Native Americans: Centuries of Struggle in North America

The Conflict

Native Americans believe that they have been dislocated from their land by invaders—European colonizers—and demand independence for their nations. The U.S. government provides for limited independence within the context of the United States.

Political

• Native Americans believe they compose distinct nations who have not voluntarily joined the United States and should have sovereignty. They believe the United States has duplicitously broken treaties.
• Legal issues include forest management, mineral development, water rights, and reparations.
• The United States provides special rights, including limited autonomy, to Native Americans, which it does not provide to any other groups within the country.

Ethnic

• Ethnic discrimination has limited the achievements of Native Americans.

Economic

• Native Americans feel marginalized and impoverished by the United States and have been removed from valuable land.
• Native American organizations have sued the U.S. government's Bureau of Indian Affairs.

In American Indian Policy in the Twentieth Century, Vine Deloria, Jr. wrote: "The federal-Indian relationship … is like no other in the world… Indian tribes appear to have the same political status as … independent states … yet they … seem to be forever mired in a state of political and economic pupilage." During the last two decades of the twentieth century, Native Americans in the United States have experienced a cultural and economic renaissance after the devastation their culture experienced triggered by events brought about by the European colonization of North America centuries earlier. Despite the time that has passed, the issue of tribal political independence, or sovereignty, can still be seen in U.S. headlines in the year 2000 as it was during early seventeenth-century treaty negotiations with Dutch colonists.

The concept of tribal political sovereignty in 2000 is central to numerous natural resource management and economic development issues. By the beginning of the twenty-first century, tribal lands held much of the last remaining deposits of natural resources in North America. Ongoing legal issues involve water rights allocation, forest management, restoration of fish runs, reestablishment of an economic landbase, mineral development (including gold, copper, zinc, oil and gas, uranium, and coal), heavy-metal poisoning of waters clean-up, and flow management of major waterways including the Columbia, Snake, Colorado, and Missouri Rivers. Legal conflicts frequently pit the general public and state governments against tribal governments, with the federal government weighing in on various sides depending on the circumstances behind the particular dispute.

Economic issues involving casino development usually grabbed the public's attention, but tribes were also investing in other long-term business ventures during the 1990s, potentially involving billions of dollars. In addition, during the summer of 1999, a class-action lawsuit asking for tens of billions of dollars in payment was filed against the U.S. Department of Interior's Bureau of Indian Affairs (BIA) alleging over two centuries of misuse of Indian assets held in trust by the U.S. government.

Historical Background

Native Americans Today

The term "Native American" is commonly used to refer to American Indians living within the United States. However, it also includes Hawaiians and some Alaskan Natives not considered American Indians. When referred to collectively, Native Americans often prefer being called by their tribal names, such as Nez Percé, Navajo, Sioux, or Oneida.

The social and legal position of Native Americans in U.S. society is complex, evolving incrementally over time. Indian Law is a special branch of law in the U.S. legal system. By definition, tribes are formally recognized sovereign nations located within the boundaries of the United States. Over forty-five million acres, or just over two percent of lands within the United States, are actually governed by these tribal governments. Lands under tribal jurisdiction, both owned by tribes or held in trust for tribes by the U.S. government, are formally referred to as Indian Country. It is estimated the peak Native American population was perhaps as high as ten million people five hundred years ago when Europeans first appeared in the Western Hemisphere. The population plummeted to three hundred thousand by the 1920s, at its lowest point. By 2000 the population had rebounded to approximately two million Indians and Hawaiian and Alaska Natives, who live on 314 reservations or in cities. More than 250 native languages are spoken in Indian Country. In 1800 the native population controlled three-quarters of what would eventually become the United States. In the 1990s Indian reservations had a thirty percent poverty rate, with unemployment six times the national average. Health and education needs are high. Almost sixty percent of American Natives live in substandard housing while twenty-nine percent are homeless.

Not all American Indians live in Indian Country today; in fact most do not. There is a long tradition of urban residence among native North Americans, such as the early large pre-contact settlements in the Southwest and Mississippi River Valley. With the establishment of European colonies, Indians became a key part of colonial villages. However, by the early nineteenth century the United States adopted policies to isolate Indian peoples away from the settlers who were moving west, often forcing the Native Americans to remote areas set aside for them. Despite many Indians seeking wage labor in newly established towns, most lived in rural settings into the early twentieth century. In 1930 only ten percent of Indians lived in cities.

However, with thousands of American Indians serving in the U.S. military abroad during World War II (1939-45) or working in defense plants, their exposure to mainstream society made life on poverty-ridden reservations less acceptable after the war. The GI Bill (a bill passed to offer special benefits to veterans in post-war years) also provided new educational opportunities. The population began to move to cities. The U.S. government adopted assimilation policies in the 1950s designed to integrate Indian peoples into mainstream U.S. society, adding further impetus to Indian urbanization. Government programs including the Adult Vocational Training Program and the Employment Assistance Program focused on urban relocation. From 1952 to 1972 the government sent over one hundred thousand American Indians from reservations to urban job placement centers. As a result, the percentage of Indians living in cities expanded from thirteen percent in 1950 to almost thirty percent by 1960. By 1990 the majority of American Indians, or fifty-six percent, lived in urban areas. Still, the reservations in Indian Country remained the focus of native pride and political identity.

History of U.S.-American Indian Relations

Tracing the long history of U.S.-Indian relations from the nation's early years dramatically illustrates how the present-day American Indian legal standing in the United States is not the result of a well-organized body of legal principles. Rather, it is a legal mosaic of accumulated laws and policies coming from many diverse sources over centuries. Although many similarities exist among them, each tribe has its own unique cultural and legal history. For over two centuries, U.S. Indian policy has shifted between periods of supporting tribal self-government and economic self-sufficiency to periods of forced Indian social and economic inclusion into the dominant society.

The basis for U.S. Indian law, which is actually U.S. law about Indians and not by Indians, was well established before American independence was achieved. During the seventeenth century European colonists settled along the Eastern Seaboard and began negotiating treaties with local indigenous groups, treating them as they would other politically independent nations. In return for peace and security for their settlements, the colonists recognized the Indian right of possession to lands they were occupying and using. The United States, following independence from Great Britain, inherited this age-old European international policy. As a result, tribal sovereignty was internationally recognized well before the United States gained independence and its own political sovereignty, and this recognition became the basis for future U.S.-Indian relations.

