Native Americans (Great American Court Cases)
Contemporary federal court decisions, statutes, and presidential statements often provide strong support for tribal self-government. According to U.S. judicial doctrine, for example, tribal legal regimes survive as manifestations of indigenous sovereign powers, rather than as creations of federal law. In keeping with this notion, the Bill of Rights of the Constitution does not apply to actions of tribal governments because the first ten amendments to the Constitution bind only the federal government and its agencies, not independent sovereigns such as Indian nations. Furthermore, a criminal defendant can be convicted for the same crime in federal and tribal court without being placed in double jeopardy, because the protection against double jeopardy in the U.S. Constitution does not apply to situations where a person is convicted for the same crime by two separate sovereigns.
If Native American tribes are not federal agencies, however, neither are they mere voluntary associations, like private clubs, whose powers are limited to admitting and excluding members. Instead, they are governing bodies with the power to direct and coerce individuals engaged in activities within their territory, more like cities and states. The U.S. Supreme Court has affirmed, for example, that tribes may impose taxes on activities by Native Americans and non-Native Americans...
(The entire section is 5946 words.)
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Native Americans (Genocide and Crimes Against Humanity)
The international community has not legally admonished the United States for genocidal acts against Native Americans, yet it is clear that examples of genocidal acts and crimes against humanity are a well-cited page in U.S. history. Notorious incidents, such as the Trail of Tears, the Sand Creek Massacre, and the massacre of the Yuki of northern California are covered in depth in separate entries in this encyclopedia. More controversial, however, is whether the colonies and the United States participated in genocidal acts as an overall policy toward Native Americans. The Native-American population decrease since the arrival of Spanish explorer Christopher Columbus alone signals the toll colonization and U.S. settlement took on the native population. Scholars estimate that approximately 10 million pre-Columbian Native Americans resided in the present-day United States. That number has since fallen to approximately 2.4 million. While this population decrease cannot be attributed solely to the actions of the U.S. government, they certainly played a key role. In addition to population decrease, Native Americans have also experienced significant cultural and proprietary losses as a result of U.S. governmental actions. The total effect has posed a serious threat to the sustainability of the Native-American people and culture.
Two conflicting yet equally harmful ideologies significantly influenced U.S. dealings with Native Americans. The first sprang from the Enlightenment and, more specifically, John Locke's Second Treatise of Government. Locke proposed that the individual had an exclusive claim to one's person. The fruits of one's labor, as an extension of the individual, then, become the laborer's property. Thus, individuals acquire property rights by removing things from the state of nature through the investment of their labor. This particular theory of property helped justify the many harmful policies against Native Americans throughout United States history. European settlers falsely saw the Americas as a vast and empty wasteland that the Native Americans had failed to cultivate and, therefore, had no worthy claim to. Euro-Americans saw themselves as the torchbearers of civilization and therefore thought they were uniquely situated to acquire the vast wilderness and develop it (this later developed into the idea of Manifest Destiny). To the Euro-American mind, that the Native Americans must yield to European settlement was inevitable. This line of reasoning went so far as to result in a common nineteenth-century belief that the extinction of Native Americans was also inevitable.
The second ideological motivation behind U.S. treatment of Native Americans was the policy of assimilation. Its origins are manifested in president Thomas Jefferson's idea of the yeoman farmer. Jefferson envisioned a land populated by industrious and autonomous yeoman farmers. Native Americans stood in the way of this vision by their communal occupation of vast quantities of land. The best solution, then, would be for Native Americans to assimilate to Euro-American ways. Thus, the Native Americans would require less land and the remainder would be available to white settlers. Under this ideological view of Native Americans' role in the new world, there was no place for Native-American culture as it existed before colonization. It was a useless stump in fertile land that had to be extracted. Assimilation of Native Americans and the intentional destruction of Native-American culture remained overt policies into modern times and were often tied to many religious groups' interactions with Native Americans.
