WHAT were these Spaniards and other Europeans telling themselves to convince themselves that what they were doing was justifiable?
Well, they got a lot of their rhetoric from the Bible, it seems. And this got spun into some sort of “natural-law obligation.”
“Every animal loveth it’s kind” – Ecclesiastes. Therefore, one writer said, “it appears that friendship among men exists by natural law and it is against nature to shun society of harmless folk…” also, he said, in the book of Matthew, “I was a stranger and ye took me in’… hence as the reception of strangers seems to be by natural law, that judgment of Christ will be pronounced with universal application.”
In other words, they pulled some random quotes from the BIBLE and decided they meant the Indians HAD to welcome them or they were violating the natural order of things.
This, of course, was news to the Indians.
Another line that was trotted out? “Natural law opened the land of the Indians to Spanish economic exploits. The sovereign of the Indians is bound by the law of nature to love the Spaniards. Therefore the Indians may not causelessly prevent the Spaniards from making their profit where it can be done without any injury to themselves.”
I wonder how this would have worked if the Indians came to Spain and set up shop wherever they felt like it.
Then of course, it went further. “Brotherly correction is required by the law of nature, just as the law of brotherly love is. Since then, the Indians are not only all in sin, but outside the pale of salvation, therefore, it concerns the Christians to correct and direct them, nay, it seems they are bound to do so.”
Writings from many scholars and politicians went on to say, basically, that if the Indians tried to stop the Spaniards from taking over the land, it was justifiable to use whatever force was necessary against the Indians. And in addition, it was the DUTY of the Christians to force their religion on the Indians.
So, this was essentially the mindset that the Spaniards had. In the next post, we’ll hit on how this carried over to the English, and from there, to the Americans, giving us the first foundation for federal Indian law.
Sunday, March 25, 2007
the earliest days of discovery
Ok, NOW we are getting into the good stuff… starting back at the beginning – (or the beginning of the end, depending on how you look at it)
Indian law is unique because it wasn’t just created out of another set of laws; it wasn’t just written up and adhered to. Instead, it kind of evolved out of trial and error. The laws affecting Indians were kind of made up as we went along – most came about as a RESPONSE to something that was happening right then. Since Indian law evolved out of the relationship between conquerors and conquests, it’s different than other kinds of law because there were a lot of issues to sort out.
First – what rights did the Indians have to the land? Second – What power did the US have over the Indians and their land? Third – what duties and obligations were there on both sides?
They had to start somewhere, right? First the court had to start hammering out these issues, before they could start moving on to the technical stuff.
Indian law and policy in dealing with Indians pre-dates this country. Before we became the US of A, there were already treaties and agreements and rules that were followed because, if you will recall, ENGLAND staked claim to this part of the world, first. And before, during and after England claimed this land, there was conflict with the Spaniards, the French, and other European groups as everyone wanted to claim this new land.
So the first matter that they all realized had to be addressed, before even discussing the Indians, was which of these European nations had the right to the land. (I am not saying they did have ANY right to the land, I am saying this from the perspective of the explorers and settlers – they thought they did, and at the time, they saw the Indians kind of as in their way… a problem that had to be dealt with.)
The “Old World” had some interesting rationales to justify their presence and taking of the land that is now America. Back in the 1400’s, the Pope was seen, through a major part of Europe, as the gatekeeper to heaven – he was seen as having divine spiritual jurisdiction over everyone’s soul – he alone could decide whether they would go to heaven or not. He permitted explorers to go out and look for new lands, in order to bring the word of God to these lands and Christianize them. Back in those days, the natives of these new lands were seen as “heathens” because they didn’t know about the Christian god… and therefore, Europe and the Christianized world didn’t really see them as equals, but as savages. Hardly better than the animals that also populated these strange lands. It was seen as “natural law” that the “advanced” Christians should go forth and bring the word of God to these lands, and deliver ownership of these lands (and their riches) to the Church.
So, in the 1400’s, the King of Portugal asked the Pope for permission to conquer the Canary islands off Africa. He convinced the pope that the people there were essentially animals, because they didn’t have a form of writing, they didn’t live in houses, they didn’t wear the same clothes as Europeans. The pope bought it, and issued the “Romanus Pontifex” which was a legal edict, binding on all Christian kings and monarchs, confirming that Portugal had the exclusive right to colonize not just the Canary islands, but other parts of Africa as well.
At this point, the kings of other countries looked at each other, and thought, “now what?” They wanted to explore and conquer distant lands as well, increasing THEIR kingdoms, too. At this point, Christopher Columbus approached the king of Spain, and pointed out that since Africa was off-limits, they should sail WEST across the ocean, looking for a shorter route to India. As a bonus, any undiscovered lands out there in the west, could be claimed for Spain.
The king told him to go for it. And so Columbus apparently thought that any lands he came across that were not claimed by other “civilized” nations, but which were inhabited by indigenous people only, were his for the taking, under the guise of the Spanish Crown. If the inhabitants diverged from Christian civilization, they and their lands were fair game.
In his explorations, Columbus came across a lot of land in the west Indies (the Caribbean) and the mainland of the US. He came back to the King of Spain, and told him of the “savages” that lived there, and the king of Spain shipped off a letter to the pope, telling him of these unchristianized people. Pope Alexander the 6th then issued edicts giving Columbus and Spain the right to colonize these lands and conquer them for Spain. (I wonder if the fact that this pope was a Spaniard AND stood to profit from the conquests had anything to do with it… hmmm)
So once the pope had issued edicts giving Spain the title to these lands, it was pretty much locked and loaded for the Spaniards. They had title over ALL OTHER EUROPEAN COUNTRIES and civilized nations. The other countries were not going to mess with this right because they all feared the power of the pope… nobody wanted to cross him and risk getting excommunicated and kicked out of the Kingdom of Heaven, right?
The areas Spain conquered were often decimated. They use the term “black legend” to refer to the destruction the Spaniards brought. American Historian Angie Debo estimates that in the first 20 years of colonial administration in Hispaniola, which was one of the first colonies in the Caribbean, the population of the indigenous people tanked from 250,000 to 15,000. IN TWENTY YEARS! In other places, the indigenous population disappeared completely.
Want to know a funny fact? Spain, in order not to feel guilty about what they were doing to these people, had their lawyers (yes, us lawyers are like cockroaches, we have been around forever) draft up a document called the “requerimiento” that the king said had to be read to ALL of the groups of natives before the Spaniards tried to conquer them. This document was unbelievable.
It said, in essence, that god had given charge of the whole human race to the pope, who had donated these lands to the king and queen of Spain. The Indians were told this was all put down in the pope’s bulls, or writings, and they could see them if they wished. (like the Indians cared what some far-off jerk was ordering… what right did he have to do this? Who was this GOD that gave him the power?) Then the requerimiento explained what was expected of the indigenous people… they were told to take some time and think about this, and to acknowledge that the pope was the leader and ruler and superior of the WHOLE WORLD, and they had to consent to letting these new leaders preach to them about God. The requerimiento went on to tell them what would happen if they didn’t follow these new orders… they were told that with “god’s help” the Spaniards would forcefully enter the new lands, enslave them, take their belongings… and that if anyone who was killed in the doing of this, it was the fault of the natives.
Sometimes these turkeys even tried to get these natives to SIGN an agreement that they understood and agreed to these requirements.
Now the lawyers of Spain had written this long document out, and the Spanish conquerors were supposed to read this to the locals first. In reality, they often whispered it under their breath right before they attacked a sleeping Indian village at night, or read it a mile away from the people before they snuck up and attacked them. And even they DID read it to these people… the INDIGENOUS DID NOT SPEAK SPANISH! Most of them had no idea what the hell these crazy Spaniards were going on about!
But, it made the king of Spain feel better, and made him feel that they were fairly dealing with the native population. Charming, isn’t it?
Indian law is unique because it wasn’t just created out of another set of laws; it wasn’t just written up and adhered to. Instead, it kind of evolved out of trial and error. The laws affecting Indians were kind of made up as we went along – most came about as a RESPONSE to something that was happening right then. Since Indian law evolved out of the relationship between conquerors and conquests, it’s different than other kinds of law because there were a lot of issues to sort out.
First – what rights did the Indians have to the land? Second – What power did the US have over the Indians and their land? Third – what duties and obligations were there on both sides?
They had to start somewhere, right? First the court had to start hammering out these issues, before they could start moving on to the technical stuff.
Indian law and policy in dealing with Indians pre-dates this country. Before we became the US of A, there were already treaties and agreements and rules that were followed because, if you will recall, ENGLAND staked claim to this part of the world, first. And before, during and after England claimed this land, there was conflict with the Spaniards, the French, and other European groups as everyone wanted to claim this new land.
So the first matter that they all realized had to be addressed, before even discussing the Indians, was which of these European nations had the right to the land. (I am not saying they did have ANY right to the land, I am saying this from the perspective of the explorers and settlers – they thought they did, and at the time, they saw the Indians kind of as in their way… a problem that had to be dealt with.)
The “Old World” had some interesting rationales to justify their presence and taking of the land that is now America. Back in the 1400’s, the Pope was seen, through a major part of Europe, as the gatekeeper to heaven – he was seen as having divine spiritual jurisdiction over everyone’s soul – he alone could decide whether they would go to heaven or not. He permitted explorers to go out and look for new lands, in order to bring the word of God to these lands and Christianize them. Back in those days, the natives of these new lands were seen as “heathens” because they didn’t know about the Christian god… and therefore, Europe and the Christianized world didn’t really see them as equals, but as savages. Hardly better than the animals that also populated these strange lands. It was seen as “natural law” that the “advanced” Christians should go forth and bring the word of God to these lands, and deliver ownership of these lands (and their riches) to the Church.
So, in the 1400’s, the King of Portugal asked the Pope for permission to conquer the Canary islands off Africa. He convinced the pope that the people there were essentially animals, because they didn’t have a form of writing, they didn’t live in houses, they didn’t wear the same clothes as Europeans. The pope bought it, and issued the “Romanus Pontifex” which was a legal edict, binding on all Christian kings and monarchs, confirming that Portugal had the exclusive right to colonize not just the Canary islands, but other parts of Africa as well.
At this point, the kings of other countries looked at each other, and thought, “now what?” They wanted to explore and conquer distant lands as well, increasing THEIR kingdoms, too. At this point, Christopher Columbus approached the king of Spain, and pointed out that since Africa was off-limits, they should sail WEST across the ocean, looking for a shorter route to India. As a bonus, any undiscovered lands out there in the west, could be claimed for Spain.
The king told him to go for it. And so Columbus apparently thought that any lands he came across that were not claimed by other “civilized” nations, but which were inhabited by indigenous people only, were his for the taking, under the guise of the Spanish Crown. If the inhabitants diverged from Christian civilization, they and their lands were fair game.