Fresh from victory over Britain in the American Revolution (1775-83), the fledgling nation made securing peaceful and orderly relations with American Indians one of its first items of business. The 1787 Northwest Ordinance, enacted by the Continental Congress, asserted U.S. ownership of newly gained lands from Britain that were not part of the original colonies but also recognized existing Indian right of possession to those lands. Consistent with the European doctrine of discovery used by early explorers in claiming New World lands, the United States inherited from Great Britain the exclusive right to negotiate with the native peoples who still occupied those lands relinquished by Great Britain. Attempting to end the practice of private individuals or local governments negotiating treaties with or buying lands directly from the sovereign Indian nations, the ordinance stated that only the federal government could legally carry out such activities.

Recognition of tribal sovereignty was directly addressed in the U.S. Constitution, adopted in 1788. Authority for the federal government's legal relationship with tribes was written into the Commerce Clause of Article 1 which reads simply that Congress has power "to regulate Commerce with foreign Nations and … the Indian Tribes." The U.S. Constitution also recognizes the legal status of Indian treaties in Article VI by stating, "This Constitution, and the Laws of the United States … and all Treaties made … shall be the supreme Law of the Land." Treaties ratified by the U.S. Senate hold the same legal force as federal laws and hold precedence over state laws. Further reflecting the significance of Indian relations to the new nation, one of the first acts passed by the first U.S. Congress was the Indian Trade and Intercourse Act of 1790. Exercising its new constitutional authority, Congress reserved treaty-making powers for the federal government and brought all interaction between Indians and non-Indians in the United States under federal control.

Not surprisingly, legal challenges to the concept of tribal sovereignty and exclusive federal authority over Indians soon arose. Strong proponents of states' rights attempted to gain control over Indian relations. As a result, U.S. Indian policy became further defined by three landmark Supreme Court decisions between 1823 and 1832. The legendary chief justice John Marshall issued three opinions related to American Indian issues that came to be known as the Marshall Trilogy. The cases were Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832), which affirmed the tribal right to occupy and govern their lands, tribal sovereignty from state jurisdiction in Indian Country, and defined a moral trust responsibility of the United States to the tribes. Marshall described tribes as "domestic dependent nations" essentially free of state control.

The trust obligations meant the United States was responsible for Indian health and welfare. The place of the Indian tribes on the U.S. political landscape was established. Unfortunately for the Indian peoples, these principles were not universally embraced. As early as the 1830s, President Andrew Jackson (served 1829-37) rejected Marshall's opinions and pressed on with Indian removal policies.

U.S. Indian policy—as directed by Congress using its constitutional authority—has proceeded from the 1790 Indian Intercourse Act to the year 2000 along a winding pathway of alternating goals. Policy swerved from "civilizing" the tribes (1780s-1820s) according to European ideas at the time, to isolation and protection on reservations (1830s-1870s), forced assimilation into American farming society (1880s-1920s), recognition of reorganized tribal governments and relations with the federal government (1930s-1940s), termination of trust status (1950s), and finally to support for tribal self-determination and integrity (1960s-2000). Despite early U.S. Indian policies from 1787 to 1830 that were seemingly protective of Indian rights, Indian peoples suffered catastrophic loss of economies, lands, and life from the relentless westward push of U.S. expansion.

Treaties, Removal, and Reservations

Based on the Indian Intercourse Act, between 1790 and 1871 the U.S. Senate ratified over 370 treaties with Indian nations. In the seventeenth and eighteenth centuries, the greatly outnumbered colonists pursued treaty agreements with American Indians to secure peace and regulate trade. Though outnumbered, the colonists carried forward the ethnocentricism that dominated Europe for centuries—that they would carry civilization to the rest of the world's populations. Added to this belief were humanitarian sensitivities brought on by the Age of the Enlightenment in the seventeenth century. As a result, an effort to "civilize" indigenous peoples predominated policy.

Following the Revolutionary War, treaties also served to acquire lands and gain Indian allegiance to the newly formed nation instead of to England. The United States signed its first formal U.S. treaty with the Delaware Indians in 1778. In 1789 the U.S. Constitution recognized Indian treaties as equivalent to federal law, thus enforceable in state and federal courts.

By the 1820s treaties began to focus on removal of Indians from their traditional homelands to lands away from expanding U.S. settlement. One of the more tragic examples of U.S.-government actions came in the 1830s removal policy directed by President Jackson. Under this policy, the United States forcefully removed the Five Civilized Tribes from the southeastern United States to the newly created Oklahoma Indian Territory. Thousands of deaths directly resulted from initial long-term detention followed by the 1,800-mile, six-month march, known as the Trail of Tears.

Following the acquisition of what is now the southwestern United States from Mexico and the opening of the Oregon Trail to the Pacific Northwest in the 1840s, federal treaty commissions sought out tribal groups throughout the West to acquire Indian lands and relocate them to reservations. Through treaties made with tribes in the American West, eastern U.S. Indian removal policies of the 1830s continued throughout the 1860s. The tribes exchanged land, water, and mineral rights for peace, security, health care, and education. The western treaties created a vast reserve system in which Native Americans could exclusively exercise their inherent rights within certain defined territories, called reservations. In 1871 Congress closed the treaty period with more than 650 treaties signed and 370 ratified into law.

Many northwest treaties and some in the Great Lakes region also reserved non-exclusive Indian hunting, fishing, and gathering rights outside reservation boundaries to help preserve traditional economies. The typical language of such treaties is exemplified in the 1855 Point Elliott Treaty of western Washington which states, "The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory … together with the privilege of hunting and gathering roots and berries on open and unclaimed lands." Other off-reservation rights, depending on the treaty, also might include trapping, shellfish gathering, grazing stock, tapping trees for maple syrup, gathering wild rice, or cutting down trees for tipi poles. The allocation of these unique property rights to tribal members was the responsibility of tribal governments. State hunting regulations and limits were largely constrained by the exertion of tribal sovereignty and the supremacy of treaties over state law.