Colonies and States
One of the lesser known facts in U.S. history is that the Virginia and Carolina colonies were heavily engaged in the slave trade of Native Americans. In the Carolinas, the proprietors of the colonies favored cultivating Native-American ties for the lucrative fur trade. Settlers, some from Barbados where slavery was already established, however, raided Native-American tribes and exploited long-standing native rivalries in order to capture and sell Native Americans on the slave market. Historian Thomas R. Berger notes that a South Carolinian, James Moore, abducted and enslaved 325 Native Americans in the Florida region in 1704 and also launched a lucrative attack against the North Carolinian Tuscarora tribe in 1713, killing 200 and capturing 392. The end result of such campaigns was to displace many of the eastern seaboard tribes. The majority of Native Americans in this region were enslaved domestically, sold abroad, or forced to flee into the interior. Such displacement necessarily also destroyed these tribes' cultural unity. These acts of intentional enslavement and displacement would qualify as genocidal acts under the United Nations (UN) definition of genocide. While slavery is not specifically mentioned in the UN Genocide Convention's definition of genocide, it fits the spirit of the convention. These acts deliberately caused bodily and mental harm and imposed conditions on the eastern tribes that made life near the colonized settlements precarious to the point of becoming impossible.
Relations between the northeastern tribes and colonists were also precarious and often hinged on perceived threat, land conflicts, and trade relations. The Puritans of New England recognized native land title only if the land was being cultivated and had a persistent practice of enslaving Native Americans. What harmony existed was often disturbed by conflicts over new settlements and further encroachment on native land. The Pequot War of 1637 illustrates this tension. The Pequot had faired the influx of Western disease better than other tribes and had the strength to resist settlements rather than acquiesce to them. When settlers moved into the Connecticut Valley, the Pequot did just that. In response, a group of settlers launched an attack against the Pequot stronghold at night, surrounding and setting fire to it. The result was the killing of more than five hundre Pequot and the enslavement of the survivors. The desire to eliminate a threat also motivated a similar policy of extermination in Virginia following the Indian massacres of 1622 and 1644.The western states did not fair much better with their relations with Native Americans. The Sand Creek Massacre in Colorado (1864) and the massacre of the
Much of the federal government's dealings with Native Americans were fueled by states' and individuals' desire for land. After the French and Indian War (1754763), the English strongly opposed encroachment on native lands for fear that it would provoke native retaliation and the destruction of beneficial military and trade alliances. King George's Proclamation of 1763 forbade settlement beyond the eastern mountain ranges and granted the Crown the exclusive right to purchase Native-American land. This law frustrated many colonists and land speculators, including Virginia statesman George Washington, who wished to purchase native lands. Under the Proclamation, native lands could be acquired from the Crown, but at a much higher price. The restriction on settlement of certain portions of land also greatly hindered the expansion that many colonists saw as desirable and inevitable. The Crown's interference with settlers' desire for cheap, arable land contributed to many colonists' support and justification for the Revolutionary War. This property system, whereby Native Americans had occupancy rights but because the Europeans "discovered" the continent the Crown had exclusive purchasing rights, was later absorbed into U.S. federal law in the seminal case
The War of 1812 marked a turning point from the policy of Native-American assimilation and partial retention of native land to the policy of outright removal of native tribes to the West of the Mississippi. The forced removal or tribes also resulted in a total relinquishment of traditional native land. After many largely unsuccessful attempts to convince the five relatively prosperous and assimilated tribes of the Southeast (Cherokee, Choctaw, Chickasaw, Seminole, and Creek) to voluntarily move westward, the federal government acquiesced to state pressure and passed the Indian Removal Act of 1830. It offered a trade of land in the East for land in the West. The particularly coercive aspect of the act was that those who refused the exchange would no longer be protected under federal law and would be subject to hostile state regulation. The removal policies of the federal government resulted in the humanitarian disaster referred to by the Cherokee as the Trail of Tears.
Approximately four thousand Cherokee perished on this forced walk to western lands. Removal, however, was a larger policy than this one famed act. It occurred both before and after 1830 and represented the belief that American Indians were not capable of existing with nor desired to coexist with white settlers. There were conflicting motivations behind the policy. For some, it was a thinly veiled method of evicting Native Americans from land that was desired by white settlers. For others, it was based on the belief that Native Americans were members of an inferior civilization that could not survive in the civilized world and therefore needed to be removed for their own sake. Either way, some scholars reference the federal removal policy as a genocidal act due to the death and proprietary loss incurred to Native Americans as well as the destruction of their traditional way of life.
