Helen Peterson and Alice Jemison
Following close on the heels of House Concurrent Resolution 108, Public Law 280, and legislation targeting specific tribes, members of Congress introduced Senate Joint Resolution 4, a proposal to amend the Constitution’s “commerce clause” (Article 1, Section 8) by removing the words “and Indian tribes.” Its advocates argued that doing so would “restore the same rights to Indian tribes which are enjoyed by all other citizens of the United States.” Critics argued that it meant to repeal the legal foundation for all of the services provided to Indian Country. In the following document, National Congress of American Indians executive director Helen Peterson (1915–2000), an Oglala Lakota, and Seneca activist Mary Jemison (1901–64) offered opposing views on termination and the joint resolution. Consider which position would be best characterized as nationalist and which one most threatened to obfuscate the distinction between civil and treaty rights. What meanings do they assign to citizenship, belonging, wardship, trust, and incorporation?9
Mrs. Peterson: My statement is on behalf of the National Congress of American Indians. . . . I am instructed by the President and Vice President of our organization and by a number of Tribes to oppose Senate Joint Resolution 4. . . . We understand this resolution, if passed, would take from the Federal Government the authority to regulate commerce with Indian Tribes in the United States. We further understand this constitutional authority is the only express basis for most of the Federal legislation to provide protections to Indians and their trust property, and that if passed, this resolution would render invalid substantially everything in the Code of Federal Regulations having specific reference to Indians and most of the statutes relating to Indian tribes.
With regard to this resolution, and some other legislation, Indians have repeatedly expressed bitter resentment at the trickery and unfairness of employing such words and phrases as “restoring the same rights to the Indian tribes which are enjoyed by all citizens of the United States” which purport to give Indians something that they do not already have. The use of such words and phrases is misleading to many Indians who lack education and to unsuspecting good citizens who want justice for American Indians. We want to make it unmistakably clear that we know Indians have been citizens since 1924 and already have the rights of citizens. This resolution “gives” Indians nothing; on the contrary, it would take from Indians protections they are properly entitled to and want to keep. . . . .
Mrs. Jemison: I am Mrs. Alice L. Jemison. I live at Mumford Park, Herndon, Virginia. I am the editor and publisher of “The First American.” To qualify myself, I would say that I am an enrolled member of the Seneca Nation of Indians of New York State; that I have been engaged in national Indian affairs since 1933.
I wish to thank the committee for this opportunity to appear here in support of Senate Joint Resolution No. 4. In my estimation this is the only method by which Congress can ever fully free the Indians from the status in which they are now held. While there has been testimony here relative to the authority of Congress and where it stems, perhaps it is well to go back to the origin of this matter and look at what has been done. When the Constitution of the United States was adopted, the infant country was not dealing with a subject people in dealing with the Indians; they were dealing with tribes which were well-organized, had their own forms of government and held vast sections of territory for themselves.
In writing the Constitution, Article 1, Section 8, gave to the Congress the right to govern trade and intercourse between the states, foreign nations, and Indian tribes. However, Article 3, Section 2, which confers judicial jurisdiction upon the courts over these matters, neglected or did not include the words “and Indian tribes.” It can probably be assumed that those who framed the Constitution did not think that the Congress of the United States would ever presume to legislate for these Indian tribes because they were foreign nations and were to be dealt with as foreign nations. That probably explains why the words “and Indian tribes” were omitted from Article 3, Section 2.
As a result of that, the Supreme Court of the United States has consistently held that Congress has paramount and plenary authority over tribal Indians and their property, which can neither be denied nor controlled by the judicial branch of the Government. . . . As long as the Indians remain in a tribal status, irrespective of the fact that they were made citizens under the Act of 1924, they are still subject wards of the Congress of the United States, and the Congress can take whatever action it sees fit. The good intentions of one Congress can be utterly destroyed by whatever action is taken by a subsequent Congress. It had been the policy of the United States Government, the Congress, to make citizens of the Indians. That was the determining policy in setting up the Bureau of Indian Affairs in 1824 under the War Department. The money was appropriated for the purpose of “civilizing and Christianizing” the Indians and fitting them to take their place as citizens of the United States. . . . As we all know, such is not the case. The money has been spent, but the Indians are poor. A great many of them are poor. The Indians are ignorant. The Indians are uneducated.
This will continue as long as the Congress continues the Indian Bureau, which has such arbitrary powers over the Indians of the United States. It is fundamentally wrong. I ask you, supposing the framers of the Constitution had said that whenever any immigrants come to this country we will put them on a reservation and have a special department of Government for each nationality that comes here. How many of the men who sit in Congress today would be sitting here if such a thing had been done? The immigrants came here and had freedom to develop as individuals under the American system of government. They had to work hard. They could not speak English. I know. I have worked with them. But they worked and they took advantage of America’s idea of equal opportunity. They made good. I say that my people could have done the same had they been free.
This Congress has taken one of the greatest steps forward that has ever been taken in Indian affairs due to the adoption of House Joint Resolution 108. That is a very good measure and a forward-looking step. It provides for termination of Federal authority over certain Indian tribes. The legislation, however, that is proposed, provides these Indians may, if they choose, remain in a tribal status. The Congress of the United States will not be ridding itself of any responsibility for these Indians as long as they or their property remains in a tribal status.
So while the measures that have been proposed are good measures and I favor them, they are still not good enough to free the Indians. They will never be good enough to free the Indians until legislation such as Senate Joint Resolution 4 has been adopted. That is the only method by which Congress can free itself of the responsibility for the Indian.
The argument is made that if this resolution is adopted that all the legislation that has been passed will go by the board; that Congress will no longer have authority over Indian affairs. Well, Congress adopts special legislation for veterans. They adopt special legislation for farmers, or we would not have all these parity prices. I see no reason why they cannot adopt special legislation for Indians if those Indians need something, and I agree that many of them do. I see no reason why the Congress of the United States cannot continue to legislate for the benefit of the Indians of the United States with this exception: In those cases where legislation violates any constitutional rights which the Indians may have, the Supreme Court can then pass upon the constitutionality of that legislation which it cannot do at the present time and which is the reason that the Indians are in the condition that they are today.