Besides economic issues, treaties also identified other rights for Native Americans including the right to self-government by recognizing the political sovereignty of tribes to manage their own affairs. The right to exclusive use of reservation lands also carried with it the property rights to subsur-face minerals. Treaties also commonly contained provisions for health, education and other services, but these promises have not been considered rights.

The treaties paved the way for a cooperative coexistence between the United States and Native Americans but were not consistently upheld. Many believed that the dwindling native populations in the late nineteenth century would eventually cease to exist altogether. Consequently, treaties were considered temporary by some. Honoring these treaties also conflicted with the promotion of non-Indian settlement and economic development in newly acquired U.S. territories. But American Indian peoples persisted.

Fish and game occupied a central role in Indian spiritual and cultural life and defending hunting and fishing rights constituted defending American Indian cultural identity. Interpretation of treaty rights in the courts has a long complex history. In Lone Wolf v. Hitchcock (1903), the Supreme Court ruled that Congress has the plenary (absolute) power to unilaterally take away rights. However, the responsibility of federal trust requires careful exercise of this absolute power, meaning it should be used only when it would be beneficial to Indian peoples. The Court in United States v. Winans (1905) established the Reserved Rights Doctrine in which tribes retain inherent rights unless they are explicitly taken away by Congress. For example, the Court in Menominee Tribe v. United States (1968) held that a tribe retains its hunting and fishing rights even if its reservation is terminated by Congress, unless legislation specifically states the rights are no longer valid. The Court ruled in Winters v. United States (1908) that inherent to creation of reservations through treaties were water rights necessary to support residential and economic use of the reservation. The decision, known as the Winters Doctrine, remained central to water rights negotiations with states at the end of the twentieth century.

To resolve legal disputes over treaty interpretations, the "canons of construction" described in Winters v. United States (1908) state that courts should always interpret unclear treaty language from the tribal perspective. At nineteenth century treaty councils, Indians were usually the weaker negotiating party, often unable to speak or understand English and acting under duress.

In 1871 Congress ended the treaty-making era, closing a major chapter in U.S.-Indian relations. By this time, the Indian population had largely been relegated to remote areas, out of the way of U.S. expansion and settlements, and removal was considered essentially complete. Away from U.S. markets, prospects for Indian economic recovery were slim at best. Continued U.S. expansion along with the discovery of gold in the 1860s brought increased demand for natural resources. The remote reservation lands to which Indian tribes had relocated became increasingly more attractive to settlers. Some of the last treaties forced on the tribes greatly reduced the size of reservations established by earlier treaties.

In contrast to rights of tribal governments, the legal rights of Indian individuals was not a major concern of the federal government or the courts throughout much of the nineteenth century. Tribal relations were largely guided by treaties rather than standard U.S. law, and legal dealings with individuals was generally avoided. A system for policing Indians developed largely outside of U.S. court jurisdiction. Indian agents, having ready access to the U.S. military, exercised broad authority. They readily detained numerous individual Natives for a wide range of alleged actions.

By the 1870s social reformers in the East shifted their attention away from slavery and began to focus on Indian issues. Demands for humanitarian action gathered momentum. An 1879 federal court ruling in United States ex rel. Standing Bear v. Crook asserted that off-reservation Indians were "persons" as defined in the Fourteenth Amendment, having the same constitutional due process and equal protection rights as U.S. citizens. The ruling meant that the U.S. Army could no longer exercise broad authority to detain Indians without full civilian constitutional protections. Nevertheless, much about the legal standing of Indian individuals still remained poorly defined. In 1884 the Supreme Court ruled the Fourteenth Amendment of the Constitution did not automatically grant citizenship to Indians.

Assimilation

By the 1880s, remaining groups of American Indians were coming under greater pressure to relinquish their lands to accommodate U.S. expansion. Many American Indians believed their only chance of survival was through integration into American society. A major period of forced cultural assimilation began with the General Allotment Act of 1887 and lasted into the 1930s. In a sense, this was a return to methods used during the colonial period to "civilize" Indian peoples. Many European settlers believed the indigenous tradition of communally owned property was creating a barrier to Indians adopting Western ways. As a result, Congress passed the Allotment Act, also known as the Dawes Act, authorizing the Bureau of Indian Affairs (BIA) to divide communal reservation lands held in trust by the federal government into smaller, privately owned parcels. The agency allotted 160-acre parcels to families and eighty-acre parcels to single adults over eighteen years of age. Indians receiving allotments also received U.S. citizenship to speed their assimilation. U.S. policymakers reasoned that if they owned their own property, Indians would most likely become farmers and adopt the U.S. farming lifestyles.

Given the high death rates among the Indian population before 1887, much reservation land was left over after every tribal member had received their allotment. Those unallotted lands were declared "surplus" and sold by the United States to non-Indians. In addition to the "surplus" lands, much allotted land went into forfeiture (was lost) when many Indians could not pay taxes on their often remote, unproductive desert properties. This land, too, went to non-Indians eventually. Even when land was productive, markets were usually still too distant. As a result, the allotment policy became an economic disaster for Indian peoples, reducing Indian Country in the United States from 138 million acres in 1887 to forty-eight million acres by 1934. In many cases, the more agriculturally productive lands on reservations passed out of tribal control.

As part of the assimilation effort, Congress granted American Indians born in the United States citizenship through the Indian Citizenship Act of 1924. The act also made Indians citizens of the states in which they resided. Although able to vote and hold state office, they were not subject to state law while on Indian lands. The Constitution's Bill of Rights, however, still did not apply to interactions between Indians and their tribal governments because of tribal sovereignty. As a result, tribal members could be subjected to harsher legal penalties from their own tribal governments than could non-Indians in U.S. society for the same crimes.

Reorganizing Tribal Governments

By the 1930s the tragedy of the allotment policy had become readily apparent to U.S. policy-makers. Secretary of the Interior John Collier recommended an end to assimilation efforts and Congress responded. Stressing tribal sovereignty, the Indian Reorganization Act of 1934 ended the allotment process, stabilized remaining tribal land holdings, and promoted tribal self-government. The act encouraged tribal governments to adopt U.S.-style constitutions and form federally chartered corporations. Although many tribes elected to organize under the rules of the act, many rejected developing such constitutions. Rather, some of them organized new governments under their own tribal rules. Despite the seemingly supportive policy of encouraging the formation of modern tribal governments, the newly established, more modern governments and the new governments' tribal leaders often conflicted with the traditional tribal political leaders and structure.