In his explorations, Columbus came across a lot of land in the west Indies (the Caribbean) and the mainland of the US. He came back to the King of Spain, and told him of the “savages” that lived there, and the king of Spain shipped off a letter to the pope, telling him of these unchristianized people. Pope Alexander the 6th then issued edicts giving Columbus and Spain the right to colonize these lands and conquer them for Spain. (I wonder if the fact that this pope was a Spaniard AND stood to profit from the conquests had anything to do with it… hmmm)
So once the pope had issued edicts giving Spain the title to these lands, it was pretty much locked and loaded for the Spaniards. They had title over ALL OTHER EUROPEAN COUNTRIES and civilized nations. The other countries were not going to mess with this right because they all feared the power of the pope… nobody wanted to cross him and risk getting excommunicated and kicked out of the Kingdom of Heaven, right?
The areas Spain conquered were often decimated. They use the term “black legend” to refer to the destruction the Spaniards brought. American Historian Angie Debo estimates that in the first 20 years of colonial administration in Hispaniola, which was one of the first colonies in the Caribbean, the population of the indigenous people tanked from 250,000 to 15,000. IN TWENTY YEARS! In other places, the indigenous population disappeared completely.
Want to know a funny fact? Spain, in order not to feel guilty about what they were doing to these people, had their lawyers (yes, us lawyers are like cockroaches, we have been around forever) draft up a document called the “requerimiento” that the king said had to be read to ALL of the groups of natives before the Spaniards tried to conquer them. This document was unbelievable.
It said, in essence, that god had given charge of the whole human race to the pope, who had donated these lands to the king and queen of Spain. The Indians were told this was all put down in the pope’s bulls, or writings, and they could see them if they wished. (like the Indians cared what some far-off jerk was ordering… what right did he have to do this? Who was this GOD that gave him the power?) Then the requerimiento explained what was expected of the indigenous people… they were told to take some time and think about this, and to acknowledge that the pope was the leader and ruler and superior of the WHOLE WORLD, and they had to consent to letting these new leaders preach to them about God. The requerimiento went on to tell them what would happen if they didn’t follow these new orders… they were told that with “god’s help” the Spaniards would forcefully enter the new lands, enslave them, take their belongings… and that if anyone who was killed in the doing of this, it was the fault of the natives.
Sometimes these turkeys even tried to get these natives to SIGN an agreement that they understood and agreed to these requirements.
Now the lawyers of Spain had written this long document out, and the Spanish conquerors were supposed to read this to the locals first. In reality, they often whispered it under their breath right before they attacked a sleeping Indian village at night, or read it a mile away from the people before they snuck up and attacked them. And even they DID read it to these people… the INDIGENOUS DID NOT SPEAK SPANISH! Most of them had no idea what the hell these crazy Spaniards were going on about!
But, it made the king of Spain feel better, and made him feel that they were fairly dealing with the native population. Charming, isn’t it?
Saturday, March 24, 2007
American Indians Today - Assimilation of NDNs
Whew... sorry for the delay folks, I left town over spring break and just got back!
Well, here I am... this is the last section of the PREVIEW of everything to come - after this post, we're heading back to the beginning, and we're going to start with the Doctrine of Discovery, and then move on from there in more detail on everything.
Okay, the Assimilation of Indians.
Federal indian policy has always dealt with one core issue... whether and to what extent the US should permit/encourage/FORCE the assimilation of indians into the main society of the United States. Should we have reservations? Why or why not?
Obviously, there are a lot of reasons the US would love to see the indians assimilated, or blended into the mainstream; losing their special status and rights. For starters, the indian land and resources (like timber, minerals, the LAND they could be taxing) are pretty strong incentives.
A lot of non-indians who don't know much about the issue presume indians would benefit by leaving tribal life behind and sharing in the larger society. This mindset is kind of a spinoff of the same "we are better than them" mentality you're going to see in the next post about the doctrine of discovery. People who don't know any indians don't GET the reality of the situation, and that's one of the things I hope this blog can educate people on. It's so easy to tell another group of people to conform to your culture if you don't understand where they are "coming from" or what their life and values and culture are really about. And people who don't know squat about indians should probably not be making decisions regarding the future of indians... but on the other side, indians should probably not be telling everyone who is not full-blooded indian that they don't know what they are talking about and not hear what they have to say.
Both sides (or actually the many sides.. this is not an issue where people fall into ONLY camp 1 or camp 2, there are MANY different viewpoints and perspectives and mindsets and levels of experience and education) should listen to the other. That's all I am saying. I wish people would all hear each other out and THINK about what they learn before they make decisions. We need to stop making uninformed decisions and all learn as much about an issue as we can before acting, EVERYWHERE in life.
Ok, enough of the sermon. Let's get on with the basics...
Contemporary indian reservations have a pretty bad rep. They're hotbeds of extreme poverty. The poorest area in the nation, I believe, is the Pine Ridge Rez in South Dakota, for example. There are all sorts of other social problems like alcohol and drug issues and violence. Many indians are reliant on welfare.
So why are indians so determined to hold on to these reservations? Justice Black, of the Supreme Court summed it up best in Federal Power Commission v. Tuscarora Indian Nation - (362 u.s. 99, 142). He said...
"It may be hard for us to understand why these Indians cling so tenaciously to their lands and traditional tribal way of life. The record does not leave the impression that the lands of their reservation are the most fertile, the landscape the most beautiful or their homes the most splendid specimens of architecture. But this is their home -- their ancestral home. There, they, their children, and their forebears were born. They, too, have their memories and their loves. Some things are worth more than money and the costs of a new enterprise."
Should indian reservations and tribes be kept wholly separate from the rest of the country? That's a topic we're going to get into. And in a nutshell, the answer should vary for EVERY INDIAN, depending on not only circumstances, but their person. Indians should not have to live in poverty just because they choose to remain in a unified group. But how much should they mix with the non-indian world? And should they leave the rez when they become adults? Or should they stay? And how much should the US be giving to the tribes or reservations? How much control should they have over these reservations, especially if they are paying for them?
Lots of questions, people, but we have a shortage of answers. I'd love to hear your thoughts...
Well, here I am... this is the last section of the PREVIEW of everything to come - after this post, we're heading back to the beginning, and we're going to start with the Doctrine of Discovery, and then move on from there in more detail on everything.
Okay, the Assimilation of Indians.
Federal indian policy has always dealt with one core issue... whether and to what extent the US should permit/encourage/FORCE the assimilation of indians into the main society of the United States. Should we have reservations? Why or why not?
Obviously, there are a lot of reasons the US would love to see the indians assimilated, or blended into the mainstream; losing their special status and rights. For starters, the indian land and resources (like timber, minerals, the LAND they could be taxing) are pretty strong incentives.
A lot of non-indians who don't know much about the issue presume indians would benefit by leaving tribal life behind and sharing in the larger society. This mindset is kind of a spinoff of the same "we are better than them" mentality you're going to see in the next post about the doctrine of discovery. People who don't know any indians don't GET the reality of the situation, and that's one of the things I hope this blog can educate people on. It's so easy to tell another group of people to conform to your culture if you don't understand where they are "coming from" or what their life and values and culture are really about. And people who don't know squat about indians should probably not be making decisions regarding the future of indians... but on the other side, indians should probably not be telling everyone who is not full-blooded indian that they don't know what they are talking about and not hear what they have to say.
Both sides (or actually the many sides.. this is not an issue where people fall into ONLY camp 1 or camp 2, there are MANY different viewpoints and perspectives and mindsets and levels of experience and education) should listen to the other. That's all I am saying. I wish people would all hear each other out and THINK about what they learn before they make decisions. We need to stop making uninformed decisions and all learn as much about an issue as we can before acting, EVERYWHERE in life.
Ok, enough of the sermon. Let's get on with the basics...
Contemporary indian reservations have a pretty bad rep. They're hotbeds of extreme poverty. The poorest area in the nation, I believe, is the Pine Ridge Rez in South Dakota, for example. There are all sorts of other social problems like alcohol and drug issues and violence. Many indians are reliant on welfare.
So why are indians so determined to hold on to these reservations? Justice Black, of the Supreme Court summed it up best in Federal Power Commission v. Tuscarora Indian Nation - (362 u.s. 99, 142). He said...
"It may be hard for us to understand why these Indians cling so tenaciously to their lands and traditional tribal way of life. The record does not leave the impression that the lands of their reservation are the most fertile, the landscape the most beautiful or their homes the most splendid specimens of architecture. But this is their home -- their ancestral home. There, they, their children, and their forebears were born. They, too, have their memories and their loves. Some things are worth more than money and the costs of a new enterprise."
Should indian reservations and tribes be kept wholly separate from the rest of the country? That's a topic we're going to get into. And in a nutshell, the answer should vary for EVERY INDIAN, depending on not only circumstances, but their person. Indians should not have to live in poverty just because they choose to remain in a unified group. But how much should they mix with the non-indian world? And should they leave the rez when they become adults? Or should they stay? And how much should the US be giving to the tribes or reservations? How much control should they have over these reservations, especially if they are paying for them?
Lots of questions, people, but we have a shortage of answers. I'd love to hear your thoughts...
Wednesday, March 14, 2007
Clarification part 2
Ok, so my friend Joe replied to the clarification I posted a few days ago... here was what he wrote...
Yes I like that, that does explain and clarify some confusion about sovereignty, not only for non-natives, but natives as well. It is still crazy to me that a tribal person says "Hey that can't do that, we are a sovereign nation" well, yes, you are a soveriegn nation, but your soveriegnty is limited and over ruled by the US Government. In actuality, Indian Nations never signed any treaty giving up their soveriegnty, any part of their sovereignty, congress enacted laws that gave plenary power to the US. So in actuality we never gave up these rights as a seperate nation, but some will say that we gave up that right when we allowed the US to enact policy that gave Native Peoples citizenship in the US.
Close, but not quite, Joe. As I get into more depth in the next few posts, once I am through this damned background info (I am going through the textbook and with my professor outline so I figured I better stick to the order they put stuff in as I learn it or we're ALL gonna get confused) you'll see a much more detailed explanation than that.
True, indian nations are sovereign, or more accurately, "quasi-sovereign." The United States actually refers to tribes more along the lines of "domestic dependent nations" and generally refers to their "sovereignty" in many areas, but does not concede that the nations are complete, absolute sovereign nations.
Congress did decide that the US had plenary power over the tribes, but that was not when it all began. As you will see when I get into more depth, (I know I keep saying that but it's just to explain why I haven't hit it all yet) the US relies on the "doctrine of discovery" in dealing with the tribes. Basically, the logic there is "we discovered you savages, so we have control." Yes, the US had to recognize the tribes as sovereign nations in order to be able to legitimately make treaties with them, (if the US didn't see them as capable of giving permission, then what good is their permission gonna do for the person getting permission?) but then after that, the US sharply scaled back their powers based on "sovereignty."
Essentially, even before the "plenary powers" were enacted by congress, the US recognized the tribes as dependent nations, with limited scope to their sovereignty. We'll discuss this in the cases, starting with Johnson v. McIntosh and moving through a whole bunch of cases over the next few months... but the bottom line is, although the tribes "never gave up those rights", the US didn't see the tribes as HAVING those rights to give up in the first place. The INDIANS may have felt they had those powers, the US (and England before them) never recognized them to start with.