A second and particularly destructive policy was that of assimilation. Behind assimilation policies lies the desire to remove all that is "Indian" from the Native Americans. A particularly poignant historical example of how this policy was also tied to the continued desire for more land is the General Allotment Act of 1887 (the Dawes Act). This act terminated communal land holdings on the reservations and redistributed land to individual Native Americans by a trust system. After twenty-five years, they would own the land individually and become U.S. citizens. Any "surplus" land would be taken for sale to settlers. It was an attempt to assimilate Native-American traditions of communal land holdings to the Euro-American system of private ownership. Thereby, it was thought, Native Americans would join mainstream society and, at the same time, require less land. This act had disastrous effects on traditional Native-American life and reduced their land holdings by two-thirds.
Yet another assimilation policy was the forced removal of Native-American children from their parental homes to boarding schools for "civilized" education. The Northwest Ordinance of 1787 established an involuntary boarding-school system where children were typically forbidden to speak their native language and were stripped of all outward native characteristics. The Carlisle Indian Industrial School was one of these schools and incorporated an "outing system" whereby children were placed with white families in order to learn American customs and values. While having the good intention to provide education to Native-American children, this system of indoctrination was also aimed at "killing the Indian and saving the man" (Glauner, 2002, p. 10) as Richard Pratt of the Carlisle School said. In the twenty-first century, this policy would be considered both a potential violation of the UN Genocide Convention's prohibition on transferring children from one group to another, and a blatant intention to cleanse the Indian population of their native language and cultural values through the re-education of their children.
A clearer example of a federal genocidal act against Native Americans was the involuntary sterilization of approximately seventy thousand Native-American women. The federally funded Indian Health Services carried out these sterilizations between 1930 and the mid-1970s. They were often done without informed consent, covertly, or under a fraudulent diagnosis of medical necessity. This directly contravenes the UN Genocide Convention. Destroying a group's ability to reproduce is an obvious and crude method of ensuring the inability of the group's survival.
Whether government actions such as the Trail of Tears and assimilation policies qualify as genocidal acts or as crimes against humanity continues to be a subject of much disagreement and debate. The UN Genocide Convention requires that a state actor have "intent to destroy" a group to satisfy the definition of genocide. As previously outlined, many of the actions taken by the federal, state, and colonial governments fell short of actual intent to destroy the Native Americans. Scholars Frank Chalk and Kurt Jonassohn maintain that the closest cases are the massacres at Sand Creek and of the Yuki of Round Valley (a modern example would be the sterilization programs). In both instances, government officials played key roles in facilitating the purposeful killing of Native Americans. The circumstances under which the United States committed genocide against Native Americans tended to be when other methods failed to clear a path to settlement, or other notions of progress. "Ethnocide was the principal United States policy toward American Indians in the nineteenth century . . . the federal government stood ready to engage in genocide as a means of coercing tribes when they resisted ethnocide or resorted to armed resistance" (Chalk and Jonassohn, 1990, p. 203).
The U.S. government was more often guilty of acts of "advertent omission" (that is, without intent to commit genocide, failing to act to prevent private acts that have genocidal effects or failing to perform obligations that prevent genocidal effects). There is a debate as to whether such acts should be incorporated into the definition of genocide, although they currently are not a part of the UN definition. Continually turning a blind eye to aggressive settlers' illegal consumption of native land and to other private acts of intimidation are examples. On the plains, the U.S. government did not prevent the destruction of tribes' primary food source and government officials often spoke in approval of it. From 1883 to 1910, the buffalo, upon which tribes in that area were dependent, were killed in such great quantities that the number fell from 60 million to 10 buffalo. Without their traditional food source and with the pressure exerted by settlers mounting, the plains Indians experienced famine or were forced to relocate to reservations. Further, the United States often failed to uphold treaty obligations to provide protection, food, and blankets to Native Americans. The failure of the U.S. government to protect Native Americans and, in some cases, to follow through on its own obligations, left Native Americans with few options and contributed to their destruction.
The third possibility is to categorize U.S. actions as crimes against humanity under Section 7 of the Rome Statute of the International Criminal Court. Murder, extermination, and deportation or forcible transfer of population fall under this statute when done "as part of a widespread or systematic attack directed against any civilian population. . . ." Because many of the acts of removal were coercive, they could qualify as crimes against humanity.
The aforementioned allegations of genocidal acts against American Indians occurred before the United States ratified the UN Genocide Convention in 1948 (as of 2004, the United States has not ratified the Rome Statutes). Most treaties in international law are not retroactive. Legal reprisal under the UN Genocide Convention, then, is not likely. An argument may be made, however, that the involuntary sterilization of Native-American women occurred after the United States signed the UN Genocide Convention (although before ratification) and that the United States violated its obligation not to act against the object and purpose of the treaty.