As a result of the acts, though, some tribes with a sufficient land base and marketable natural resources, such as timber, developed an economic base and prospered during this period. The Supreme Court reaffirmed the federal trust obligation during this time in Seminole Nation v. United States (1942). The Court ruled the United States held a "moral obligation of the highest responsibility and trust" to be judged "by the most exacting … standards."

Termination

By 1953 U.S. governmental policy had shifted back to fostering assimilation. This time the government unveiled "termination" policies. The major component included provisions to terminate the federally recognized—and financially supported—status of those Indian tribes and reservations that seemed most ready for such a move. Termination legislation also included a relocation provision to move Indian people from reservation communities into major cities as a means of acculturating them more quickly into mainstream society. Termination of a tribe meant ending the special trust relationship and converting tribal reservation lands to private lands. Access to federal health and education services was curtailed. Approximately one hundred tribes were selected for termination. As in the allotment period, much Indian land—some very productive—was sold to non-Indians. The economic base for those Indian communities was devastated. As part of termination, Congress also passed Public Law 280 in 1953, which expanded state jurisdiction onto tribal lands in selected states, decreasing tribal sovereignty even further.

The welfare of urban Indians became an increasing concern of the federal government under its trust responsibilities as the Indian population shifted from reservations to cities. Urban Indians increasingly were victims of racial discrimination and poverty. Underemployment led to homelessness, rampant substance abuse, and unusually high injury, disease, death, and infant mortality rates. To provide support for the expanding Indian urban population, Indian centers, clubs, and churches appeared in many cities. However, sources of funding for these urban Indian social services became controversial, as tribal leaders did not want limited funds intended for reservation services diverted to non-reservation Indians. After considerable pressure was applied to the government by the National Congress of American Indians and other Indian groups, by 1958 it became official government policy that tribes must consent to their own disbandment, and termination came to an end. Another factor was the civil rights movement of the 1950s and 1960s, which inspired the Red Power movement. Indian activism grew and spread during the early 1970s to the rural reservations through activities of various groups, including the American Indian Movement (AIM).

In 1976 Congress passed the Indian Health Care Improvement Act to address the urban Indian plight. Exposure to the civil rights movement of the 1950s and 1960s in the cities also inspired Indian radicalism and the Red Power movement. Such activism spread in the early 1970s to the rural reservations through activities of various groups, including the American Indian Movement (AIM).

An important socio-cultural result of Indian migration to the cities was the mixing of Indian peoples from many tribes. This growth of pan-Indian-ism further altered American Indian identity. Urbanization brought other changes: traditional lifestyles were lost, Native languages forgotten, and tribal connections often broken. Intermarriage with non-Indians became more common.

With the resurgence of tribal economies in the 1980s and corresponding growth in political strength, some urban Indians moved back to their rural tribal communities. There they applied their educations and skills to further propel Indian resurgence in America. Urbanization and reservation revitalization constituted conflicting trends in late twentieth century Indian life. Questions and issues related to tribal membership and rights, claims to Indian ancestry or tribal affiliation, and intellectual property issues (regarding who has the right to represent Indian interests to the mainstream society) became major concerns.

Tribal Self-Determination

With a decline in Indian well-being both on and off reservations by 1960 and the rise of the Red Power movement congressional support for termination policies did not last long. U.S. Indian policy again took a dramatic shift in the 1960s toward tribal government self-determination in which the tribes would govern their own internal affairs. The goal became to empower tribes to manage their own affairs free of government oversight or intrusion.

Influenced by the American civil rights movement, a series of congressional hearings in the 1960s focused on the lack of consistent civil rights protections offered by tribal governments to their members. As a result, Congress passed the Indian Civil Rights Act (ICRA) of 1968 which extended most of the Constitution's Bill of Rights to Indian peoples, including free speech protections, free exercise of religion, and due process and equal protection of tribal government laws. The act did not extend to Indians the right to a jury trial in civil cases, free legal counsel for the poor, search and seizure protections, and prohibition of government support for religion. Tribal governments were free to promote their own tribal religions. Issues such as gender discrimination in tribal laws still could not be challenged under federal law. The act also cut back some of the states' authorities granted in Public Law 280. In respect for tribal sovereignty, interpretation of ICRA was left to the tribes and tribal courts, not federal courts. Federal courts could only review tribal court decisions in certain types of criminal cases.

Other legal distinctions for Indians were also identified. Title VII of the 1964 Civil Rights Act explicitly exempted Indian hiring preference laws from due process protections in some instances. For example, the BIA could favor Indian applicants in filling jobs within the agency. The 1974 Supreme Court ruling in Morton v. Mancari affirmed that American Indians can be treated differently from other U.S. citizens by the federal government, despite anti-discrimination laws. Tribes may be treated as political—not racial—groups on occasions when the U.S. government is exercising its trust responsibilities to protect Indian interests and promote tribal sovereignty. If the Indian hiring preference laws were only designed to help Indians as individuals, they would be deemed illegal.

Because civil rights protections for Indians were different from other U.S. citizens, determining who was Indian and who was not had increasingly important legal consequences. Individuals can gain tribal membership through birth or marriage and may have substantial non-Indian ancestry. Conversely, a person of total Indian ancestry who never establishes a relationship with a tribe cannot claim legal Indian status. As an exercise of their tribal sovereignty, each of the over 550 recognized tribes in the United States determines the basis for membership in their tribe. Generally, an Indian can be anyone having some degree of Indian ancestry, is considered a member of an Indian community, and who promotes themselves as Indian.

The biggest boost in support of tribal sovereignty and self-sufficiency came in 1975 when Congress passed the Indian Self-Determination and Education Assistance Act, giving tribes much greater opportunity to administer federal programs benefiting Indian peoples that were previously administered by the BIA. Many of these programs provide health and education services.