Ok, "some will say we gave up that right when we allowed the US to enact policy that gave native people citizenship in the US" but those people would be totally wrong. Although a handful of natives got citizenship for varying reasons earlier, when the US officially gave indians citizenship, there was already a looooong history of having determined and limited the extent of indian control over their separate nations, and congress had recognized this starting much, much earlier. The first Supreme Court cases delineating the extent of tribal sovereignty started in the early 1800's, and a century later, when the indians were officially granted citizenship as a group, plenary power and most of the issues concerning sovereignty had already been settled. So the indians, in effect, gave up nothing when the Citizenship was extended to them, at least nothing that hadn't already been taken away.
Anyone else have thoughts on this? Leave a comment here or email me.
Yes I like that, that does explain and clarify some confusion about sovereignty, not only for non-natives, but natives as well. It is still crazy to me that a tribal person says "Hey that can't do that, we are a sovereign nation" well, yes, you are a soveriegn nation, but your soveriegnty is limited and over ruled by the US Government. In actuality, Indian Nations never signed any treaty giving up their soveriegnty, any part of their sovereignty, congress enacted laws that gave plenary power to the US. So in actuality we never gave up these rights as a seperate nation, but some will say that we gave up that right when we allowed the US to enact policy that gave Native Peoples citizenship in the US.
Close, but not quite, Joe. As I get into more depth in the next few posts, once I am through this damned background info (I am going through the textbook and with my professor outline so I figured I better stick to the order they put stuff in as I learn it or we're ALL gonna get confused) you'll see a much more detailed explanation than that.
True, indian nations are sovereign, or more accurately, "quasi-sovereign." The United States actually refers to tribes more along the lines of "domestic dependent nations" and generally refers to their "sovereignty" in many areas, but does not concede that the nations are complete, absolute sovereign nations.
Congress did decide that the US had plenary power over the tribes, but that was not when it all began. As you will see when I get into more depth, (I know I keep saying that but it's just to explain why I haven't hit it all yet) the US relies on the "doctrine of discovery" in dealing with the tribes. Basically, the logic there is "we discovered you savages, so we have control." Yes, the US had to recognize the tribes as sovereign nations in order to be able to legitimately make treaties with them, (if the US didn't see them as capable of giving permission, then what good is their permission gonna do for the person getting permission?) but then after that, the US sharply scaled back their powers based on "sovereignty."
Essentially, even before the "plenary powers" were enacted by congress, the US recognized the tribes as dependent nations, with limited scope to their sovereignty. We'll discuss this in the cases, starting with Johnson v. McIntosh and moving through a whole bunch of cases over the next few months... but the bottom line is, although the tribes "never gave up those rights", the US didn't see the tribes as HAVING those rights to give up in the first place. The INDIANS may have felt they had those powers, the US (and England before them) never recognized them to start with.
Ok, "some will say we gave up that right when we allowed the US to enact policy that gave native people citizenship in the US" but those people would be totally wrong. Although a handful of natives got citizenship for varying reasons earlier, when the US officially gave indians citizenship, there was already a looooong history of having determined and limited the extent of indian control over their separate nations, and congress had recognized this starting much, much earlier. The first Supreme Court cases delineating the extent of tribal sovereignty started in the early 1800's, and a century later, when the indians were officially granted citizenship as a group, plenary power and most of the issues concerning sovereignty had already been settled. So the indians, in effect, gave up nothing when the Citizenship was extended to them, at least nothing that hadn't already been taken away.
Anyone else have thoughts on this? Leave a comment here or email me.
NDNs today - economic development overview
There is an emphasis these days on developing tribal financial activities that are not directly tied to federal support - a push, of sorts, to have indians take matters into their own hands and start making some money.
Indians have WON in litigation establishing tribal governmental powers and the right to tax, as well as winning the limitiation, in some areas, of the reach of state tax and regulatory laws in indian country. Indians are, basically, expanding both their sovereign and entrepreneurial fucntions.
Rapidly growing numbers of tribes are engaging in major business ventures - just look at the Seminole Hard Rock Casino in Florida (http://www.seminolehardrock.com/) Casinos are a major part of indian tribe economic development, but by no means are they they only method. Factories, plants, industrial parks, and more are bringing the money in.
In 2002, gambling revenues from tribal gaming generated about 14.5 BILLION dollars (yes, with a B)and a lot of tribes are "giving back," so to speak. The largest donation ever given to the Smithsonian Museum was from the Pequot Indians - 10 million bucks to help establish a National Museum of the American Indian. And under a memorandum of understanding (or a hostage agreement, if you prefer) the tribe contributes 25% of their revenue from slot machine operations to the state of Connecticut - which was over 160 million dollars to the state in fiscal year 2002 alone. That's a lot of smackers!
Economic development, which we are gonna get into in more depth later, is a major force in NDN law and policy and a great predictor for the future of indian people. As such, the job of indian governments to help expand this will be important: according to the textbook, "the Indian governments need to be able to operate with business skills, and they willneed to make decisions about overall economic development consistent with the goals and ambitions of their people - so a lot of it is planning for the future....Indian sovereignty is being redefined according to what an NDN nation can actually do. It is no longer limited to discussions about state v. NDN jurisdiction, but rather around material issues and strategies designated by the NDN population and carried out by increasingly able NDN entities. The social implications are enormous. If NDN nations have the power to make decisions about their future, they can choose educational paths which cause their languages, history, arts and culture to survive and can therefore perpetuate the very elements which define them as distinct peoples."
That was an important quote. Read it again. What is the bottom line? Considerations for what to do with indian resources and economic development are MUCH more complex than with normal business decisions. More is at stake. More is dependent on the outcome. Including, to some extent, the future of indian country.
Indians have WON in litigation establishing tribal governmental powers and the right to tax, as well as winning the limitiation, in some areas, of the reach of state tax and regulatory laws in indian country. Indians are, basically, expanding both their sovereign and entrepreneurial fucntions.
Rapidly growing numbers of tribes are engaging in major business ventures - just look at the Seminole Hard Rock Casino in Florida (http://www.seminolehardrock.com/) Casinos are a major part of indian tribe economic development, but by no means are they they only method. Factories, plants, industrial parks, and more are bringing the money in.
In 2002, gambling revenues from tribal gaming generated about 14.5 BILLION dollars (yes, with a B)and a lot of tribes are "giving back," so to speak. The largest donation ever given to the Smithsonian Museum was from the Pequot Indians - 10 million bucks to help establish a National Museum of the American Indian. And under a memorandum of understanding (or a hostage agreement, if you prefer) the tribe contributes 25% of their revenue from slot machine operations to the state of Connecticut - which was over 160 million dollars to the state in fiscal year 2002 alone. That's a lot of smackers!
Economic development, which we are gonna get into in more depth later, is a major force in NDN law and policy and a great predictor for the future of indian people. As such, the job of indian governments to help expand this will be important: according to the textbook, "the Indian governments need to be able to operate with business skills, and they willneed to make decisions about overall economic development consistent with the goals and ambitions of their people - so a lot of it is planning for the future....Indian sovereignty is being redefined according to what an NDN nation can actually do. It is no longer limited to discussions about state v. NDN jurisdiction, but rather around material issues and strategies designated by the NDN population and carried out by increasingly able NDN entities. The social implications are enormous. If NDN nations have the power to make decisions about their future, they can choose educational paths which cause their languages, history, arts and culture to survive and can therefore perpetuate the very elements which define them as distinct peoples."
That was an important quote. Read it again. What is the bottom line? Considerations for what to do with indian resources and economic development are MUCH more complex than with normal business decisions. More is at stake. More is dependent on the outcome. Including, to some extent, the future of indian country.
NDNs today - NDN land and resources
Wow... I just wrote out the most eloquent beautiful discussion of Indian land and resources... and I posted it to the wrong blog. So all my humor readers who like my other blog for it's silliness sure got a morningful of confusion. And I lost it when I realized my mistake and deleted it quick. So let's start over again.
Indian land and resources - Indians as a group may be "have nots" in many areas, even when compared to other minorities... but there are 2 main exceptions. Land and natural resources. As you are going to see later, a TON of NDN law deals with lands and resources and the jurisdiction over them i.e. who gets to sell it or use it.
According to the BIA figures released most lately, NDN tribes and individuals own about 55.7 million acres of land - an INCREASE of 3.8 million acres since 1980. This includes 45.7 million acres of tribal trust land and 10.1 million acres of tribal trust allotments still held by NDNs or their descendants.
A big reason the number is growing is because some of the tribes are getting financially stronger, particularly due to casino revenue, and are using some of that cash to buy back neighboring (often, ancestral) lands that were given away or treatied away long ago.
ONe group, for example, called the Native American Land Conservancy, is dedicated to buying and preserving land sacred to native americans. For more info, go to http://nalc4all.org/ to check them out.
In all, Native American groups own about 4.2 percent of the land in the US.
There are 2 different methods of ownership. Often a tribe will hold all land in trust, but in many cases, as we will discuss later, the land was partitioned off and sold in plots during the allotment era. This land is owned by the individual indian, and whether or not it is considered part of a reservation varies according to the situation. Again, more on that later. There is also land on some reservations that is owned in fee title (absolute ownership) by non-NDNs. So any given area can be a patchwork of reservation/trust land/individual allotments/land owned by non-indians on a rez.. and as you will see, figuring out who has jurisdiction over an area or who pays taxes or can be prosecuted by who for what crimes... all can hinge on what kind of land it is and who is involved.
In some rezes, non-indian land predominates - it is in the majority. For example, 46% of the land within the boundaries of the Swinomish Rez in Washington is owned by non-indians, and 20 percent of the Indian trust land (beyond that 46%) is leased to non-NDNs. The whites GREATLY outnumber the NDNs on that rez. Weird, huh?
The 5 states with the most Indian land are Arizona, with a combined total of 20,718,125 acres of land, New Mexico, with 8,438,954 acres of land, Montana, with about 5.5 million acres, South Dakota with about 5 million acres, and Washington, with 2.637 million acres.
Tribes usually have jurisdiction over indian country - which includes all land within the exterior boundaries of a rez, and as such, their jurisdiction may extend to an area miuch larger than the area actually in Indian ownership. Questions arise - and we will get to this later - about who handles problems occurring on a rez on land owned within that rez by a non-indian. Who do you think should have jurisdiction? the US feds, the state, or the rez.. if the land is within a rez but not owned by an indian or tribal member?
Ok, moving on... Tribes own about 6.3 million acres of commercial timber land - or about 1% of the nation's total. Tribes are increasingly taking over the management of their timber lands.
And another 43 million acres, or 77% of NDN land is classified as range land, a LOT of which has been majorly overgrazed by animals. IN addition, most of that has been leased to non-NDNs. There are another 3 million acres of "indian" agricultural land, and again, the most productive of this is leased to non-NDNs. Because they often got crappy deals in negotiating prices, the benefits given to the NDNs for this land have often been pretty skimpy.
