Vine Deloria Jr.
Vine Deloria Jr. (1933–2005) did not intend to be central to the political history of Native America during the 1960s. When selected to serve as the executive director of the ailing National Congress of American Indians (NCAI) in 1964, he had recently earned degrees at Iowa State University and the Lutheran School of Theology in Illinois and was recruiting students to attend elite preparatory schools for the United Scholarship Service. Nonetheless, Deloria immersed himself in politics and law, revived the NCAI, and devised effective strategies to advocate for Native rights during his three-year tenure. He also mastered the art of drawing parallels and analogies to convey ideas about Indians that would otherwise have been lost on non-Indians he needed as allies. In this testimony given before a Senate committee on constitutional rights, Deloria put his skills on display. The committee had completed a survey of the “serious constitutional problems confronting” Native people and now proposed several pieces of legislation “to provide our Indian citizens with the rights and protections conferred upon all other American citizens.” Consider how Deloria defended tribal governments and courts, critiqued Public Law 280, and rejected the citizenship of sameness.36
Mr. Deloria. The National Congress of American Indians endorses S. 963, S. 965, S. 967, and S. 968 as basically good bills which will provide for a more adequate protection of the constitutional rights of American Indians. S. 961, as presently written, does not spell out exactly what rights and responsibilities guaranteed by the U.S. Constitution would be applicable to either tribal governments or individual Indian citizens in relation to their tribal governments. Since many tribes have written a basic bill of rights into their tribal constitutions based upon the provisions of the U.S. Constitution, we feel that this bill, in most cases, is not needed. Until definite rights and responsibilities can be defined, we believe that this bill should not be considered further.
We believe that S. 962 should not be considered as many tribes have or soon will have provisions for appellate procedures based upon their own needs and customs. We would like to comment specifically upon the provisions for a model code as contained in S. 964. A uniform model code would not, in all cases, promote justice as many tribal laws are built upon tribal customs, and all tribal customs are not the same. We would suggest that S. 964 be amended to provide only for the training of judges and to appropriate such sums as necessary to carry out a training course in legal procedures for Indian judges. It is more important for judges to receive continuing training in judicial procedures for the administration of tribal courts than for a uniform code to be introduced for the tribes.
We wholeheartedly endorse S. 966 [which called for the repeal of Public Law 280 and would allow the exercise of state civil and criminal jurisdiction in Indian Country only with tribal consent] and suggest the following amendment: “The extent of such jurisdictions, either civil or criminal, shall be as agreed upon from time to time by the State and the tribe concerned, and may be extended or retracted by agreement of both the State and the particular tribe as experience proves practicable and planning may indicate to them advisable.” This amendment would allow for greater flexibility and common understanding of the problems involved in all areas in the relations between tribes and State governments.
We are aware that this country is presently groping for new forms of social understanding and participation. Governor Collins has called this the formation of the American soul.37 We feel that the passage of S. 966 would be a most significant step in the formation of a greater society. . . . Tribal customs can best handle most of the problems that occur on the reservations and within the tribe. Passage of S. 966, with the amendment proposed, would allow tribes to continue to provide for their own people until there is sufficient understanding by all parties concerned to provide for Indian people under another legal and social system. . . .
Much has been made of the so-called transitional nature of tribal government. We feel that tribal groups are indeed in transition, but to a new form of social understanding which, if understood by other people, would help solve some of the pressing social problems of today. We suggest that tribes are not vestiges of the past, but laboratories of the future. As we see the larger society beginning to adopt Indian social forms, we feel impelled to suggest that tribes be allowed maximum flexibility in developing their own economic, political, and human resources so that they might bring the best of the Indian understanding of life to the rest of this country. We urge passage of S. 966 with amendment as a good constructive beginning and as the application of the first principle of government—the consent of the governed.
Mr. Creech.38 Mr. Deloria, the representatives of the Department of the Interior have defined the system of law and order now existing among the various Indian tribes as being transitional. Do you visualize the Indian court system as being transitional?
Mr. Deloria. I think you have to look back at the way policies have been made for the Indian. It was always assumed that if you had the best social, economic, and political knowledge and applied this to the Indian, he would soon assimilate. And so, basically, it was to turn Indians into ordinary American citizens without regard to the fact that Indians have always been here and have always conducted their societies according to certain social forms. Now, in the 1887 Allotment Act you have the idea that if you give each Indian 160 acres, that he is going to be a farmer and pretty soon there will be no Indian problem. Again in the 1950s, with the idea of termination you have the idea if you make the American Indian a businessman that pretty soon he will assimilate, and there will be no more Indian problem. But in the time intervening the American society has been coming closer to Indian forms.
For instance, you have the rise of the conservation movement just about the time of the Allotment Act in which America begins to appreciate, in the same sense the Indian does, the beauty of the land and the respect you need for it. Now I think since World War II this society has been coming around to a society that is socially concerned about itself and about its citizens. If you look at the way your average Indian tribe operates, with your kinship system, and with Indian social patterns, you find that this is the type of society Indians have.