Perhaps more important than formal legal sanctions, however, is the recognition of the colonies', the United States', and individuals' role in the devastation of Native-American population and culture. As the description of state policies and actions attest, the destruction of Native-American communities and culture was neither by chance nor mandated by fate. It was directly connected to government policies and actions.
SEE ALSO Cheyenne; Forcible Transfer; Indigenous Peoples; Pequots; Racism; Sand Creek Massacre; Trail of Tears; Wounded Knee; Yuki of Northern California
Axtell, James (1981). The European and the Indian: Essays in the Ethnohistory of Colonial North America. New York: Oxford University Press.
Berger, Thomas R. (1999). A Long and Terrible Shadow: White Values, Native Rights in the Americas since 1492. Seattle: University of Washington Press.
Berkhofer, Robert F., Jr. (1965). Salvation and the Savage: An Analysis of Protestant Missions and American Indian Response, 1787862. Lexington: University of Kentucky Press.
Chalk, Frank, and Kurt Jonassohn (1990). The History and Sociology of Genocide: Analyses and Case Studies. New Haven, Conn.: Yale University Press.
Churchill, Ward (1997). A Little Matter of Genocide: Holocaust and Denial in the Americas, 1492 to the Present. San Francisco: City Lights Books.
Dippie, Brian W. (1982). The Vanishing American: White Attitudes and U.S. Indian Policy. Middletown, Conn.: Wesleyan University Press.
Glauner, Lindsay (2002). "Comment: The Need for Accountability and Reparation: 1830976 The United States Government's Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans." DePaul Law Review 51:911.
Hagan, William T. (1979). American Indians. Chicago: University of Chicago Press.
Horsman, Reginald (1970). The Origins of Indian Removal 1815824. East Lansing: Michigan State University Press.
Lynden, Fremont J., and Lyman H. Legters, eds. (1992). Native Americans and Public Policy. Pittsburgh: University of Pittsburgh Press.
Sheehan, Bernard W. (1973). Seeds of Extinction: Jeffersonian Philanthropy and the American Indian. New York: W.W. Norton.
Wilkins, David E. (2002). American Indian Politics and the American Political System. New York: Rowman & Littlefield.
Williams, Robert A. Jr. (1990). The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press.
Stacie E. Martin
Native Americans (Supreme Court Drama)
The term Native American is commonly used to refer to American Indians living within the United States, though it also includes Hawaiians and some Alaskan natives not considered American Indians. When referred to in general, American Indians often prefer to be called by their tribal names, such as Nez Perce, Navajo, Sioux, or Oneida.
The place of Native Americans in the U.S. legal system is highly unique. Tribes are formally recognized sovereign (politically independent) nations located within the boundaries of the United States. By the 1990s over 2 percent of lands within the United States were actually governed by Native American tribal governments. Such lands under tribal jurisdiction are referred to as Indian Country.
Tracing the history of U.S.-Indian relations from the nation's early years reveals that present-day Native American legal standing in the United States is not the result of a well-organized body of legal principles, but rather an accumulation of policies coming from many sources over time. Although many similarities do exist, each tribe has its own unique cultural and legal history. For over two hundred years, U.S. Indian policy shifted between periods of supporting tribal self-government and economic self-sufficiency apart from U.S. society to periods of forced Indian social and economic assimilation (inclusion) into the dominant society.
The Growth of Indian Law
The basis for what is known as Indian law, which is actually U.S. law about Indians and not by Indians, was established well before the birth of the United States. During the seventeenth century British and Spanish colonies began negotiating treaties with the New World's native peoples, treating them as politically independent groups. The treaties recognized Indian ownership of lands they were living on and using. The United States, after independence from Great Britain, inherited this age-old European international policy. As a result, tribal sovereignty, recognized well before the birth of the United States, became the basis for future U.S.-Indian relations.
Fresh from victory over Britain in the American Revolution (1775783), the fledgling new government made establishment of peaceful and orderly relations with American Indians one of its first items of business. The 1787 Northwest Ordinance, enacted by the Continental Congress, recognized existing Indian possession of the newly gained lands from Britain that were not part of the original colonies. Attempting to end the practice of private individuals or local governments negotiating treaties with or buying lands directly from the sovereign Indian nations, the Ordinance stated that only the federal government could legally carry out such activities.