Indians also have extensive rights to water across the nation, (the Winters Doctrine - more on this in a few posts) and the indian water rights are technically usually superior to those of everyone else, but the problem is in enforcing that and in getting the infrastructure together to actually GET the water to where they want it.
There are also a minority of tribes that hold land that is rich in resources (think minerals for mining, etc.) and they are just starting to really get into developing their subsurface mineral rights and take advantage of this. But even here, the problem is that the "royalties" non-indians pay for the right to mine are collected by the MMS - minerals management services - which is part of the Department of the Interior, and is distributed to tribes and individuals by the BIA. Indian mineral holders earned more than 185 million dollars in royalties from mineral revenues in 2000.
And indians also have pretty strong fish and wildlife resources, and several tribes are now starting to get into recreational development - i.e. skiing lodges, etc, and developing things like the walkway over the Grand Canyon. (http://news.yahoo.com/s/ap/20070308/ap_on_re_us/canyon_skywalk)
This sort of recreational development of all sorts is also going to be an important source of money for the indians in the future.
Ok, next time? We'll talk more about economic development, and then hit on the tricky overview of "assimilation of indians"... then on to the cool stuff - CASES!
Indian land and resources - Indians as a group may be "have nots" in many areas, even when compared to other minorities... but there are 2 main exceptions. Land and natural resources. As you are going to see later, a TON of NDN law deals with lands and resources and the jurisdiction over them i.e. who gets to sell it or use it.
According to the BIA figures released most lately, NDN tribes and individuals own about 55.7 million acres of land - an INCREASE of 3.8 million acres since 1980. This includes 45.7 million acres of tribal trust land and 10.1 million acres of tribal trust allotments still held by NDNs or their descendants.
A big reason the number is growing is because some of the tribes are getting financially stronger, particularly due to casino revenue, and are using some of that cash to buy back neighboring (often, ancestral) lands that were given away or treatied away long ago.
ONe group, for example, called the Native American Land Conservancy, is dedicated to buying and preserving land sacred to native americans. For more info, go to http://nalc4all.org/ to check them out.
In all, Native American groups own about 4.2 percent of the land in the US.
There are 2 different methods of ownership. Often a tribe will hold all land in trust, but in many cases, as we will discuss later, the land was partitioned off and sold in plots during the allotment era. This land is owned by the individual indian, and whether or not it is considered part of a reservation varies according to the situation. Again, more on that later. There is also land on some reservations that is owned in fee title (absolute ownership) by non-NDNs. So any given area can be a patchwork of reservation/trust land/individual allotments/land owned by non-indians on a rez.. and as you will see, figuring out who has jurisdiction over an area or who pays taxes or can be prosecuted by who for what crimes... all can hinge on what kind of land it is and who is involved.
In some rezes, non-indian land predominates - it is in the majority. For example, 46% of the land within the boundaries of the Swinomish Rez in Washington is owned by non-indians, and 20 percent of the Indian trust land (beyond that 46%) is leased to non-NDNs. The whites GREATLY outnumber the NDNs on that rez. Weird, huh?
The 5 states with the most Indian land are Arizona, with a combined total of 20,718,125 acres of land, New Mexico, with 8,438,954 acres of land, Montana, with about 5.5 million acres, South Dakota with about 5 million acres, and Washington, with 2.637 million acres.
Tribes usually have jurisdiction over indian country - which includes all land within the exterior boundaries of a rez, and as such, their jurisdiction may extend to an area miuch larger than the area actually in Indian ownership. Questions arise - and we will get to this later - about who handles problems occurring on a rez on land owned within that rez by a non-indian. Who do you think should have jurisdiction? the US feds, the state, or the rez.. if the land is within a rez but not owned by an indian or tribal member?
Ok, moving on... Tribes own about 6.3 million acres of commercial timber land - or about 1% of the nation's total. Tribes are increasingly taking over the management of their timber lands.
And another 43 million acres, or 77% of NDN land is classified as range land, a LOT of which has been majorly overgrazed by animals. IN addition, most of that has been leased to non-NDNs. There are another 3 million acres of "indian" agricultural land, and again, the most productive of this is leased to non-NDNs. Because they often got crappy deals in negotiating prices, the benefits given to the NDNs for this land have often been pretty skimpy.
Indians also have extensive rights to water across the nation, (the Winters Doctrine - more on this in a few posts) and the indian water rights are technically usually superior to those of everyone else, but the problem is in enforcing that and in getting the infrastructure together to actually GET the water to where they want it.
There are also a minority of tribes that hold land that is rich in resources (think minerals for mining, etc.) and they are just starting to really get into developing their subsurface mineral rights and take advantage of this. But even here, the problem is that the "royalties" non-indians pay for the right to mine are collected by the MMS - minerals management services - which is part of the Department of the Interior, and is distributed to tribes and individuals by the BIA. Indian mineral holders earned more than 185 million dollars in royalties from mineral revenues in 2000.
And indians also have pretty strong fish and wildlife resources, and several tribes are now starting to get into recreational development - i.e. skiing lodges, etc, and developing things like the walkway over the Grand Canyon. (http://news.yahoo.com/s/ap/20070308/ap_on_re_us/canyon_skywalk)
This sort of recreational development of all sorts is also going to be an important source of money for the indians in the future.
Ok, next time? We'll talk more about economic development, and then hit on the tricky overview of "assimilation of indians"... then on to the cool stuff - CASES!
Monday, March 12, 2007
American Indians Today - an overview - Education
Ever since the 1975 Indian Self-Determination and Education Assistance Act, the situation for education of indians has improved. And it has gotten even better, with more separate tribal control, with the 1978 Educational Amendments Act and the Tribally Controlled Schools Act of 1988.
It was in this year Clinton issued the first Executive Order on American NDN and Alaska Native education, in order to address educational concerns. IN 2001, the budget for Indian Education as 861 million dollars, the highest appropriation ever received to that date.
As of the 2000 census, there were 674,585 indian kids in preschool, kindergarten, elementary or high school. In 2003, less than 10 percent of those attended BIA schools, of which there were 185 schools on 63 rezes in 23 states.
IN 2002 the BIA funded 54 boarding schools, 7 of which were off-rez schools. 3 of these off-rez schools are tribally operated.
Under the Johnson-O'Malley act of 1934, the BIA provides funding to public school districts actoss the nation to meet the special needs of, so far, more than 271,000 indian kids in those schools.
A lot of new trends in NDN education policy have been implemented - there have been bilingual programs instituted, and curriculum has changed to include indian history and culture. Course materials look more at "rez life" and less at "dick and jane". More NDN teachers and aides have been hired. And tribal elders have been brought in as outside EXPERTS. These efforts are supposed to help reverse the negative self-image of NDN kids, and have made a mark not just in BIA schools but in "mainstream" schools as well.
Still quite a ways to go before we can say NDN kids are receiving quality education, but inroads are being made. A full THIRD of the BIA budget in recent years has gone to education.
According to this 2000 census, 11% of all natives over age 25 have completed undergrad or professional degrees - compared with almost 25% of the US population as a whole. Nongovernmental funding for NDN students has skyrocketed over the past few years.
College - in 1978 congress passed the Tribally controlled Community College Assistance act and the BIA now provides grants to tribes for 26 such institutions... a total of 38 million dollars in 2002. The BIA also operates 2 post-secondary schools - the Haskell NDN Junior College in Kansas, and the Southwestern NDN Polytechnic Institute in New Mexico.
Throughout history, failures in NDN education have been aggravated by the placement if NDN children in non-ndn foster homes or adoptive homes by private non-ndn orgs or state agencies. The idea was that kids would allegedly do better in non-NDN homes. A lot of these institutions overreacted, and there was a pattern of "abusive" child-removal procedures, taking kids from homes where they were really doing fine. Because of this problem, major legislation was introduced in the form of the Indian Child Welfare Act of 1978, which reconized primary jurisdiction over the matter belonged to tribal courts.... and there, there was no bias against perfectly good indian families.
Next time... NDN land and resources!
Again - if you have any comments or thoughts, email me at Taniquelle@gmail.com - like I said, right now I am getting through the preliminary info so we can get to the good stuff!
It was in this year Clinton issued the first Executive Order on American NDN and Alaska Native education, in order to address educational concerns. IN 2001, the budget for Indian Education as 861 million dollars, the highest appropriation ever received to that date.
As of the 2000 census, there were 674,585 indian kids in preschool, kindergarten, elementary or high school. In 2003, less than 10 percent of those attended BIA schools, of which there were 185 schools on 63 rezes in 23 states.
IN 2002 the BIA funded 54 boarding schools, 7 of which were off-rez schools. 3 of these off-rez schools are tribally operated.
Under the Johnson-O'Malley act of 1934, the BIA provides funding to public school districts actoss the nation to meet the special needs of, so far, more than 271,000 indian kids in those schools.
A lot of new trends in NDN education policy have been implemented - there have been bilingual programs instituted, and curriculum has changed to include indian history and culture. Course materials look more at "rez life" and less at "dick and jane". More NDN teachers and aides have been hired. And tribal elders have been brought in as outside EXPERTS. These efforts are supposed to help reverse the negative self-image of NDN kids, and have made a mark not just in BIA schools but in "mainstream" schools as well.
Still quite a ways to go before we can say NDN kids are receiving quality education, but inroads are being made. A full THIRD of the BIA budget in recent years has gone to education.
According to this 2000 census, 11% of all natives over age 25 have completed undergrad or professional degrees - compared with almost 25% of the US population as a whole. Nongovernmental funding for NDN students has skyrocketed over the past few years.
College - in 1978 congress passed the Tribally controlled Community College Assistance act and the BIA now provides grants to tribes for 26 such institutions... a total of 38 million dollars in 2002. The BIA also operates 2 post-secondary schools - the Haskell NDN Junior College in Kansas, and the Southwestern NDN Polytechnic Institute in New Mexico.
Throughout history, failures in NDN education have been aggravated by the placement if NDN children in non-ndn foster homes or adoptive homes by private non-ndn orgs or state agencies. The idea was that kids would allegedly do better in non-NDN homes. A lot of these institutions overreacted, and there was a pattern of "abusive" child-removal procedures, taking kids from homes where they were really doing fine. Because of this problem, major legislation was introduced in the form of the Indian Child Welfare Act of 1978, which reconized primary jurisdiction over the matter belonged to tribal courts.... and there, there was no bias against perfectly good indian families.
Next time... NDN land and resources!
Again - if you have any comments or thoughts, email me at Taniquelle@gmail.com - like I said, right now I am getting through the preliminary info so we can get to the good stuff!
Sunday, March 11, 2007
American Indians Today - an Overview - Economic conditions, Health Conditions
Economic conditions:
"American Indians are the most impoverished minority in the United States."
The BIA rez housing inventory for federally recognized tribes shows more than 157,000 existing housing units, but over a third of these were in substandard condition, and a full FIFTH of them lacked complete plumbing facilities. According to the BIA, more than 49,000 new units are needed - 2/3 for families still NEEDING housing, and the rest to replace the substandard housing that can't be renovated.
