determination and Education Assistance Act, 25 U.S.C.A. 450a-n (1975).
Major Crimes Act, 18 U.S.C.A. 1153 (1885).
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
Public Law 280, 18 U.S.C.A. 1162 (1953).
Talton v. Mayes, 163 U.S. 196 (1896).
Tribal Law and Order Act 25 USC 2801 (2010).
United States v. Henry, 432 F.2d 114 (9th Cir. 1970).
United States v. Mazurie, 419 U.S. 544 (1975).
United States v. McBratney, 104 U.S. 621 (1881).