In reference to S. 961, it has been continually noted throughout these hearings should we spell out certain things, and quite often they are things spelled out in the Constitution. I believe that Indians not only do not understand this but it would be detrimental to spell some of these things out, because, for the most part, you have these rights naturally as your customs. In other words, no one prevents you from free speech. No one prevents you from assembly, because Indian society is simply that way. . . . [W]here you originally have the rights inherent in the Indian customs and in Indian society, I do not think it is necessary to spell these out. So, Indians are transitional in these ways. . . .
S. 966 which will correct the idea that somebody else should be planning for these Indians, you see. Not only will we have consent of the governed if we get S. 966 passed, but we can have the opportunity then to be released from this psychological fear on the reservation of having the whole culture run over. Now, when you do not understand a State law, this becomes something that is basically outside. What you really have is submission, you see, because you do not understand your rights, you do not understand your responsibilities, and so you have these people caught in this tremendous psychological trap. As long as the law stands with no consent, you have a basically paralyzing fear that you will be thrown under a system which you do not understand, and this is not justice at all. . . .
Mr. Baker.39 As near as I can determine from your remarks, the position you are taking is that there should be an upgrading on the reservations to develop their—for lack of a better word—legal sophistication so that their internal system will operate more effectively, is that a reasonable paraphrase?
Mr. Deloria. That is correct.
Mr. Baker. I would assume that the thrust of that then would be the maintenance of a perpetual separateness. In other words, the integrity of the tribe would be maintained and there would be a parallel system adopting the best of our system and maintaining the best of the existing system. Is that also an accurate paraphrase?
Mr. Deloria. I think there can be adaptations all the way along. What I would like to refer to in terms of assimilation is what we find in the Old Testament. The Hebrews were down in Egypt for 400 years. I am sure there was continual pressure on these people to assimilate. But the fact that they held their culture and they continued their religious traditions, in effect they continued to be one people, is the reason we have the great religions stemming out of these people. Now, I would draw this analogy to American Indian tribes basically. That we can contribute in a great many ways, provided we are allowed to remain Indians. And so I do not see it as an either/or proposition, you see?
Mr. Baker. I think there have to be certain profound philosophical problems involved there, since each one of us in this room has come from a somewhat diverse background, and the common good has dictated that we, rather than remain separate, have worked to minimize our differences to provide the best for the greatest number. The economic status of the Indian now on the reservation would indicate that some progress has to be made to assist him, and our system contemplates that this progress normally is made through the law. . . .
Mr. Deloria. This is true, but I do not see ever any reason for assuming the disappearance of Indian tribes, according to some type of sociological doctrine.
Mr. Baker. You think the maintaining of this little island of culture, with what small dissemination it will have through the culture that surrounds it, will have a better effect both for the Indian and the surrounding culture than a gradual assimilation into one melting pot society.
Mr. Deloria. Right, and there is a current sociological study out called “Beyond the Melting Pot,” in which it examines ethnic groups in New York City, and it points out that these groups, over three generations, have adapted but have not really assimilated. So there are a great many things each of us can contribute.40 The thing that the Indian has always feared is that an economic and a political system that he did not understand would be thrust upon him.
Mr. Baker. I would assume that each immigrant who came to this country had the same fears. He is coming from one culture into a completely foreign culture, by and large, unless he was Anglo-Saxon.
Mr. Deloria. That is right, sir, but they came over as individuals, and we were here as independent nations, and treaties were made with us, and we each have traditions. And, in fact, there is a great deal of talk about Indian unity, but, in fact, the tribes have independent relations to each other. This organization I run is kind of a miniature United Nations with everybody taking his shoe off and hammering on the desk. There are different traditions there. The migrations from Europe come individually fleeing from some things and seeking opportunities in others, while the tribes for the most part are, or have been, independent nations owning their own lands, having their own traditions, religions, et cetera. So you cannot really compare the two. In fact, you cannot take the Indian out of his tribal tradition and compare him to an individual immigrant coming over, you see. But I would point out that as they come over now they are trying to set up new Swedens and new Englands and these things. . . .
Mr. Baker. The problem that I see is that you are saying that there is this pathological fear that a foreign or unknown system is going to be imposed upon them, and all you are doing is perpetrating this system by maintaining a complete separateness rather than a gradual dissolution of the differences.
Mr. Deloria. There is a gradual dissolution of the differences. However, when things occur like the jurisdiction in South Dakota where this is a sudden and sharp chopping off, this is not justice. It is not reasonable. It is not even rational. Now my county, my reservation that I come from is over 100 miles long, and there are no provisions to put any law enforcement in. . . . And so all we basically ask is justice, the consent of the governed, time to develop what we think should be developed in our own way. You cannot get a contribution to this society from Indians if you try to turn the Indian into a white man or into anything else, you see.
But we are making a great many contributions, I would feel, and we can continue to. But where Public Law 280 presently stands, there can be unilateral action. It will be unilateral action basically against tribes, and I think this would cause pathological fear in anybody. . . . Suppose a State wanted to take jurisdiction over a tribe. I would think the proper way to go about this is for the people on the reservation would petition their tribal council to hold a referendum, and on the basis of that referendum, then the tribe would apply to the State for jurisdiction in a certain matter. Otherwise this Public Law 280 can be used as a very deadly weapon if it wants to be. . . . So putting a consent clause in here and allowing great flexibility, I think, would provide for a great deal of understanding. I think this is the basis as I was saying earlier, that laws become customs and customs become law, and only in this sense do you have justice.