On the plus side, the numbers of indian businesspeople and indians in white-collar jobs is increasing, and many new jobs have been created with tribal governments. IN 1997, the survey of Minority-Owned Business Enterprises showed that Indian owned-businesses in the US totaled 197,300, generated 34.3 BILLION in revenues, and employed almost 300,000 people. This number of Indian (and Alaskan Native) owned firms was an 84 percent increase from 5 years earlier.
Health Conditions
The Formal Health Care service for indians is IHS - Indian Health Service. It's been around since 1955. 20 years later, the indian health care system got a statutory boost - with the 1975 Indian Self-Determination and Education Assistance Act. It gave tribes the option of managing IHS programs in their communities and gave them funding to do it.
IHS provides health services to rez indians AND some urban NDNs. In 2002 it served about 60 percent of the total Native population.
the general health of Natives americans has improved over the last 50 years, but a lot of the NDN population is still in poor health compared to the rest of the country. Life expectancy has increased to 69.4 years for men and 77.6 years for women. These are still WAY lower than the life expectancy for Americans of all races, though.
IN 2000, the birth rate for american NDNs was 16.8 per 1000, higher than the national average of 14.7. This is WAY down from the 26.6 per 1000 the NDNs had in 1991-3, though.
Cardiovascular disease is the leading cause of death for indians, just like it is for all other groups. But the mortality rates for other things is MUCH higher in the NDN population than in the general population. Like, 11.9 percent of the total indian deaths are from accidents. As compared to only 4 percent for whites. The total percentage of indians that die from diabetes-related issues is 5.4, as compared to only 2.7 percent of whites. Mortality rates for suicide, chronic liver disease and homicide are also much higher among the indian population.
Other health issues? The number of indians living with AIDS has more than doubled from 1993 to 2000, but the IHS also reports that the mortality rate from HIV infection is far below the rates for all races of Americans. In 2001, the IHS spent roughly 4 million dollars on AIDS educaton, prevention and treatment.
The problems with health care? IHS budgeting has not kept pace with health care costs. It's also hard to recruit doctors, because many non-NDN doctors see the reservations as unattractive assignments. Even though the number of indian doctors is mushrooming, IHS hospitals are always understaffed. Also, Urban Indians are only eligible for limited health services, and members of terminated and non-recognized tribes are not eligible for any health services through the IHS.
Next posting I will talk about Education. The reason I am going through all this informaton is to give everyone a snapshot of what's going on, so they can understand the problems TODAY as well as the historical issues. After I cover education, we'll discuss the current state of indian land and resources, development, and then assimilation of tribes. Then we'll hop back into the historical stuff in more detail as we start working through the first supreme court cases and the beginnings of the trail of Indian law. So stay tuned!
"American Indians are the most impoverished minority in the United States."
The BIA rez housing inventory for federally recognized tribes shows more than 157,000 existing housing units, but over a third of these were in substandard condition, and a full FIFTH of them lacked complete plumbing facilities. According to the BIA, more than 49,000 new units are needed - 2/3 for families still NEEDING housing, and the rest to replace the substandard housing that can't be renovated.
On the plus side, the numbers of indian businesspeople and indians in white-collar jobs is increasing, and many new jobs have been created with tribal governments. IN 1997, the survey of Minority-Owned Business Enterprises showed that Indian owned-businesses in the US totaled 197,300, generated 34.3 BILLION in revenues, and employed almost 300,000 people. This number of Indian (and Alaskan Native) owned firms was an 84 percent increase from 5 years earlier.
Health Conditions
The Formal Health Care service for indians is IHS - Indian Health Service. It's been around since 1955. 20 years later, the indian health care system got a statutory boost - with the 1975 Indian Self-Determination and Education Assistance Act. It gave tribes the option of managing IHS programs in their communities and gave them funding to do it.
IHS provides health services to rez indians AND some urban NDNs. In 2002 it served about 60 percent of the total Native population.
the general health of Natives americans has improved over the last 50 years, but a lot of the NDN population is still in poor health compared to the rest of the country. Life expectancy has increased to 69.4 years for men and 77.6 years for women. These are still WAY lower than the life expectancy for Americans of all races, though.
IN 2000, the birth rate for american NDNs was 16.8 per 1000, higher than the national average of 14.7. This is WAY down from the 26.6 per 1000 the NDNs had in 1991-3, though.
Cardiovascular disease is the leading cause of death for indians, just like it is for all other groups. But the mortality rates for other things is MUCH higher in the NDN population than in the general population. Like, 11.9 percent of the total indian deaths are from accidents. As compared to only 4 percent for whites. The total percentage of indians that die from diabetes-related issues is 5.4, as compared to only 2.7 percent of whites. Mortality rates for suicide, chronic liver disease and homicide are also much higher among the indian population.
Other health issues? The number of indians living with AIDS has more than doubled from 1993 to 2000, but the IHS also reports that the mortality rate from HIV infection is far below the rates for all races of Americans. In 2001, the IHS spent roughly 4 million dollars on AIDS educaton, prevention and treatment.
The problems with health care? IHS budgeting has not kept pace with health care costs. It's also hard to recruit doctors, because many non-NDN doctors see the reservations as unattractive assignments. Even though the number of indian doctors is mushrooming, IHS hospitals are always understaffed. Also, Urban Indians are only eligible for limited health services, and members of terminated and non-recognized tribes are not eligible for any health services through the IHS.
Next posting I will talk about Education. The reason I am going through all this informaton is to give everyone a snapshot of what's going on, so they can understand the problems TODAY as well as the historical issues. After I cover education, we'll discuss the current state of indian land and resources, development, and then assimilation of tribes. Then we'll hop back into the historical stuff in more detail as we start working through the first supreme court cases and the beginnings of the trail of Indian law. So stay tuned!
Friday, March 9, 2007
American Indians Today - An overview - Population
Let's look at the NDN population in the US.
Just because a tribe has a lot of land doesn't mean their population is equally sized. In the 2000 census, the biggest number of Americans identified themselves as Cherokee (Tsalagi) but this group lost most of it's ancestral land in the 1830's when they were moved (Trail of Tears, etc) to Oklahoma from the Eastern states. The 8th largest tribe, the Lumbee Tribe of North Carolina, has no rez at all, and is ineligible for BIA services.
There are 121 tribes with more than 1000 members.
The 5 largest tribes - the first number is the number of people who claim ONLY that blood, and the second number is the number of people claiming Native and at least one other race.
Cherokee - with 281,069/390,902
Navajo - with 269,202/ 19,491
Native Hawaiians - 140,652 - we only have that number for them
Sioux - 108,272/35,179
Chippewa - 105,907/38,635
Census data may be different from data collected by the tribal governments or the BIA, though, although it is probably close. The cool thing about the 2000 census was that for the first time, it allowed people to choose more than one race or tribe. So the numbers changed majorly from those in past years.
There are about 2.5 million people reported as indian, with another 1.6 million claiming NDN and at least one other race. So about 4.1 million, or 1.5 percent of the US population considers themselves at least part Native. And that number isn't even counting the Hawaiians.
The numbers are growing, too, because the birth rate among indians has been very high in recent years.
In all, there are more than 627,ooo people of NDN blood/descent in California, or 1.9 percent of the total California population. Oklahoma has almost 392,000, or 11.4 percent of the population.
10.5 percent of the New Mexico population claims native blood/descent, and 19 percent of Alaskans, 9 percent of South Dakotans, and 7.4 percent of Montanans are indian, or mixed indian.
About half, overall, of the NDN population lives on or right next to a rez. But a lot have moved out, too. 3.4 percent of the total NDN population lives in either New York or Los Angeles. Generally speaking, urban NDNs are outside the body of NDN law, which mostly handles tribal government, jurisdiction in NDN country, NDN lands and resources. But their status is no less important - "between two cultures" they raise a lot of issues about assimilation and policy towards ALL native peoples.
Just because a tribe has a lot of land doesn't mean their population is equally sized. In the 2000 census, the biggest number of Americans identified themselves as Cherokee (Tsalagi) but this group lost most of it's ancestral land in the 1830's when they were moved (Trail of Tears, etc) to Oklahoma from the Eastern states. The 8th largest tribe, the Lumbee Tribe of North Carolina, has no rez at all, and is ineligible for BIA services.
There are 121 tribes with more than 1000 members.
The 5 largest tribes - the first number is the number of people who claim ONLY that blood, and the second number is the number of people claiming Native and at least one other race.
Cherokee - with 281,069/390,902
Navajo - with 269,202/ 19,491
Native Hawaiians - 140,652 - we only have that number for them
Sioux - 108,272/35,179
Chippewa - 105,907/38,635
Census data may be different from data collected by the tribal governments or the BIA, though, although it is probably close. The cool thing about the 2000 census was that for the first time, it allowed people to choose more than one race or tribe. So the numbers changed majorly from those in past years.
There are about 2.5 million people reported as indian, with another 1.6 million claiming NDN and at least one other race. So about 4.1 million, or 1.5 percent of the US population considers themselves at least part Native. And that number isn't even counting the Hawaiians.
The numbers are growing, too, because the birth rate among indians has been very high in recent years.
In all, there are more than 627,ooo people of NDN blood/descent in California, or 1.9 percent of the total California population. Oklahoma has almost 392,000, or 11.4 percent of the population.
10.5 percent of the New Mexico population claims native blood/descent, and 19 percent of Alaskans, 9 percent of South Dakotans, and 7.4 percent of Montanans are indian, or mixed indian.
About half, overall, of the NDN population lives on or right next to a rez. But a lot have moved out, too. 3.4 percent of the total NDN population lives in either New York or Los Angeles. Generally speaking, urban NDNs are outside the body of NDN law, which mostly handles tribal government, jurisdiction in NDN country, NDN lands and resources. But their status is no less important - "between two cultures" they raise a lot of issues about assimilation and policy towards ALL native peoples.
American Indians Today - An overview - Part 1
Before we get too in-depth with the history and the laws and how they evolved, let's take a step back and look at a snapshot of NDNs today. It's not an easy task, because the indians are a hugely dynamic and varied group. There are landed and landless tribes, large and small tribes, eastern and western tribes, federally recognized and non-federally recognized, terminated tribes, rez and urban NDNs, traditional and assimilated peoples, and special situations with each different group of people and their legal relationship with the US. But there are certain things we can say.
1) NDN tribes and reservations
Tribalism is still a major force in indian culture and law, and NDNs often see themselves as members of their tribe first and as Indians second, according to my textbook. Most indian land is tribally owned, since the treaties were negotiated with the tribes, not the members. Congress views these tribes NOT as a racial minority but as a political entity, and because of this, the courts have justified special laws for NDNs in many situations and areas.
There are 562 federally recognized tribes, and 230 of those are village groups in Alaska. Altogether, there are 322 federally recognized NDN rezes. And the land holdings are really varied. The Navajo nation has more than 15 million acres in 3 states... an area that is actually bigger than any of the nine smallest states in the US. On the other hand, the smallest rez is less than 100 acres - (just over one square mile?) and a few small rezes have NO population at all!