Recognition of tribal sovereignty was directly addressed in the U.S. Constitution, adopted in 1788. Authority for the federal government's legal relationship with tribes was placed in the Commerce Clause of Article 1 which reads simply that Congress has power "to regulate Commerce with foreign Nations and . . . the Indian Tribes." The Constitution also recognizes the legal status of Indian treaties in Article VI by stating, "This Constitution, and the Laws of the United States . . . and all Treaties made . . . shall be the supreme Law of the Land." This means congressionally ratified (approved) treaties have the same legal force as regular federal laws. Further reflecting the importance of Indian relations to the new nation, one of the first acts passed by the first U.S. Congress was the Indian Trade and Intercourse Act of 1790. Exercising its new constitutional authority, Congress proclaimed treaty-making policy and brought all interactions between Indians and non-Indians under federal control.
U.S. Indian policy became further defined by three landmark Supreme Court decisions between 1823 and 1832. Known as the Marshall Trilogy after then-Chief Justice John Marshall, the cases of Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) affirmed the tribal right to occupy and govern their lands, tribal sovereignty from state jurisdiction within Indian reservations, and defined a moral trust responsibility of the United States toward the tribes. Marshall described tribes as "domestic dependent nations" essentially free of state controls. The trust relationship toward Indian nations meant the United States is responsible for Indian health and welfare.
Later Court decisions further defined Indian policy. A reserved rights doctrine was established in United States v. Winans (1905) meaning that Indians retain certain inherent (native) rights until explicitly taken away by Congress. But, the Court in Lone Wolf v. Hitchcock (1903) also gave Congress "plenary" (absolute) power over Indian peoples. Plenary power meant Congress could on its own change U.S. Indian policy, even change treaties and end specific rights without consent of the tribes. However, the trust responsibility requires careful exercise of this absolute power, using it only when considered beneficial to Indian peoples. To resolve legal disputes over treaty interpretations, the "canons of construction" recognized in Winters v. United States (1908) state that unclear treaty language should always be interpreted by the courts from the tribal perspective.
U.S. governmental policy concerning Indians proceeded from the Marshall Trilogy to the year 2000 along a zig-zag pathway of alternating goals. Policy swerved from isolation and protection on reservations, to forced integration (assimilation) into American farming society, to recognition of reorganized tribal governments and relations with the federal government, to termination of trust status, and finally to support for tribal self-determination and integrity.
Treaties, Removal, and Reservations
Despite the seemingly protective U.S. Indian policies developed through the first few decades of the nation's history, in reality Indian peoples suffered catastrophic loss of economies, lands, and life during the persistent westward push of white settlements. One of the more tragic examples of U.S. government actions was the 1830's removal policy directed by President Andrew Jackson (1829837). Under this policy, the United States forcefully removed the Five Civilized Tribes from the Southeastern United States to a newly created Indian Territory in what later became Oklahoma. Thousands of deaths directly resulted.
U.S. removal policies continued through the 1850s and 1860s as more treaties were made with tribes in the West. The western treaties created a vast reservation system in which the inherent rights of Native Americans would presumably persist within certain defined territories, called reservations. Some treaties also reserved Indian hunting, fishing, and gathering rights outside reservation boundaries to help maintain traditional economies. Although not written in the treaties, water rights were also implicitly included as later interpreted by the Court in Winters. Honoring these treaties conflicted with the promotion of non-Indian settlement and economic development in newly gained U.S. territories.
As opposed to rights of tribal governments, the legal rights of Indian individuals was a major concern of neither the federal government nor the courts throughout much of the nineteenth century. With tribal relations largely guided by the treaties rather than standard U.S. law, legal dealings with Indian individuals were generally avoided. As a result, a system for policing and punishment of Indians developed largely beyond the reach of U.S. courts. Indian agents having ready access to the military, exercised broad authority, often detaining and executing numerous individuals for a wide range of alleged actions.
The End of Treaty-Making
In 1871, Congress ended treaty-making, closing a major chapter in U.S.-Indian relations. By this time, the Indian population had largely been isolated by the U.S. government into remote areas, out of the way of U.S. expansion and settlements. Distant from U.S. markets, as well, prospects for economic recovery were slim at best. Consequently, the fortunes of Indian peoples was only to decline further through the next sixty years. Greed for more lands led to further damaging federal policies. Continued U.S. expansion brought increased natural resource needs and gold discoveries making the remote reservation lands suddenly attractive to Westerners.