For the next two decades Congress continued passing acts protecting tribal rights and interests, including the American Indian Religious Freedom Act (1978), the Indian Mineral Development Act (1982), the Indian Gaming Regulatory Act (1988), the Native American Graves Protection and Repatriation Act (1990), and the Indian Self-Governance Act (1994). The 1994 act amended the earlier 1975 Self-Determination Act making more federal government services to tribes subject to tribal administration. Though many tribes welcomed the trend toward greater political independence, some tribal leaders feared greater self-governance would also lead to a declining interest in fulfilling its trust obligations by the United States. The federal economic safety net could be largely lost. Nonetheless, the self-governance trend progressed through the 1990s. Legislation was introduced in late 1999 to further increase tribes' responsibility to run hospitals, clinics, and other programs overseen by the Indian Health Service. The self-governance requirement insists that tribes must demonstrate established financial and management skills.

During the self-determination era, tribal court systems expanded as many tribes gained greater economic and political power. Due to the broad diversity of tribal legal systems, however, the attrition of justice and the way it was applied differed from tribe to tribe. Aside from those court systems patterned after U.S. models, some tribes retained traditional systems and others had no systems at all.

By 2000 the resulting branch of U.S. law, commonly called Indian Law, was a very peculiar part of the U.S. legal system, with tribal governments and their peoples possessing a unique legal status. Under the sovereignty concept, tribes could form and reorganize their own governments, determine tribal membership, regulate individual property and manage natural resources in Indian Country, provide health services, develop gaming businesses, regulate commerce on tribal lands, collect taxes, maintain law enforcement, and establish tribal court systems. Members of federally recognized tribes were both U.S. and tribal citizens, simultaneously receiving benefits and protections from federal, state, and tribal governments.

Status of Indigenous Populations Worldwide

Similar health and welfare issues of Native Americans in the United States are shared with other indigenous populations worldwide. In late 1999, the World Health Organization (WHO), the United Nations' health agency, reported that the 300 million indigenous peoples around the world faced shortened life spans due to widespread disease and poverty. As demands on natural resources by the world's developed industrial nations have increased in remote areas, the WHO reported increases in the rates of diseases such as diabetes, malaria, yellow fever, and cancer, as well as alcoholism and infant mortality, coupled with decreasing life expectancies among those indigenous populations. Life expectancies were ten to twenty years less than the general population and infant mortality was three times higher. Suicide rates and domestic violence also rose as traditional values became increasingly lost. Even Arctic populations were increasingly exposed to industrial environment contamination. In the United States American Indians have higher rates of tuberculosis, liver disease, cancer, pneumonia, diabetes, suicide, and homicide than the general U.S. population. In many tribes amputations, blindness, and dialysis are a way of life as diabetes is rampant. In some cases, eighty percent of tribes are afflicted. The disease is blamed on lifestyle changes forced upon the Natives during the past two centuries. In Bolivia, twenty percent of indigenous children die before their first birthday, and 14 percent die before reaching school age.

A strong wave of attention to the plight of indigenous peoples has been sweeping Latin America. For the first time since 1821, a Peruvian Native ran a strong race in 2000 for the presidency of Peru. The president of Ecuador was toppled in January 2000 by an Indian rights movement. In December 1999, Venezuela became the fourteenth Latin American country in recent years to grant new constitutional rights to indigenous groups, allowing them to apply tribal law in their territories. In general, interest in cultural traditions, including medicines, clothing, ceremonies, and language was renewed in an effort to recapture cultural identities.

The Indian Health Services (IHS), a U.S. federal agency, provides health care for about three-fourths of the two million Native Americans in the United States. Treaties and other laws require that health care be provided in both reservation health centers and in urban clinics. Recognizing the hopelessness and despair still prevalent in much of Indian Country, in March 2000 the U.S. Commission on Civil Rights recommended formation of a federal task force to seek solutions. In April 2000 President Bill Clinton (served 1993-2001) visited the Navajo Nation to stress how the American economic boom of the 1990s had by-passed some communities. Almost forty percent of Navajo households are without electricity, seventy percent are without telephones, and unemployment is fifty percent.

Alaskan Natives

Experiencing a distinct cultural and legal history, Alaskan Natives struggled through the twentieth century to claim rights to their indigenous land base and participate in mainstream Alaskan society. Not until the 1940s did non-Natives actually outnumber Natives in the territory. Correspondingly, socio-cultural change came slowly until the end of World War II (1939-45). With the status of Alaskan Native land rights still awaiting resolution in the mid-twentieth century, many indigenous peoples continued a traditional subsistence lifestyle relatively unrestrained. The slowness of Alaskan Natives to assimilate into Western society and adopt white, middle-class values stimulated persistent white paternalism, negative stereotyping, and economic exploitation.

A collision course between Native Alaskans and U.S. expansionism erupted when Alaskan statehood occurred in 1959. Under the Alaskan Statehood Act, the new state could claim 104 million acres of public lands, much of it ancestral lands still used by Alaskan Natives. In reaction, Native Alaskan political organization, guided by the Alaska Federation of Natives, grew in strength through the 1960s. With the discovery of major oil fields in northern Alaska in 1968, Natives legally stalled construction of the Alaska pipeline, critical for transporting oil to the southern Alaskan coast. Industry, the state, and President Richard M. Nixon (served 1969-1974) joined the Alaskan Natives to lobby Congress for a comprehensive resolution.

In response, Congress passed the Alaska Native Claims Settlement Act (ANCSA) in 1971. Bargaining from an unusual position of political strength, Alaskan Natives received forty-four million acres of land and $962 million in exchange for dropping all claims to the remaining 335 million acres. ANCSA created twelve regional and almost two hundred village Native corporations to disperse and invest the funds and guide future Native economic development.

Representing the most important legislation to address land ownership and use in Alaska, the act catapulted Native participation into Alaskan socio-political and economic life and reestablished Native Alaskan control over their own affairs. A major intent of ANCSA was to assimilate Alaskan Natives into mainstream American society, transforming them from a communal society to one of private ownership and free enterprise. A system of regional and village-level profit-making Native corporations was designed to provide better educational and economic opportunity and to guide economic development for increased independence.

