Life Ways Directly Tied to Nature – Acoma Pueblo
Life Ways Directly Tied to Nature - Na:tinixwe (Hoopa)
There is a Native Reality that continues to exist from time immemorial... –These are our stories, our truths –These are our traditions, our life ways –These are our covenants and they are and will continue to be carried out despite obstacles and to the best of our abilities
European History and Judeo/Christian world view and values – Not today’s topic – Major section of the puzzle
Pestilence and Genocide. American Holocaust, David Stannard “During the course of four centuries – from the 1490’s to the 1890’s – Europeans and white Americans engaged in an unbroken string of genocide campaigns against the native peoples of the Americas.”
Just how bad was it? “... As they were tying (a native leader) to the stake, a Franciscan friar urged him to take Jesus to his heart so that his soul might go to heaven, rather than descend into hell. “He replied that if heaven was where the Christians went, he would rather go to hell.”
Bartolome de Las Casas reported a killing spree of well over 20,000 started with soldiers testing sharpened blades by ripping open bellies and cutting open Indians near by. “To see the wounds which covered the bodies of the dead and dying was a spectacle of horror and dread.”
“They built a long giblet, low for the toes to touch the ground and prevent strangling and hanged 13 (natives) at a time in honor of Christ Our Saviour and the twelve Apostles. “When the Indians were thus still alive and hanging, the Spaniards tested their strength and their blades against them, ripping chests open with one blow and exposing entrails, and there were those who did worse. Then, straw was wrapped around their torn bodies and they were burned alive. “One man caught two children about two years old, pierced their throats with a dagger, then hurled them down a precipice.”
The Columbus legacy Closing Comments on the Indies In less than the normal lifetime of a single human being, an entire culture of millions of people, thousands of years resident in their homeland, had been exterminated. Then the Spanish turned their attention to Mexico.
The “Black Legend” is the idea that the Spanish were unduly and unfairly criticized for their behavior in the New World. Based on two general principles: –that the stories of Spanish cruelties toward Indians, largely traceable to the writings of Bartolome de Las Casas are untrue; –that the cruelties of other European nations against the native peoples of the Americas were just as condemnable. Historians have shown Las Casas accounts to be remarkably accurate. The second contention is correct, especially as to the British and Americans.
N. America - Prevailing attitudes George Washington ordered destruction of the Iroquois, saying Indian were little different from wolves, “both being beasts of prey, tho’ they differ in shape.” –among other atrocities, his victorious troops skinned the bodies of some Indians “from the hips downward, to make boot tops or leggings.” 1851 CA Governor Peter Burnett announced the necessity for a total eradication of the natives: “the white man, to whom time is money, and who labors hard all day to create the comforts of life, cannot sit up all night to watch his property. After being robbed a few times he becomes desperate, and resolves upon a war of extermination... (that must) continue to be waged between the races until the Indian becomes extinct.”
The Aftermath By the end of the 19th century –only 15,000, 1% of the California population was Indian –Nationwide only about 1/3 of 1% of America’s population was Indian - 250,000 out of 76,000,000 –Most surviving natives were stored safely away on remote and impoverished reservations, suffering from disease, malnutrition, and despair. Not very Christian of them, or was it?
Doctrine of Discovery By law and divine intention European Christian countries gained power and legal rights over indigenous non-Christian peoples and territories immediately upon their “discovery” by Europeans. Developed by European monarchs and their legal systems to benefit their own countries. The Discovery Doctrine was adopted into American law. In 1823 the U.S. Supreme Court adopted the doctrine in Johnson v. M’Intosh when it prohibited sale of Indian lands to individuals. Johnson is still federal law today. It is a pillar of federal Indian law notwithstanding its Eurocentric, religious, and racial underpinnings.
Manifest Destiny “… (It is ) our manifest destiny to overspread the continent allotted by providence for the free development of our yearly multiplying millions.” John O’Sullivan, 1845 Problem –the continent was not empty, but inhabited by hundreds of American Indian tribes. To deal with this conflict, the federal government began passing laws that dictated how it would deal with these "troublesome" Indians. –The laws were designed to help white Americans move and settle into Western lands - lands that were the ancestral homes of Indians.