In addition, by the 1870s Indian issues rose more in the national public eye as social reformers shifted attention from slavery. Demands for humanitarian action gathered momentum. An 1879 federal court ruling in United States ex rel. Standing Bear v. Crook asserted that Indians off-reservation were "persons" having the same constitutional due process and equal protection rights under the Fourteenth Amendment as U.S. citizens. The U.S. army no longer held broad authority to detain Indians without full civilian constitutional protections. However, much about the legal standing of Indian individuals still remained poorly defined. In 1884 the Supreme Court ruled the Fourteenth Amendment of the Constitution had not automatically granted citizenship to Indians.
A major period of forced cultural assimilation began with the General Allotment Act of 1887 and lasted into the 1930s. Assimilation means the U.S. government tried to blend Native Americans into the mainstream U.S. society. Many believed the Indian tradition of communally-owning property was a key barrier to Indians adopting Western ways. As a result, Congress passed the Allotment Act, also known as the Dawes Act, authorizing the Bureau of Indian Affairs (BIA) to divide all reservation lands into smaller parcels. The agency then allotted (assigned) 160-acre parcels to families and eighty-acre parcels to single adults over eighteen years of age. Indians receiving allotments also received U.S. citizenship. U.S. policymakers reasoned that when people owned their own property they would most likely become farmers and adopt the U.S. farming lifestyle.
Given the still relatively extensive land holdings of the Indians in 1887, much land was left over after every tribal member had received their allotment. Those unallotted lands were declared "surplus" and sold by the United States to non-Indians. In addition to the loss of vast amounts of "surplus" lands, much allotted land went into forfeiture (banks claim ownership) when many Indians could not pay taxes on their often remote unproductive desert properties. Even if the land was productive, markets were usually still too distant. The allotment policy became an economic disaster to Indian peoples, reducing Indian Country in the United States from 138 million acres in 1887 to forty-eight million acres by 1934. In many cases, the more agriculturally productive lands on reservations had passed out of tribal control.
In a further effort to assimilate Indians, all Indians born in the United States became U.S. citizens through the Indian Citizenship Act of 1924. The act also made Indians citizens of the states in which they resided. Although able to vote and hold state office, they are not subject to state law while on Indian lands. The Constitution's Bill of Rights, however, did not apply to protecting Indians from their tribal governments as it did from federal and state actions because of tribal sovereignty. As a result, tribal members could be subjected at times to harsher legal penalties from their own tribal governments than non-Indians in U.S. society for the same crimes.
Reorganizing Tribal Governments
By the 1930s the calamity of the allotment policy had become apparent. In an effort to end assimilation efforts, U.S. policy returned to stressing tribal sovereignty. The Indian Reorganization Act of 1934 ended the allotment process, stabilized remaining tribal land holdings, and promoted tribal self-government. The act encouraged tribes to adopt U.S.-style constitutions and form federally-chartered corporations. Although many tribes elected to organize under the rules of the act, many others rejected developing constitutions. Some organized new governments under their own tribal rules. However, even this seemingly friendly policy of encouraging formation of modern tribal governments had harmful social effects in Indian Country. The newly established more modern governments often came in conflict with the traditional tribal political leaders.
Urban Indians and Termination
Following World War II (1939945), other traditions began changing also. With thousands of Indians returning from military service abroad or working in defense plants, their exposure to mainstream U.S. society made life on poverty-ridden reservations less acceptable. Also, the GI Bill provided educational opportunities. More Indians began moving off-reservation into the newly expanding urban areas, seeking greater economic opportunity. The welfare of these urban Indians became an increasing concern of the federal government under its trust responsibilities.
In a few cases, tribes still held a sufficient land base with marketable natural resources such as timber began to develop an economic base and prosper. However, greed for Indian-owned assets of value rose again. By 1953 U.S. governmental policy significantly shifted back to assimilation, this time through "termination" policies. Termination of a tribe meant ending the special trust relationship and loss of reservation lands. The lands, some very productive, were sold to non-Indians and access to federal health and education services was taken away. The economic base for those Indian communities was devastated. In addition to termination, Congress also passed Public Law 280 in 1953. The act expanded state jurisdiction onto tribal lands in selected states, decreasing tribal sovereignty yet more in those areas.