The relative high incidence of poverty compared to the general population, poor access to quality health care, suppression of religious freedom, and complex subsistence issues persisted. By 1990 over eighty-five thousand Natives resided in Alaska, most still living in small rural villages. Becoming more of a minority in Alaska's booming economy and population growth, the Native population dropped from around twenty-five percent of the state population in 1950 to fifteen percent in 1990.

With chronic socio-economic problems still existing toward the end of the twentieth century, many Alaskan Natives sought to limit the role of the ANCSA corporations, strengthen tribal governments, and resurrect their traditional subsistence economies. Through tribal governments created to regulate Native affairs—including the establishment of tribal courts, taxation systems, and management of village assets—Native villages more aggressively asserted an inherent right to self-rule. Though some socio-economic gains were made by the end of the twentieth century, economic discrimination and exploitation persisted. The Alaskan state government has opposed formal recognition of tribal self-government. In 1998 and 1999 Alaskan Natives and sympathizers marched in the capital city of Anchorage, protesting the state's position. Regarding Native access to wild game, the state faced a choice of either instituting an unpopular subsistence priority system including the Natives and other non-Native resource users, or having the federal government take over management of fish and game throughout the region.

Hawaiian Natives

The first European contact with Hawaiian Natives was by British sea captain James Cook in 1778. Native Hawaiian sovereignty was threatened as internal Native political factions arose because of stresses caused by nineteenth-century colonization of the islands. By 1850 private property ownership driven by American business interests competed with the Native common lands policy. Finally, in 1893, Hawaiian Native leader Liliuokanani abdicated under hostile pressure from the United States, and a new constitution was adopted granting U.S. citizens the right to vote in Hawaiian elections. In 1898 Hawaii was annexed as a U.S. territory and Natives were forced to cede "all former Crown, government and public lands to the United States." With this final loss of an economic land base, Native Hawaiians faced difficult times. In response to the Native condition, Congress passed the Hawaiian Homes Commission Act in 1920. The commission was considered part of the federal trust obligation for the welfare of the natives and it was incorporated into the new state constitution when Hawaii gained statehood in 1959. The Office of Hawaiian Affairs (OHA) was established in 1978 to administer services for the Natives. It was established that only Native Hawaiians had the right to vote for the board of nine trustees who administer OHA. However, a non-Native successfully won a Supreme Court decision in early 2000 in Rice v. Cayetano when the Court ruled that Natives, constituting twenty percent of the islands' population, did not hold exclusive right to vote in trustees' elections. Natives felt this decision was a major blow to Native Hawaiian self-government. The Native Hawaiians were not considered a political group, as the mainland Natives were considered, but instead a race by the Court.

Natural Resource Use and Management

Tribal sovereignty has come into play in a number of late twentieth-century socio-political issues and legal actions. For example, in the 1980s Section 519 of the Clean Water Act gave tribes authority to establish their own water standards. As a result, in December 1997 the Supreme Court ruled in favor of the Isleta Pueblo in a case pitting the tribe against the city of Albuquerque located upstream. Tribal water-quality standards established downstream of the city and upheld by the Court could force the city to add $400 million of improvements in its water systems to assure the higher standards downstream. The Confederated Tribes of Salish and Kootenai in western Montana won a similar water-standards case in federal district court in October 1998.

Treaty Rights

With increased competition over natural resources in the latter part of the twentieth century, tribes began winning favorable court rulings protecting off-reservation hunting and fishing rights granted by treaties of the previous century. An intense battle in the Northwest over fishing rights to the Columbia River resulted in a Supreme Court ruling in Washington v. Washington State Commercial Passenger Fishing Vessel Association (1978). The Court affirmed a lower court ruling that the treaty language "in common with citizens of the United States" means that Indians were entitled to half of the allowable take of salmon from the river.

The Mille Lacs band of Chippewa and seven neighboring tribes won a 1999 Supreme Court decision upholding their rights under an 1837 treaty, after eight years of negotiation and litigation against the state of Minnesota. In western Washington several tribes began asserting treaty rights to access ancestral shellfish beds across state and private lands. Such tribal harvests had effects on thousands of private property owners along two thousand miles of public and private tidelands as well as state and commercial shellfish growers. A lower court ruling in favor of the tribes stood as the Supreme Court refused to hear an appeal on the shellfish harvesting case. In 1999 the Makah Indian whale hunt off the Washington coast for the first time in over seventy years dramatized the exercise of treaty rights, drawing considerable international attention. The Makah's actions brought an increasingly familiar confrontation between the exercise of aboriginal traditional economic activities and environmental protection interest groups. Despite physical confrontations out on the water, the tribe did manage to capture a whale.

Other court actions sought to protect habitat. A district court victory in Pyramid Lake Paiute v. Morton (1973) blocked diversion of water from a lake in northwestern Nevada.

Economic Development-The Rise of Economies in the 1990s

Until the late twentieth century, Indian reservations were almost uniformly caught in a cycle of poverty, welfare, and hopelessness, which had persisted for generations. With economic success stories being few and widely scattered before 1988, a new era of tribal economics arrived when Congress passed the Indian Gaming Regulatory Act. Within a decade, one-third of the 554 federally recognized tribes in the United States operated some form of gaming, generating an estimated annual income of $6 billion. Due to tribal sovereignty, casino revenues are tax free, but agreements with the states required under the act often provide some compensation to states to pay for increased infrastructure needs of the community. Additionally, some tribes voluntarily relinquished some sovereignty to buy insurance for casinos and other business ventures. Immunity was waived against lawsuits to the limits of insurance coverage.

The most notable success in gaming was the Foxwoods Casino and Resort operated by the 500-member Mashantucket Pequots of Connecticut. Comprised of three-million-square feet plus a high-rise hotel and twenty-four restaurants, in 1998 it became the largest tribal facility in the country. Originally one of the more powerful tribes on the East Coast prior to colonial settlement in the seventeenth century, their size had shrunk to only thirty members by 1983. The Pequots built their casino in 1992 after finally receiving federal recognition. By 1998 the tribe was making over $1 billion a year through its casino and other businesses, and they had become the largest employer in New England and largest landowner in Connecticut.