U.S. Government –The System – Laws Federal Indian Law
Sovereignty and Federal Law Who’s story is it? Answers to questions involving Indians and Tribes generally involve the interplay of many factors. Principle factors are: –The unique history of Indian peoples as the indigenous population of the Americas –The rules and workings of the Anglo- American Legal System
The Anglo-American Legal System crafts (and controls) the story represented by federal Indian law, i.e., all the special laws that apply to Indians The Anglo-American Legal System shapes and defines what we generally identify as “tribal sovereignty.” –Focus is on the unique legal status of American Indians and tribes –Federal laws shape that status
What Special Laws? Law made by legislative bodies (key terms) –Bill: Formally introduced legislation. –Statutes: Statutes at Large is the permanent collection of all laws and resolutions enacted during each session of Congress, published in order of the date it was enacted into law. –Code: statutes organized in topical arrangements (or “codified”) within publications called codes, such as the United States Code. (Title 25 = “Indians”) http://www.gpoaccess.gov/uscode/browse.html http://www.gpoaccess.gov/uscode/browse.html Many laws enacted by Congress require agencies to issue regulations, details on how the law will be implemented. Regulations have the force of law. –Regulations are published daily in the Federal Register and are then codified in the Code of Federal Regulations once a year. http://www.gpoaccess.gov/cfr/index.html http://www.gpoaccess.gov/cfr/index.html
History serves as a backdrop to: provide a context help make sense of the rules that apply today. Familiarity with Anglo-American legal system & Policy shifts explain otherwise disjointed laws that govern Indian affairs today.
The ebb and tide of federal policy (How to deal with troublesome Indians.) 1787-1828: Agreements Between Equals 1828-1887: Relocation of Indians 1887-1934: Allotment and Assimilation –The Boarding School Legacy 1934-1953: Indian Reorganization 1943-1968: Termination 1968-Present: Tribal Self-Determination
American Indians and Alaska Natives Today 562 Sovereigns Population: –2,475,956 AI/AN living in U.S –BIA estimates 950,000 live on or adjacent to federal Indian reservations. –CA has largest AI/AN population, but only 1% of total state population. 333,346. Indian Tribes: –562 federally recognized tribes, including 223 Alaska groups. –107 federally recognized tribes in CA. –Approximately 40 CA tribes petitioning for recognition. Reservations: –278 Indian land areas administered as reservations –Largest is the 16 million acre Navajo Res.; many small CA reservations less than 100 acres. –Land ownership patterns vary. Trust Lands: –56.2 million acres held in trust by U.S. for Indians and tribes. –452,567 acres in California –Secretary of Interior serves as trustee.
Federal Appropriations for Indians Many federal agencies allocate funds for a multitude of Indian programs. –Interior (Bureau of Indian Affairs.) –Health and Human Services (Indian Health Service, Administration for Native Americans.) –Education, Agriculture, Commerce, HUD, Justice… BIA budget for FY 2001 was 1.8 billion, request for 202 was 2.2 billion. BIA programs include: –Tribal Operations, Education, Social Services, Law Enforcement, Economic Development, Housing, Natural Resources, Construction, Roads, etc.
Tribal Sovereignty, the “Official” Story A more detailed look at key concepts and controlling authority
The Special Relationship between the Federal Government and Tribal Nations Origins of Tribal Sovereignty Significance of Treaties Federal responsibility –The United States has a trust responsibility to Indian tribes –Plenary power Principles of Indian Nations’ Sovereignty (external/internal) Tribal Sovereignty in Indian Country today its meaning and limits (jurisdiction) Tribes retain important sovereign powers over their members and their territory (government powers)
Unique Political Status of Tribes Quasi-Sovereign Nations
What’s So Special About an American Indian Tribe? U.S. Constitution requires equality under the law. Indians subject to many laws that only apply to Indian people, e.g., ICWA and employment preference. Laws appear to mean discrimination in favor of Indians. Why is this permitted?
Morton v. Mancari (1974) 417 U.S. 535 BIA employees disputed Indian preference. U.S. Supreme Court decision addresses a complicated area: The nature of an American Indian Tribe. Court examined history and purpose of preferences: 1.to give Indians greater participation in self- government; 2.further trust obligations toward Indian tribes; 3.reduce negative effects of having non-Indians administer matters that effect Indian tribal life.