The 5 largest tribes, by land holding, are the Navajo, the Tohono O'odham, the Pine Ridge, the Cheyenne River, and the San Carlos.
Not all indian tribes are federally recognized - in the 1950's, congress terminated more than 100 tribes, and has only reinstated a few since then. There are a bunch of tribes with no official ties (aka special recognition) by the feds, and they are seen as"non-federally recognized" - meaning they can't participate in BIA programs. They're essentially "invisible" tribes.
Right now, about 200 tribes are waiting for the BIA to federally recognize them, but the process is SLOOOOOW. Of the 250 groups who have petitioned since 1978 for federal recognition, 16 had been approved as of February 2004. 19 tribes were shot down, and nine were still waiting on FINAL BIA action. The rest were still trying to jump through the hoops and prepare all the documentation and evidence the BIA was asking for. Because it's taking so long, several tribes are suing the feds, trying to get them to speed up the process.
1) NDN tribes and reservations
Tribalism is still a major force in indian culture and law, and NDNs often see themselves as members of their tribe first and as Indians second, according to my textbook. Most indian land is tribally owned, since the treaties were negotiated with the tribes, not the members. Congress views these tribes NOT as a racial minority but as a political entity, and because of this, the courts have justified special laws for NDNs in many situations and areas.
There are 562 federally recognized tribes, and 230 of those are village groups in Alaska. Altogether, there are 322 federally recognized NDN rezes. And the land holdings are really varied. The Navajo nation has more than 15 million acres in 3 states... an area that is actually bigger than any of the nine smallest states in the US. On the other hand, the smallest rez is less than 100 acres - (just over one square mile?) and a few small rezes have NO population at all!
The 5 largest tribes, by land holding, are the Navajo, the Tohono O'odham, the Pine Ridge, the Cheyenne River, and the San Carlos.
Not all indian tribes are federally recognized - in the 1950's, congress terminated more than 100 tribes, and has only reinstated a few since then. There are a bunch of tribes with no official ties (aka special recognition) by the feds, and they are seen as"non-federally recognized" - meaning they can't participate in BIA programs. They're essentially "invisible" tribes.
Right now, about 200 tribes are waiting for the BIA to federally recognize them, but the process is SLOOOOOW. Of the 250 groups who have petitioned since 1978 for federal recognition, 16 had been approved as of February 2004. 19 tribes were shot down, and nine were still waiting on FINAL BIA action. The rest were still trying to jump through the hoops and prepare all the documentation and evidence the BIA was asking for. Because it's taking so long, several tribes are suing the feds, trying to get them to speed up the process.
Thursday, March 8, 2007
small interjection.
My favorite reader and friend Joe sent along a suggestion for clarification here... I'll put his comment and then I will add to it...
"try to explain tribal soveriegnty a little better, or the difference between soveriegn and tribal sovereign. I think people should know that the treaties that were signed were with sovereign nations, and it wasn't until later that the term "tribal sovereignty" came about, in an effective attempt to limit the powers of the tribes."
Joe's right. When the settlers came over, and they did want to settle, they had to come up with a way of coming to some sort of agreement with the indians. So they treated them as "sovereigns" - meaning they had the power, as an independent nation, to sign treaties and would be expected to uphold their end of the bargain under them.
But, as I will get into later when I discuss the "doctrine of discovery" (BOOOOOO!) the settlers didn't quite see the indians as equals. So while they saw them as sovereign - meaning independent and separate nations - when they needed them to fill that role; they kind of fudged for a while on how to tweak their definition of "sovereign" to fit their needs.
When all the dust settled, the US government had their "epiphany". The tribes would be PART of the United States, and that the government would have a relationship with them like a trustee relationship, meaning the US would be responsible for "protecting" them.
So TRIBAL sovereignty meant that yes, you are still a sovereign, but our sovereign (the united states) is bigger than your sovereign and your sovereign is a small part of the US and tribal sovereignty takes a different form. So while the tribes may be considered independent, and separate, they are sovereign at the pleasure of the US government, and subject to all sorts of rules and catches, which you will see later. Johnson v McIntosh and the Cherokee cases, which we will get into soon, will explain this better.
How's that, Joe? :o)
"try to explain tribal soveriegnty a little better, or the difference between soveriegn and tribal sovereign. I think people should know that the treaties that were signed were with sovereign nations, and it wasn't until later that the term "tribal sovereignty" came about, in an effective attempt to limit the powers of the tribes."
Joe's right. When the settlers came over, and they did want to settle, they had to come up with a way of coming to some sort of agreement with the indians. So they treated them as "sovereigns" - meaning they had the power, as an independent nation, to sign treaties and would be expected to uphold their end of the bargain under them.
But, as I will get into later when I discuss the "doctrine of discovery" (BOOOOOO!) the settlers didn't quite see the indians as equals. So while they saw them as sovereign - meaning independent and separate nations - when they needed them to fill that role; they kind of fudged for a while on how to tweak their definition of "sovereign" to fit their needs.
When all the dust settled, the US government had their "epiphany". The tribes would be PART of the United States, and that the government would have a relationship with them like a trustee relationship, meaning the US would be responsible for "protecting" them.
So TRIBAL sovereignty meant that yes, you are still a sovereign, but our sovereign (the united states) is bigger than your sovereign and your sovereign is a small part of the US and tribal sovereignty takes a different form. So while the tribes may be considered independent, and separate, they are sovereign at the pleasure of the US government, and subject to all sorts of rules and catches, which you will see later. Johnson v McIntosh and the Cherokee cases, which we will get into soon, will explain this better.
How's that, Joe? :o)
Tuesday, March 6, 2007
A brief rundown of the three basic parts of NDN law
Tribal sovereignty and NDN property rights
Obviously, before the settlers came to what is now the United States, the tribes ruled themselves and lived as they saw fit to live. But once the settlers came, things changed.
The settlers realized pretty quickly that they had 2 options - they could fight the indians, or they could try to work with the indians in order to settle in the area. In the earliest days, the settlers were just shiploads of people, and they realized they had enough on their plates just trying to survive without having to worry about a bunch of pissed-off indians. So a lot of the earliest dealings with the indians involved making deals with the indians... about who could live where and so on.
Part of the settlers' mindset was that it was their god-given duty to teach these indians about god, and to "tame" or to "civilize" them. As such, they did not view the indians as equals, but, often, as savages. The settlers sort of felt that they had "discovered" the new world because they were the first "civilized" people to reach these shores, and so they just plain didn't see that the indians had been "discovering" this land for thousands of years before them.
But they couldn't see them as total savages. In order to make peaceful agreements with the indians, they had to at least recognize them as "sovereigns" - and they had to negotiate with their representatives.
Because to their way of thinking, if they didn't treat the indians as capable of negotiating and treatymaking, then any agreements they made with the indians were not going to be recognized as valid.
You can't say "but they gave this land to us" if you don't recognize them as having that power, right?
Anyhow, following the methods of colonization, once they had acquired title or possession of land from the Indians, they saw this title of land as "good against the claims of other European Powers." See, it wasn't just one group of people out there trying to colonize and claim America, it was many. Several European countries were all in competition to explore and discover and claim new lands - and according to protocol in Europe, if the English settlers made a treaty with a tribe that gave them land, the Spanish couldn't come in and make a deal with the indians for that same land because the English already had it.
In this way, the different groups of people coming over for Europe were able to make some pretty big land grabs, in part by offering to protect the indians from the OTHER groups of colonizers that were coming over, from other countries.
We'll get into the history more later, but let's suffice to say that by the time the dust settled and the English had claimed most of the US, and then the US had then declared itself independent of Britain and become it's own nation, treatymaking was a fairly commonly used tool to make deals with the indians, and they were respected as having the power to make treaties.
But just because they had the power to make treaties giving land to the settlers in exchange for peace and money and protection and goods, didn't mean they had the full "title" to the land. Instead, the colonists viewed them as having a "right of occupancy" - since they were, after all, to the settler's way of thinking... "savages" and therefore not equal human beings. The settlers figured that since they had "discovered" America, THEY held the real ownership of the land, but that the treaties were a great tool for getting the Indians to help them peacefully get control over it.
At any rate, by the time we adopted the Constitution, treaties were pretty common. And now, the relationship of the indians to the government is not seen as equal governments with equal powers to make agreements, but rather, the US sees that tribes are "dependent domestic nations" - meaning they rely on the US for protection.
And the US used these treaties to move the indians, a little bit at a time, out of lands they wanted to settle, and as they would create and re-negotiate new treaties, they would end up with the indians giving more and more of their land up, and would push the indians further and further out west so the settlers could settle the Eastern part of the US.
But the problem with this was... as soon as the east was settled, the colonists realized they wanted the west, too. A lot of shuffling was done, and a lot of reservations were created,and a lot of warring happened while all this was going on. But one of the main ways by which the government was able to make the indians move was by agreeing in treaties to give them certain areas of land (and sometimes they offered protection and money and food and other things) in exchange for their giving up other chunks of land.
The US still respects the treaties, generally, that were created during the early years. The treaties promising lands to the indians "in perpetuity" are still enforceable, and the US still respects some sovereign rights of the indians. Part of the agreements made back then was that indians could still retain control of their tribes, and could still rule them as they wanted. And to some extent, those powers remain in force today, although subject to certain limitations. And the federal government still sees themselves as having the ultimate control over the WHOLE US, meaning that they have "plenary" or complete power to change or get rid of the treaties or to do whatever they choose with the indians.
Still, the rights the Indians have kept can be important, as you will see later. They retained a lot of hunting and fishing rights - both on and off the reservations, and they have kept special water rights, which can be important in the western states where water is hard to come by. And Congress has generally respected their rights to rule their separate nations within the US borders. This rule of self-government is important and will come up a lot later.
Federal Power and Obligations
These agreements with tribes, and the treaties, and 200 years of special legislation for the indians has created a very unique relationship between the Indians and the US government.
For starters, the federal government pre-empts states when it comes to control of the tribes. They don't deal with the states so much, they have to come to the feds. Also, the government realizes that because of their history, they have a special obligation to treat the indians right, and to take care of them.
One of the first things the US government did was pass a Trade and Intercourse Act - what this did was protect, in some ways, Indian land. The Act said that the feds had to be a participant in any trade or sale of indian land - meaning they had to give their approval. This may seem a little controlling, but if you think about it, there were a lot of shady settlers back in the 1700s and 1800s who would go out and try to trick or cheat the indians out of lands the government had promised them. And if the indians fell on hard times, they might have felt forced to give up some of the land that was still "theirs" in order to get food or supplies for survival. So with this new rule in place, indian land was protected from sketchy pioneers who wanted to try to outsmart the indians and get their land for a good deal. With the government requiring that they give approval for land sales and trades, they could make sure that everything was on the up-and-up. And if someone DID go in and buy indian land, the government could invalidate that agreement, so the purchaser ended up with nothing, and the land was given back to the indians.