Similar stories unfolded elsewhere in the country. The Coeur d'Alene Tribe of northern Idaho became the economic powerhouse for a four-county area through gaming. With their newfound income they built a $5 million wellness center and an eight-thousand-bed hospital. The Objibwa of Minnesota built two lavish casino and hotel complexes in the early 1990s, including the Grand Casino Mille Lacs. Unemployment fell from forty-six percent to less than ten percent, housing improved, and new lands were acquired. The Oneida of Wisconsin became the largest employer in the Green Bay area due to gaming and other business ventures.

Aside from gaming, another novel economic endeavor launched in 2000 with substantial income potential was the establishment of an "offshore bank" by the Blackfeet Tribe of Montana. The Glacier International Depository Ltd. was established on tribal land just east of Glacier National Park. Free of state regulation, the bank sought deposits of wealthy foreigners.

Other Effects of Economic Gains

Indian gaming successes have given rise to a new generation of Native American entrepreneurs. Many of these new business leaders see gaming not as an end goal of tribes, but a means to establish a long-term diversified tribal economy to support a lasting increase in quality of life. Gaming revenues first went into education, housing, health and elder care, and law enforcement. But as wealth accumulated, investments in a wide range of developments grew, as well as philanthropic donations to local non-Indian communities. Successful tribes sought by more land for development and business enterprises ranging from golf courses to industrial parks were sought. Unemployment rates in many areas plummeted. Examples of these successes include the Choctaws of eastern Mississippi who, in addition to a casino, by 1999 also operated a construction company, an electronics manufacturer, retail stores, and industrial parks; the Paiute of Las Vegas, Nevada, built a high-quality golf course.

Another key objective of many tribes who had culturally and economically rebounded was to reconstruct tribal identities by focusing on lost languages, songs, dances, and other traditions. For this purpose, the Mashantucket Pequot built a $135 million museum and a research center.

Modern Reaction to Tribal Sovereignty

The substantial economic gains some tribes had managed to achieve brought a backlash by the federal and state governments and the general public. Issues of economic development and tribal sovereignty became increasingly intertwined by 2000. As some tribes boosted their incomes, many opposed continued tribal tax-free and largely regulation-free status. Many complain that tribal businesses operating free of state taxes and regulations hold an unfair competitive edge against non-Indian businesses. The concept of sovereignty came increasingly under attack. Political initiatives were introduced in the late 1990s to weaken tribal immunity based on sovereignty. Tribal proponents responded that such efforts typically represented what tribes have endured for centuries: whenever Indians gain something of value, the dominant white society seeks to take it away.

One key issue among tribes and policymakers in 2000 resulting from casino wealth was how to redistribute limited federal funding support to tribes through the BIA. Tribes receive $3 billion annually directly from the federal government for tribal services as well as free legal representation from the U.S. Justice Department. The funding has been vital for health and welfare services and remains so for those still stuck in the poverty cycle. Several proposals were offered regarding what degree of tribal wealth should affect the allotment of federal aid. Tribes achieving greater economic self-sufficiency feared that, along with decreasing federal support to their particular tribes, the federal government would also tend to ignore its trust responsibilities leading to many other social and legal ramifications.

Another reaction to gaming developments was growing opposition to putting more land in trust for tribes as more holdings were being acquired. When lands are placed into federal trust they become exempt from local taxation and zoning requirements. However, trust also means the land is not privately owned. Consequently, banks will not accept land as collateral, so many Indians are shut out of the conventional home-loan process. By 2000 the BIA opposed putting new land acquisitions into federal trust for tribes.

The local population feared new casino development would occur on these isolated parcels of land within their communities. In reaction, tribes are spending millions of dollars in donations to political parties and hiring lawyers, lobbyists, and public relations firms. Some tribes have even opened lobbying offices in Washington, D.C.

Legal Jurisdiction

When Indians commit crimes or civil offenses off the reservation, they are subject to county, state or federal courts. But on reservations, tribal jurisdiction extends to tribal members committing minor crimes, but not to non-Indians as ruled by the Supreme Court in Oliphant v. Suquamish (1978). Tribal members committing major crimes on reservations, such as murder or armed robbery, are subject to federal jurisdiction. Claims against tribes go to tribal courts where tribes can invoke sovereign immunity to limit damages.

The Supreme Court ruled unanimously in a 1998 Yankton Sioux case that the State of South Dakota held legal jurisdiction over non-Indian, privately owned lands within reservation boundaries, but not largely surrounded by Indian-controlled lands. The Supreme Court also unanimously ruled that the State of Minnesota held the right to tax lands directly owned by the Leech Lake Indian band and not held in trust status. Similarly, in Montana v. United States (1980) the Court ruled the Crow tribe of Montana could not generally regulate hunting and fishing of non-tribal members on private lands within reservations. The Court held that tribes can exercise civil authority on non-Indians on private lands in reservations only when conduct threatens tribal "political integrity, the economic security, or health or welfare of the tribes." By 2000 just how much jurisdiction tribes have over privately held land within reservations was still somewhat uncertain. Some circumstances occur where tribal jurisdiction extends beyond Indian Country. The 1978 Indian Child Welfare Act recognizes tribal authority over child custody cases involving tribal children off reservation.

Major Figures

The struggle to maintain tribal sovereignty has included a wide-range of players. Key tribal individuals who stood against the onslaught of U.S. expansionism include many names now embedded into American history such as Tecumseh, Crazy Horse, Red Cloud, Geronimo, Standing Bear, Black Elk, Looking Glass, Plenty-Coups, Sitting Bull, Cochise, Joseph, and Black Kettle. These leaders defended their lands from the constant encroachment of American settlement. More recent leaders have included Ron Allen of the Jamestown S'klallam of western Washington, who served as president of the National Congress of American Indians—the largest Native American organization in the United States—through much of the 1990s. Kevin Gover, an Oklahoma Pawnee, became head of the BIA in 1997 under the Clinton administration. Other influential leaders have been: John Echohawk and Walter Echo-Hawk of the Native American Rights Fund, a nonprofit legal defense group based in Boulder, Colorado; Robert Coulter, executive director of the Indian Law Resource Center in Washington, D.C; Wilma Mankiller, Cherokee leader and national activist; Ada Deer, Menominee educator and activist who supervised tribal affairs under the Clinton administration; Ben Nighthorse Campbell, first Native American U.S. senator; and Suzan Harjo, Cheyenne-Arapaho activist who served in President Jimmy Carter's (served 1977-81) administration. Additionally, literature and academic studies by Native American authors have proliferated through the 1990s. A key scholar and author of this trend was Vine Deloria, Jr. of the University of Colorado. Among the many others are: Wendy Rose, Hopi poet; Alfonso Ortiz, San Juan Pueblo anthropologist; Jack D. Forbes, Powhatan author and scholar; Russell Thornton, Cherokee author and sociologist; James Welch, Blackfeet-Gross Ventre novelist.