Congressional support for termination did not last long as U.S. Indian policy again took a dramatic shift back in the 1960s toward a tribal government self-determination (govern own internal affairs) era. Influenced by the black American civil rights movement, a series of Congressional hearing in the 1960s focused on the lack of consistent civil rights protections offered by tribal governments to their members.
As a result, Congress passed the Indian Civil Rights Act (ICRA) of 1968 extending most of the Bill of Rights to Indian peoples including free speech protections, free exercise of religion, and due process and equal protection of tribal government laws. Not extended to Indians was the right to a jury trial in civil cases, free legal counsel for the poor, search and seizure protections, and prohibition on government support of a religion. Issues such as gender discrimination in tribal laws still could not be challenged under federal law. The act also cut back some of the states' authorities granted in Public Law 280. In respect for tribal sovereignty, interpretation of ICRA is left to the tribes and tribal courts, not federal courts. Federal courts can only review tribal court decisions in certain types of criminal cases.
Other legal distinctions for Indians were also identified. Title VII of the 1964 Civil Rights Act explicitly exempted Indian hiring preferences from its due process protections in some instances. The 1974 Court ruling in Morton v. Mancari affirmed that American Indians can be treated differently from other U.S. citizens by the federal government despite anti-discrimination laws. Tribes are political not racial groups on occasions when the U.S. government bases it actions on its trust responsibilities to protect Indian interests and promote tribal sovereignty. If the Indian preference laws were only designed to help Indians as individuals, they then could be determined illegal.
With civil rights protections different from other U.S. citizens, determining who is Indian has important legal consequences. Constituting a political rather than racial group, tribal members may gain membership to a tribe through birth or marriage and may have substantial non-Indian ancestry. Conversely, a person of total Indian ancestry who has never established a relationship with a tribe may not enjoy Indian legal status. Each of the over 550 recognized tribes in the United States is responsible to determine membership as an exercise of their tribal sovereignty. In general, an Indian is anyone with some degree of Indian ancestry, considered a member of an Indian community, and promoting themselves as Indian.
The biggest boost in support of tribal sovereignty and self-sufficiency came in 1975 when Congress passed the Indian Self-Determination and Education Assistance Act. The act gave tribes much greater opportunity to administer federal programs benefitting Indian peoples that were previously administered by the BIA. Many of these programs provided health and education services.
Through the rest of the twentieth century Congress continued passing acts protecting tribal rights and interests, including the American Indian Religious Freedom Act (1978), Indian Mineral Development Act (1982), Indian Gaming Regulatory Act (1988), the Native American Graves Protection and Repatriation Act (1990), and the Indian Self-Governance Act (1994). By the 1990s, tribes could form and reorganize their own governments, determine tribal membership, regulate individual property, manage natural resources, provide health services, develop gaming businesses, regulate commerce on tribal lands, collect taxes, maintain law enforcement and establish tribal court systems. By the end of the twentieth century, tribal court systems had greatly expanded as many tribes gained greater economic and political power. However, due to the broad diversity of tribal legal systems, the meaning of justices and the way it was applied differed from tribe to tribe. Besides those patterned after United States models, some tribes retained traditional systems and others no system at all.
By 2000, the resulting branch of U.S. law, commonly called Indian Law, was a very peculiar part of the U.S. legal system with tribal governments and their peoples possessing a unique legal status. Members of federally recognized tribes were both U.S. and tribal citizens, simultaneously receiving benefits and protections from federal, state, and tribal governments.
Suggestions for further reading
Hirschfelder, Arlene, and Martha K. de Montano. The Native American Almanac: A Portrait of Native America Today. New York: Prentice Hall, 1993.
Prucha, Francis P. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press, 1986.
Red Hawk, Richard. A Trip to a Pow Wow. Sacramento, CA: Sierra Oaks Publishing Co., 1988.
Riley, Patricia, editor. Growing Up Native American. New York: Morrow, 1993.
Washburn, Wilcomb E., editor. Handbook of North American Indians: History of Indian-White Relations, Vol. 4. Washington, DC: Smithsonian Institution Press, 1988.
Weatherford, Jack. Indian Givers: How the Indians of the Americas Transformed the World. New York: Fawcett Columbine, 1988.
Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven: Yale University Press, 1987.