The government has also recognized it's obligations to the indians in other ways, through special programs. Lots of these programs relate to protecting and developing NDN lands, assisting the tribal governments, and in creating special assistance programs to address educational and health needs of indians. And indians are one of the very few groups that can end-run certain equal-rights provisions of the US Constitution and actually have hiring preferences for indians in the BIA and Indian Health services - in most other areas, specifically preferring to hire someone based on their race is illegal. The government sees these special obligations to the indians as just part of fulfilling this "special trust relationship" between the indians and the federal government.
Keep in mind, though, that Congress still has reserved the right to ultimate power over indians. And Congress has reserved the right to abrogate, or cancel, treaties at any time, with or without the consent of the indians. They can kill the indian title to the land, and they can even end the "special relationship" they currently recognize as existing between indians and the feds. They probably won't, because they have been pretty good about showing respect over the history of the country in regards to their obligations, and because that would be a political nightmare for everyone involved, but they DO reserve that right over all. The extent of their power is only checked by the second arm of the government - the US supreme court, which has said it will review any actions that congress takes that challenge the indian's rights to land or self government or anything else for that matter.
Jurisdiction over the rez
This is the third big issue/area of indian law. Under the tenth amendment to the constitution, states have police power, but this is really scaled back in indian country. The feds exclude most state jurisdiction on the reservations, and let the indians deal directly with them.
As such, most state laws that deal with things like zoning, the environment, domestic issues and child welfare, don't extend to indians in indian country.
Don't let this fool you, though. Sometimes, states don't just accept this assertion of tribal immunity, and a lot of the case law we'll get into later deals with the states trying to assert power in a reservation.
But this area of indian law is a hotly debated one. Federal courts have held that certain rights reserved to the NDNs in treaties, such as the right to harvest up to 50% of the salmon and steelhead in some of the nations largest fisheries, even if they are not part of the reservation, are still intact. And there are issues with off-reservation fishing and hunting rights that still exist today because they were promised in a treaty. And of course, there are the state taxation laws... these cause lots of issues between states and reservations.
The bottom line is... because of the three different sets of laws - federal law, state law and tribal law, it can get confusing to try and figure out who has the authority to make or enforce laws on and off the rez, for indians and non-indians alike. Sometimes, jurisdiction over someone who commits a crime depends on whether they are indian or non, and whether they were on or off the rez when it happened. In some cases, courts have even held that where tribal interests are not affected, state laws CAN be enforced in indian country.
So we'll get more into that later. But these three areas of NDN law are the main ones, and I am going to look at each one in MUCH more depth as I go along.
Again, feel free to ask any questions, or to leave me any comments or feedback - either here on the blog or by emailing me at Taniquelle@gmail.com. I want to make sure this is as accurate and clear as possible, and I want to leave it open so that people can feel free to discuss issues on here as much as they want.
The next post will be up soon, and it's going to deal with an overview of American Indians today - where they stand and what the scene looks like.
Obviously, before the settlers came to what is now the United States, the tribes ruled themselves and lived as they saw fit to live. But once the settlers came, things changed.
The settlers realized pretty quickly that they had 2 options - they could fight the indians, or they could try to work with the indians in order to settle in the area. In the earliest days, the settlers were just shiploads of people, and they realized they had enough on their plates just trying to survive without having to worry about a bunch of pissed-off indians. So a lot of the earliest dealings with the indians involved making deals with the indians... about who could live where and so on.
Part of the settlers' mindset was that it was their god-given duty to teach these indians about god, and to "tame" or to "civilize" them. As such, they did not view the indians as equals, but, often, as savages. The settlers sort of felt that they had "discovered" the new world because they were the first "civilized" people to reach these shores, and so they just plain didn't see that the indians had been "discovering" this land for thousands of years before them.
But they couldn't see them as total savages. In order to make peaceful agreements with the indians, they had to at least recognize them as "sovereigns" - and they had to negotiate with their representatives.
Because to their way of thinking, if they didn't treat the indians as capable of negotiating and treatymaking, then any agreements they made with the indians were not going to be recognized as valid.
You can't say "but they gave this land to us" if you don't recognize them as having that power, right?
Anyhow, following the methods of colonization, once they had acquired title or possession of land from the Indians, they saw this title of land as "good against the claims of other European Powers." See, it wasn't just one group of people out there trying to colonize and claim America, it was many. Several European countries were all in competition to explore and discover and claim new lands - and according to protocol in Europe, if the English settlers made a treaty with a tribe that gave them land, the Spanish couldn't come in and make a deal with the indians for that same land because the English already had it.
In this way, the different groups of people coming over for Europe were able to make some pretty big land grabs, in part by offering to protect the indians from the OTHER groups of colonizers that were coming over, from other countries.
We'll get into the history more later, but let's suffice to say that by the time the dust settled and the English had claimed most of the US, and then the US had then declared itself independent of Britain and become it's own nation, treatymaking was a fairly commonly used tool to make deals with the indians, and they were respected as having the power to make treaties.
But just because they had the power to make treaties giving land to the settlers in exchange for peace and money and protection and goods, didn't mean they had the full "title" to the land. Instead, the colonists viewed them as having a "right of occupancy" - since they were, after all, to the settler's way of thinking... "savages" and therefore not equal human beings. The settlers figured that since they had "discovered" America, THEY held the real ownership of the land, but that the treaties were a great tool for getting the Indians to help them peacefully get control over it.
At any rate, by the time we adopted the Constitution, treaties were pretty common. And now, the relationship of the indians to the government is not seen as equal governments with equal powers to make agreements, but rather, the US sees that tribes are "dependent domestic nations" - meaning they rely on the US for protection.
And the US used these treaties to move the indians, a little bit at a time, out of lands they wanted to settle, and as they would create and re-negotiate new treaties, they would end up with the indians giving more and more of their land up, and would push the indians further and further out west so the settlers could settle the Eastern part of the US.
But the problem with this was... as soon as the east was settled, the colonists realized they wanted the west, too. A lot of shuffling was done, and a lot of reservations were created,and a lot of warring happened while all this was going on. But one of the main ways by which the government was able to make the indians move was by agreeing in treaties to give them certain areas of land (and sometimes they offered protection and money and food and other things) in exchange for their giving up other chunks of land.
The US still respects the treaties, generally, that were created during the early years. The treaties promising lands to the indians "in perpetuity" are still enforceable, and the US still respects some sovereign rights of the indians. Part of the agreements made back then was that indians could still retain control of their tribes, and could still rule them as they wanted. And to some extent, those powers remain in force today, although subject to certain limitations. And the federal government still sees themselves as having the ultimate control over the WHOLE US, meaning that they have "plenary" or complete power to change or get rid of the treaties or to do whatever they choose with the indians.
Still, the rights the Indians have kept can be important, as you will see later. They retained a lot of hunting and fishing rights - both on and off the reservations, and they have kept special water rights, which can be important in the western states where water is hard to come by. And Congress has generally respected their rights to rule their separate nations within the US borders. This rule of self-government is important and will come up a lot later.
Federal Power and Obligations
These agreements with tribes, and the treaties, and 200 years of special legislation for the indians has created a very unique relationship between the Indians and the US government.
For starters, the federal government pre-empts states when it comes to control of the tribes. They don't deal with the states so much, they have to come to the feds. Also, the government realizes that because of their history, they have a special obligation to treat the indians right, and to take care of them.
One of the first things the US government did was pass a Trade and Intercourse Act - what this did was protect, in some ways, Indian land. The Act said that the feds had to be a participant in any trade or sale of indian land - meaning they had to give their approval. This may seem a little controlling, but if you think about it, there were a lot of shady settlers back in the 1700s and 1800s who would go out and try to trick or cheat the indians out of lands the government had promised them. And if the indians fell on hard times, they might have felt forced to give up some of the land that was still "theirs" in order to get food or supplies for survival. So with this new rule in place, indian land was protected from sketchy pioneers who wanted to try to outsmart the indians and get their land for a good deal. With the government requiring that they give approval for land sales and trades, they could make sure that everything was on the up-and-up. And if someone DID go in and buy indian land, the government could invalidate that agreement, so the purchaser ended up with nothing, and the land was given back to the indians.
The government has also recognized it's obligations to the indians in other ways, through special programs. Lots of these programs relate to protecting and developing NDN lands, assisting the tribal governments, and in creating special assistance programs to address educational and health needs of indians. And indians are one of the very few groups that can end-run certain equal-rights provisions of the US Constitution and actually have hiring preferences for indians in the BIA and Indian Health services - in most other areas, specifically preferring to hire someone based on their race is illegal. The government sees these special obligations to the indians as just part of fulfilling this "special trust relationship" between the indians and the federal government.
Keep in mind, though, that Congress still has reserved the right to ultimate power over indians. And Congress has reserved the right to abrogate, or cancel, treaties at any time, with or without the consent of the indians. They can kill the indian title to the land, and they can even end the "special relationship" they currently recognize as existing between indians and the feds. They probably won't, because they have been pretty good about showing respect over the history of the country in regards to their obligations, and because that would be a political nightmare for everyone involved, but they DO reserve that right over all. The extent of their power is only checked by the second arm of the government - the US supreme court, which has said it will review any actions that congress takes that challenge the indian's rights to land or self government or anything else for that matter.
Jurisdiction over the rez
This is the third big issue/area of indian law. Under the tenth amendment to the constitution, states have police power, but this is really scaled back in indian country. The feds exclude most state jurisdiction on the reservations, and let the indians deal directly with them.
As such, most state laws that deal with things like zoning, the environment, domestic issues and child welfare, don't extend to indians in indian country.
Don't let this fool you, though. Sometimes, states don't just accept this assertion of tribal immunity, and a lot of the case law we'll get into later deals with the states trying to assert power in a reservation.
But this area of indian law is a hotly debated one. Federal courts have held that certain rights reserved to the NDNs in treaties, such as the right to harvest up to 50% of the salmon and steelhead in some of the nations largest fisheries, even if they are not part of the reservation, are still intact. And there are issues with off-reservation fishing and hunting rights that still exist today because they were promised in a treaty. And of course, there are the state taxation laws... these cause lots of issues between states and reservations.
The bottom line is... because of the three different sets of laws - federal law, state law and tribal law, it can get confusing to try and figure out who has the authority to make or enforce laws on and off the rez, for indians and non-indians alike. Sometimes, jurisdiction over someone who commits a crime depends on whether they are indian or non, and whether they were on or off the rez when it happened. In some cases, courts have even held that where tribal interests are not affected, state laws CAN be enforced in indian country.
So we'll get more into that later. But these three areas of NDN law are the main ones, and I am going to look at each one in MUCH more depth as I go along.
Again, feel free to ask any questions, or to leave me any comments or feedback - either here on the blog or by emailing me at Taniquelle@gmail.com. I want to make sure this is as accurate and clear as possible, and I want to leave it open so that people can feel free to discuss issues on here as much as they want.
The next post will be up soon, and it's going to deal with an overview of American Indians today - where they stand and what the scene looks like.