Among non-Indians central to the sovereignty issues was President Bill Clinton, who opened the door to U.S.-Indian relations wider than any president since President Richard Nixon. For the first time since 1822, representatives of more than three hundred tribes met at the White House with the Clinton administration to discuss sovereignty and intergovernmental relations. Secretary of the Interior Bruce Babbitt, a former Arizona governor, was a central figure in carrying out Clinton's initiatives, however, Babbitt became embroiled in the legal dispute over the status of federal management of tribal assets. Another prominent figure and a key political opponent to tribal sovereignty has been U.S. senator Slade Gorton, Republican from the state of Washington. Many Indian people have considered Gorton their primary political foe since the 1970s. Similarly, Republican governor Tommy Thompson of Wisconsin has been outspoken on limiting tribal commercial business immunity from taxation and regulation, and on limiting tribal clean water standards to reservation lands only.

Recent History and the Future

Despite foreign incursions and the loss of a significant amount of their native lands over the past five centuries, Native Americans have endured. Though isolated on poverty stricken reservations and in inner cities for much of two centuries, the Native population has rebounded demographically, economically, and politically.

With the increased economic and political presence of tribes throughout the nation, legal skirmishes continue over Indian efforts to reassert tribal sovereignty. Bills in the legislature continue to attempt to question tribal sovereignty and self-determination and likely seek to curtail Indian gaming as well. The Supreme Court showed signs throughout the 1990s of restricting the concept of Indian Country. In addition, bills before Congress have proposed exempting all non-Indian land within reservations from tribal jurisdiction. Some tribes—not those enjoying the gaming boon—have offered their lands for nuclear waste storage. Considerable excitement and debate has resulted in this regard involving state governments and local publics. This issue promises to be sensitive throughout the coming years and central to the sovereignty question. As urban sprawl creeps toward once remote reservation boundaries, jurisdictional and sovereignty disagreements will undoubtedly further escalate.

The unique legal intergovernmental relationship between the federal government and tribal governments has been described as "measured separatism." Tribes have sovereign authority to exercise jurisdiction and decision-making authority over important aspects of tribal social and political life. Holding onto that authority has become a major focus as tribes become economically successful.

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Richard C.Hanes

Chronology

1787 The Northwest Ordinance, enacted by the Continental Congress, asserts ownership of lands gained from Britain that were not part of the original colonies, but also recognizes existing Indian right of possession to those lands.

1823-32 Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) affirm the tribal right to occupy and govern their lands, tribal sovereignty from state jurisdiction, and defines a moral trust responsibility of the United States to the tribes. In contrast to these laws, President Andrew Jackson authorizes the removal of large numbers of Indians from their land.

1879 In the United States ex. rel. Standing Bear v. Crook, the Supreme Court asserts that Indians off-reservation were "persons" as defined in the Fourteenth Amendment.

1884 The Supreme Court rules that the Fourteenth Amendment of the Constitution does not automatically extend citizenship to Indians.

1887 The General Allotment Act, also known as the Dawes Act, authorizes the Bureau of Indian Affairs (BIA) to divide communal reservation lands into small, privately owned parcels, to encourage Indians to become small, "civilized" farmers. Between 1887 and 1934 Indian Country is reduced from 138 million acres to forty-eight million acres due to the allotment policy.

1924 The Indian Citizenship Act grants all Indians born in the United States citizenship. Although able to vote and hold state office, Indians are not subject to state law while on Indian land.

1934 The Indian Reorganization Act ends the allotment process and, among other things, encourages the formation of governments with U.S.-style constitutions, causing conflict between new tribal leaders and traditional leaders.

1953 The U.S. government policy again encourages assimilation through tribal termination—ending the special trust relationship and converting tribal reservation lands to private lands. Approximately one hundred tribes are selected for termination. Much Indian land is lost.

1968 Congress passes the Indian Civil Rights Act (ICRA), which extends most, but not all, of the Constitution's Bill of Rights to Indians, including free speech protection and free exercise of religion.

1970s The "Red Power" movement grows, including the American Indian Movement (AIM).

1974 The Supreme Court rules in Morton v. Mancari that American Indians can be treated differently from other U.S. citizens by the federal government because tribes are political—not racial—groups.

1988 The Indian Gaming Regulatory Act is passed by Congress. Within a decade, one-third of the 554 federally recognized tribes operate some form of gaming.

2000 Approximately two million Native Americans, including Hawaiian and Alaskan natives, live on 314 reservations or in cities throughout the United States.

Leonard Peltier

1944- Leonard Peltier is currently serving a double life sentence for murder. However, many people in the United States and throughout the world believe he was wrongfully charged and is instead a political prisoner, convicted of murder on the basis of his beliefs and Native American activism.

Leonard Peltier was born September 12, 1944, and raised by his French-and Oujibwa-speaking grandparents, until he was sent to a Native American boarding school. As a young man, he became active in the American Indian Movement (AIM), a Native American civil rights organization. He came to national prominence after a June 1975 shoot-out on Pine Ridge Reservation near Oglala, South Dakota, which left two Federal Bureau of Investigation (FBI) agents dead.

The FBI quickly arrested four Native Americans. One was released for insufficient evidence and two were aquitted on the grounds of self-defense. Peltier, however, was extradited from Canada and convicted on two counts of murder. He has since been given an additional sentence for an escape attempt.

The FBI charges, and the courts have upheld, that Peltier was involved in the shooting that killed the FBI agents. However, the FBI has been accused by international human rights organizations of instigating violence against the Lakota community prior to the firefight and fabricating evidence afterward. Peltier has been refused a retrial, despite court findings that the FBI withheld evidence that may have exonerated him.