The official story... Why are Indian tribes treated differently than any other group? Answer: –What makes tribes so special are political factors, not racial or cultural. A tribe is an ethnic group – cultural entity – but also has the political right to self-government. Tribes stand in a government-to- government relationship with the United States.
The Mancari decision makes this important point clearly: “(Indian Employment Preference) does not constitute ‘racial discrimination.’ Indeed, it is not even a ‘racial’ preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self government... The preference, as applied, is granted to Indians not as a discrete racial group, but, rather as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”
Tribes as Quasi-Sovereign Nations Fundamental principles governing decisions on the nature of Tribal powers: –Indian tribes possess, in the first instance, all powers of any sovereign state. –Conquest renders tribes subject to the legislative power of the U.S. (Plenary Power), and terminates the external powers of sovereignty of the tribe, but does not, by itself, affect the internal sovereignty of the tribe. –These powers are subject to qualification by treaties and by express legislation by Congress, but, except as expressly qualified, full powers of internal sovereignty are vested in the tribes and their duly constituted governments.
“Decisions” - Case law (yet another source of federal Indian law) Organized in Case Reporters. Multi-volume sets including the text of all reported cases of the various courts. Federal Reporters and State Reporters. Case “holdings” state principles or rules that must thereafter be applied in similar settings. http://caselaw.lp.findlaw.com/scripts/getcase.pl? court=US&vol=31&invol=515http://caselaw.lp.findlaw.com/scripts/getcase.pl? court=US&vol=31&invol=515
“Stare Decisis” – Case Rule (Brief Digression – important puzzle piece) Latin – to abide by, or adhere to, decided cases. Policy of courts is to stand by precedent and not to disturb settled point – grounded on theory security and certainty require that legal principle, under which rights may accrue, be recognized and followed. Doctrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same. Precedent binds same court or courts of equal or lower rank unless properly overruled.
The Marshall Trilogy The three foundational decisions authored by Chief Justice John Marshall in the early 1800’s. [Johnson v. MacIntosh (1823); Cherokee Nation v. Georgia (1831); Worcester v. Georgia (1832)] The cases reaffirmed the sovereignty of Indian tribes and acknowledged this as predating European arrival. Marshall used the phrase "domestic dependent nations" to describe the political status of tribes. These words expressed the fact that tribes, after conquest and through treaty, had agreed to be under the protection of the United States. Cornerstone of U.S./tribal relationship is mutual consent.
Treaties – Consent as a Cornerstone A treaty is a contract between sovereign nations. The Constitution authorizes the President, with consent of 2/3 of the Senate, to enter into a treaty on behalf of the U.S. Generally, a sovereign entity must be recognized by another sovereign. For Indian tribes, that recognition has taken place through government-to-government treaties. Until 1871 treaties were the acceptable method by which the U.S. conducted its relations with Indian tribes. (Thereafter Congress has regulated Indian affairs through legislation.) Nearly 400 treaties were signed between Indian tribes and the United States.
Treaties in California 18 treaties were negotiated with tribes throughout the state in the 1850’s. Under intense pressure from the California legislature, the treaties were never ratified. There are no Indian treaties in California. Treaties remain relevant to California Indians as laying a foundation for government-to- government relationships, as the basis for Court of Claims cases that resulted in comprehensive identification of California Indian and a unique service delivery system. (E.g. Indian Health Care.)
Tribal Sovereignty Sovereignty is: –The supreme power from which all specific political powers are derived. –It is inherent – it comes from within a people or a culture. –It includes the power of self-government (internal sovereignty) and power to deal with other nations (external sovereignty). When subject to federal law, the external sovereignty of the tribe is generally considered to be extinguished. However, the internal sovereignty of the tribe remains. (Except as limited by Congress – expressly or by implication.)
Powers of Internal Sovereignty (Tribal Local Self-Government) Power to select own form of government. Power to make and enforce laws. Power to define and regulate use of its territory. Power to determine membership. (for tribal purposes.) Power to regulate trade within its borders. Power to Impose and Collect Taxes. Power to regulate domestic relations. Power to regulate property.