Monday, March 5, 2007
Introduction... where did NDN law come from?
The field of federal Indian law is a distinct body of law that regulates the legal relationships between NDN tribes and the United States. Now, the way things are set up, the tribes deal in large part with the federal government, which means the states have a limited reach in their control over tribes.
Tribal law, which governs most tribes (usually found today in tribal constitutions and codes) is based in custom and tradition as the tribal courts interpret it, as well as being based on US and state laws. Tribal law affects and is affected by federal indian law.
It has become more and more common for federal and state courts to enforce tribal law under constitutional principles- for example, the "full faith and credit" clause of the constitution, or the doctrine of "comity" - basically, the feds and the state courts respect the tribes just like they would respect and honor the laws of sister states. And Congress has lately been passing special legislation that gives legal recognition to tribal law and jurisdictional authority within the US legal system. So the US is coming more and more to respect tribal authority.
What makes up federal Indian law? Lots of things. Much of the way the US has decided to deal with indians has come from thousands of cases that have wound their way through the courts. In the US legal system, when a case is decided by a judge, it can be appealed (challenged,) if there are reasonable grounds, and if not, then that decision stands as "precedent" - meaning that if similar cases come up in the future, generally speaking, other judges in that district or state or area are usually expected to respect that precedent and follow it, unless a higher court overrules that lower court. And if a different court in a different district or state, which is not part of that same judicial circle, has a similar case, they tend to look at how the issue was handled in other states or districts. If two different districts rule on things in different ways, it usually gets tossed up to the supreme law of the land, the United States Supreme court.
I know, this is heavy stuff, but bear with me, I just want to make sure you have the background so you can understand some of what happens later. It gets really interesting in some of these cases, and it can get hard to try to explain it all in layman's terms to people who haven't studied other areas of law like constitutional law or who don't get how the courts work. So I will try to explain the basics as simply as I can.
Anyhow, the Supreme Court is pretty big because they are charged with interpreting the Constitution, and with interpreting the laws Congress makes. So they get to ultimately decide how major issues will turn out - and this can have MAJOR effects on indian law. The interesting thing to watch is how some of these judges rule on stuff. I will get into some of the major cases in a bit, and while I am not going to punish you by making you choke down pages of legal mumbo-jumbo that make up their opinions, I will try to boil down the essence of what their opinions say. And trust me, some of these judges - on every level - federal, district, and state - are interesting characters. Some of them are very respectful of native rights, and you can tell that from the way they explain how they reached their decision. And some of them are weenies. You'll see that, too.
In addition to the cases creating the body of NDN law, there are other materials that are important. The US has separate volumes of the United States Code, and the Code of Federal Regulations, and there are some 380 treaties still in effect, and there have been hundreds of "opinions" published by the Solicitor of the Department of the Interior - which are read and generally respected by lawmakers and decisionmakers. In addition, there have been lots and lots of law review articles - these are articles written by law students and professors, each tackling a specific topic and researching the hell out of it, trying to make arguments as to how things should be interpreted or explaining why certain things are the way they are.
So there is a TON of information out there - some of it "codified" (made into law) and some of it based on history, and some of it based on official reports or scholars who are interested in making change. And all of that boiled down gives us... this blog. Just kidding, it gives us Federal Indian Law. And I am going to try to explain as much of it as I can to you guys as I go.
The main things to remember here is that with this massive amount of information that composes NDN law, it affects more than just the interests and rights of NDNs. And, as you are going to quickly see, NDNs are subjected to way more legal regulation of their rights than anyone else is.
Indian law is really interesting for a handful of reasons. First, it seems that the government, every so often, gets bored and decides to shake up their policies on how to view and treat the NDNs. And these policy shifts can get confusing. It can make you think that things are always in a state of turbulence with regards to indian law. But then on the other hand, treaties signed more than 200 years ago are still respected and given legal force today. So basically, some elements of NDN law are always shifting, and some elements of NDN law have been rock-solid and IN PLACE LONGER THAN THE UNITED STATES HAS EVEN EXISTED.
Add to this the fact that Congress sometimes creates new laws to implement changed policy without getting RID of older laws that addressed a different policy, and the fact that some tribes are singled out for special legislation because of treaty provisions or because of where they are located, and it can make for some confusing studying. But I hope to be able to untangle the web of confusion here and make it easier for everyone to understand. A lot of themes are common throughout NDN law, and I am going to try to tackle those themes.
:o)
In my next post, I am going to give a brief rundown of the three central sets of concerns:
Tribal sovereignty and NDN property rights
Federal Power and Obligations
Jurisdiction over the rez.
So stay tuned. Once we do a sketch of these three basic sets of concerns that the laws are focused on, I will get into the cool stuff...
Tribal law, which governs most tribes (usually found today in tribal constitutions and codes) is based in custom and tradition as the tribal courts interpret it, as well as being based on US and state laws. Tribal law affects and is affected by federal indian law.
It has become more and more common for federal and state courts to enforce tribal law under constitutional principles- for example, the "full faith and credit" clause of the constitution, or the doctrine of "comity" - basically, the feds and the state courts respect the tribes just like they would respect and honor the laws of sister states. And Congress has lately been passing special legislation that gives legal recognition to tribal law and jurisdictional authority within the US legal system. So the US is coming more and more to respect tribal authority.
What makes up federal Indian law? Lots of things. Much of the way the US has decided to deal with indians has come from thousands of cases that have wound their way through the courts. In the US legal system, when a case is decided by a judge, it can be appealed (challenged,) if there are reasonable grounds, and if not, then that decision stands as "precedent" - meaning that if similar cases come up in the future, generally speaking, other judges in that district or state or area are usually expected to respect that precedent and follow it, unless a higher court overrules that lower court. And if a different court in a different district or state, which is not part of that same judicial circle, has a similar case, they tend to look at how the issue was handled in other states or districts. If two different districts rule on things in different ways, it usually gets tossed up to the supreme law of the land, the United States Supreme court.
I know, this is heavy stuff, but bear with me, I just want to make sure you have the background so you can understand some of what happens later. It gets really interesting in some of these cases, and it can get hard to try to explain it all in layman's terms to people who haven't studied other areas of law like constitutional law or who don't get how the courts work. So I will try to explain the basics as simply as I can.
Anyhow, the Supreme Court is pretty big because they are charged with interpreting the Constitution, and with interpreting the laws Congress makes. So they get to ultimately decide how major issues will turn out - and this can have MAJOR effects on indian law. The interesting thing to watch is how some of these judges rule on stuff. I will get into some of the major cases in a bit, and while I am not going to punish you by making you choke down pages of legal mumbo-jumbo that make up their opinions, I will try to boil down the essence of what their opinions say. And trust me, some of these judges - on every level - federal, district, and state - are interesting characters. Some of them are very respectful of native rights, and you can tell that from the way they explain how they reached their decision. And some of them are weenies. You'll see that, too.
In addition to the cases creating the body of NDN law, there are other materials that are important. The US has separate volumes of the United States Code, and the Code of Federal Regulations, and there are some 380 treaties still in effect, and there have been hundreds of "opinions" published by the Solicitor of the Department of the Interior - which are read and generally respected by lawmakers and decisionmakers. In addition, there have been lots and lots of law review articles - these are articles written by law students and professors, each tackling a specific topic and researching the hell out of it, trying to make arguments as to how things should be interpreted or explaining why certain things are the way they are.
So there is a TON of information out there - some of it "codified" (made into law) and some of it based on history, and some of it based on official reports or scholars who are interested in making change. And all of that boiled down gives us... this blog. Just kidding, it gives us Federal Indian Law. And I am going to try to explain as much of it as I can to you guys as I go.
The main things to remember here is that with this massive amount of information that composes NDN law, it affects more than just the interests and rights of NDNs. And, as you are going to quickly see, NDNs are subjected to way more legal regulation of their rights than anyone else is.
Indian law is really interesting for a handful of reasons. First, it seems that the government, every so often, gets bored and decides to shake up their policies on how to view and treat the NDNs. And these policy shifts can get confusing. It can make you think that things are always in a state of turbulence with regards to indian law. But then on the other hand, treaties signed more than 200 years ago are still respected and given legal force today. So basically, some elements of NDN law are always shifting, and some elements of NDN law have been rock-solid and IN PLACE LONGER THAN THE UNITED STATES HAS EVEN EXISTED.
Add to this the fact that Congress sometimes creates new laws to implement changed policy without getting RID of older laws that addressed a different policy, and the fact that some tribes are singled out for special legislation because of treaty provisions or because of where they are located, and it can make for some confusing studying. But I hope to be able to untangle the web of confusion here and make it easier for everyone to understand. A lot of themes are common throughout NDN law, and I am going to try to tackle those themes.
:o)
In my next post, I am going to give a brief rundown of the three central sets of concerns:
Tribal sovereignty and NDN property rights
Federal Power and Obligations
Jurisdiction over the rez.
So stay tuned. Once we do a sketch of these three basic sets of concerns that the laws are focused on, I will get into the cool stuff...
Welcome to my blog!
HAHAHA! I guess now I really have to get this project underway and stick with it - I have friends like Joe P. linking to this site off their Myspace page.
Hi, everyone, my name is Tani, and I am a 3rd year law student at Thomas Jefferson School of Law in San Diego, California. I am focusing on Native American law, and right now I am taking a course called Federal Indian Law, as part of my studies.
Because I think this is a lot of information, and a lot of USEFUL information, I thought I would start blogging it, so that even the natives who DON'T go to law school can read up on Native American law. Maybe it will help those studying this topic, maybe it will just help others learn about the history of Turtle Island since European settlers came in and claimed it. Basically, you are getting everything I am learning about in this law course without having to pay the 5,000 dollars I do in order to take it.
I am also going to post other stuff I come across that interests me and relates to native issues, and I want to make this blog as interactive as possible. As such, PLEASE feel free to leave comments or questions on this blog, and feel free to email me at Taniquelle@gmail.com if you have questions or feedback for me or have suggestions on how I can make this blog better. I want to help educate people because knowledge, more than anything, is power.
Peace,
Tani
Hi, everyone, my name is Tani, and I am a 3rd year law student at Thomas Jefferson School of Law in San Diego, California. I am focusing on Native American law, and right now I am taking a course called Federal Indian Law, as part of my studies.
Because I think this is a lot of information, and a lot of USEFUL information, I thought I would start blogging it, so that even the natives who DON'T go to law school can read up on Native American law. Maybe it will help those studying this topic, maybe it will just help others learn about the history of Turtle Island since European settlers came in and claimed it. Basically, you are getting everything I am learning about in this law course without having to pay the 5,000 dollars I do in order to take it.
I am also going to post other stuff I come across that interests me and relates to native issues, and I want to make this blog as interactive as possible. As such, PLEASE feel free to leave comments or questions on this blog, and feel free to email me at Taniquelle@gmail.com if you have questions or feedback for me or have suggestions on how I can make this blog better. I want to help educate people because knowledge, more than anything, is power.
Peace,
Tani
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