Plenary Power Derived from the latin term "plenus" meaning "full", plenary authority refers to the complete power of a governing body. Congress has complete power over Indian affairs. This power may be limited by Constitutional principles, but thus far, only one statute has ever been struck down by the courts as Unconstitutional
How is it that tribes can simultaneously exist as sovereigns and be subject to Congressional action? The answer resides both in: –the commerce clause of the Constitution which confers Congress with the power to regulate commerce between "foreign nations, among the several states, and with the Indian tribes [italics added]" (U.S. Constitution, Art. 1, sec. 8, clause 3); and –in the power granted to Congress to negotiate treaties. –From these two sources, Chief Justice John Marshall established Constitutional precedence for Congressional authority in Indian Country which is called plenary power.
Doctrine of trust responsibility The principle, grounded in treaties, that government has a duty to keep its word and fulfill its promise. NOW, viewed as source of federal responsibility to Indians. Two sets of commitments: –(1) broadly, feds must support and encourage tribal self-government and economic prosperity – duty to protect native land base and ability of tribes to continue their way of life; – (2) the federal government, as guardian of tribal resources, is under the highest fiduciary standard in a trustee-beneficiary relationship. (Although a general trust relationship exists, precise duties may not be clear. However, the more specific the obligation, the higher the duty of care.)
Territory - “Borders” If a group of individuals owns land, it is called property. But the land/geographical area occupied by a political entity is called territory. The word - and the land - have political significance because within that territory, the rules of the political entity will be enforced over its people and recognized by other political entities. –“Jurisdiction” is the power of a government to rule its people and territory. Tribes occupy “Indian Country”.
What is Indian Country? The federal definition of Indian Country is found in Title 18, U.S. Code §1151 and includes: All lands within the boundaries of an Indian reservation, regardless of ownership. Rights of way that run through reservations. Dependent Indian communities – land set aside (and supervised) by the federal government for use, occupancy or benefit of Indians…even if not part of a reservation. All trust and restricted lands, where ever located, even if not within a reservation.
Federal Recognition Longstanding definition of Tribes simply as groups “recognized as eligible for services provided to Indians because of their unique status as Indians.” 1978 BIA adopted regulations calling for periodic Federal Register publication of a list of recognized tribes. –The list does not correspond to aboriginal tribal groups. –IRA, Reservation based groups are the “tribes” that ended up listed by the BIA
“Federally recognized” tribes have a special legal relationship with the U.S. The listed entities are acknowledged to have the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government- to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes. While there are MANY definitions of “Indian”, Indians must enjoy political status, currently and increasingly viewed as being a member or “citizen” of a recognized tribe, in order to benefit from most federal Indian Laws.
Federal Recognition 25 C.F.R. Part 83 establishes a procedure for an “unrecognized tribe” to petition for recognition. Tribes may gain recognition (have political status as a tribe acknowledged or restored) from the BIA under regulations or through other means; or through litigation or legislation.
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 http://www.bia.gov/WhoWeAre/BIA/OIS/TribalGovernmentServices/TribalDirectory/index.htm http://www.bia.gov/WhoWeAre/BIA/OIS/TribalGovernmentServices/TribalDirectory/index.htm
Recognition – The Special Case of California Under longstanding definitions, Indians of CA have been recognized for many purposes. A federal service delivery system allows certification of CA Indian status and eligibility for services. BIA generally selected groups occupying trust lands for inclusion on CFR list, excluding many aborginal/historic CA Tribes. (Unratified treaties.) Reliance on CFR list, renders many CA Indians and tribes unrecognized, even though they receive federal services and reside on lands held in trust for their benefit. Response to unique case of CA Indians is ongoing, with special legislation and litigation continuously addressing the problem.
Unique Political Status of Indians The first “Americans” Citizens of Quasi-Sovereign Nations
MULTIPLE DEFINITIONS OF INDIAN No universally accepted definition. Can be defined in an ethnological (cultural or racial) or in a legal sense.
Different laws use different definitions, there are MANY. –Some use Indian descent –some require ¼ or ½ Indian blood –others rely upon membership in a “federally recognized” Indian tribe –Many laws use the term Indian without defining it. (Agencies then decide.)
Courts tend to use two part test: –Person must have some Indian blood –Indian community must recognize person as Indian. Increasingly, an Indian is viewed as persons who are member (“citizens”) of federally recognized Indian tribes.
25 U.S.C. §1679. Eligibility of Calif. Indians (How complicated does it get?) (b) Eligible Indians Until such time as any subsequent law may otherwise provide, the following California Indians shall be eligible for health services provided by the Service: (1) Any member of a federally recognized Indian tribe. (2) Any descendant of an Indian who was residing in California on June 1, 1852, but only if such descendant - (A) is living in California, (B) is a member of the Indian community served by a local program of the Service, and (C) is regarded as an Indian by the community in which such descendant lives. (3) Any Indian who holds trust interests in public domain, national forest, or Indian reservation allotments in California. (4) Any Indian in California who is listed on the plans for distribution of the assets of California rancherias and reservations under the Act of August 18, 1958 (72 Stat. 619), and any descendant of such an Indian.
Multiple Definitions of Indian 25 U.S.C. §1901, et seq. ICWA Tribe – “recognized as eligible for services.” Indian – (1) Member of a tribe; (2) Know or reason to know person an Indian – notice; (3) Health Care Improvement Act definition. 25 U.S.C. § 479 (IRA) (1)Members of any federally recognized Indian tribe. (2)Descendants of such members who were residing within an Indian reservation on the effective date of the Act. (3)All persons of ½ or more Indian blood of tribes indigenous to the United States (4)Eskimos and other aboriginal peoples of Alaska.
Contemporary Identity Challenges –Tribes have merged or split –Increased contact among all racial/social groups –Many members have moved off reservations –Many members have lost touch with tribe –Intertribal and inter-racial marriages –Children adopted out, return years later –People who may not have the right to membership try to enroll so that they can qualify for a share in tribal assets, federal benefits, or hunting and fishing rights, etc.
Blood Quantum Requirement of having an ancestor on a base membership roll is fairly universal. Blood quantum standards are common –Basic rule to figure blood quantum: a child’s Indian tribal blood degree is ½ of the combined Indian, sometimes tribal, blood of his parents. mother’s blood + father’s blood / 2 = child’s blood ¼ + 4/4 / 2 = 5/8
Tribal Membership Criteria Tribal Constitutions establish the framework for tribal governing systems. Constitutions generally establish basic membership requirements and set forth the basic membership at the time the Constitution is approved. Constitutions generally must be adopted by a vote open to all “members”. (generally determined by reference to some official document – base roll. Census document, allotment schedule, payment roll.)
Constitution of the Cherokee Nation of Oklahoma Article III. Membership Section 1. All members of the Cherokee Nation must be citizens as proven by reference to the Dawes Commission Rolls, including the Delaware Cherokees of Article II of the Delaware Agreement dated the 8th day of May, 1867, and the Shawnee Cherokees as of Article III of the Shawnee Agreement dated the 9th day of June, 1869, and/or their descendants.
CONSTITUTION OF THE SIPAYIK MEMBERS OF THE PASSAMAQUODDY TRIBE (DRAFT) ARTICLE III. TRIBAL MEMBERSHIP. Section 1. Requirements for Membership. In accordance with action of the Joint Tribal Council establishing tribal membership criteria, enrollment and recognition as a Sipayik member of the Passamaquoddy Tribe shall be extended to all persons who: (a) possess at least one-quarter degree Passamaquoddy Indian ancestry; and (b) are not members of any other Indian tribe; and (c) have not relinquished their membership in the Passamaquoddy Tribe by signing a document to that effect and delivering it to the Sipayik Governor, or by maintaining membership in another tribe, provided that a former member may reapply for membership upon his or her revoking the signed resignation or forsaking membership in another tribe, and (d) have chosen to maintain their membership exclusively at Sipayik. Blood quantum shall be determined in accordance with the 1900 Tribal Census and all persons listed as Passamaquoddy on the 1900 Tribal Census shall be considered to be 100% Passamaquoddy Indian ancestry.
C ONSTITUTION OF THE WHITE MOUNTAIN APACHE TRIBE ARTICLE II - MEMBERSHIP Section 1. Requirements. The membership of the White Mountain Apache Tribe shall consist of: –(a) All persons who were qualified for and were accepted into membership in the White Mountain Apache Tribe under the membership requirements as of the date of enactment of this constitution. –(b) All persons of one-half (1/2) degree or more Indian blood, of a federally recognized Indian tribe or tribes, Provided, That the person is at least one-fourth (1/4) degree White Mountain Apache blood.