t edld 576 b su july 31, 2021 professor’s presentation
TRANSCRIPT
T EDLD 576 B SuJuly 31, 2021
Professor’s Presentation
Learn about history of legal relationships between Native Nations and other governments
Identify educational relationships between Native Nations and other governments
Describe the connection between Indigenous law and education
The law regarding Native Nations and Indigenous issues reflects federal policies over the course of US history.
These policies developed from legal precedents established by European colonists in their relations with Native nations.
No single articulated Native American policy
Efforts of historians and scholars to make sense of the revisions of policies, systems of regulations, redesigned programs, layers of bureaucracy, obligations and procedures inherited from previous policies
Large gaps between policy and actual implementation Conflicting and complementary policies
Authority over Own Government, Citizens, Territory, Resources
Systems of Governance Relations between Nations Civilizations
o Ancient Puebloanso Mound Builderso Haudenosauneeo Aztecso Mayanso Inca
• Pre-Revolutionary War
• Revolutionary War and Articles of Confederation
• Peacetime Policy and Drafting of Constitution
The most accurate description of Christopher Columbus
Feel free to read along.
• Treaty Making• First National Policy• Territorial Expansion• Removal• Reorganization and Expansion of Indian Service
Operations• Ongoing Displacement
Reservation System
Forced Relocation
Post-Civil War Treaties and Policies
End of Treaty Making
Aggressive Westward Expansion
Narrowing of Tribal Power
Civilization and Assimilation
Education Weaponized
Federal Defined Tribalism Halting Land Loss Meriam Report Collier Indian Administration Johnson O’Malley Act Indian Reorganization Act
Post-War Assimilation Policies Indian Claims Commission Voluntary Relocation Program Termination of Native Nations Public Law 280
Return to Government-to-Government Relationship Birth of the National Congress of American Indians Indian Civil Rights Act Indian Self-Determination and Education Assistance
Act (aka P.L. 638)
Tribes are sovereign entities with inherent powers of self-government;
Sovereignty of tribes is subject to discretionary powers of Congress to regulate and modify the status of tribes;
The power to deal with and regulate tribes is wholly federal; the states are excluded unless Congress delegates power to them;
The federal government has a responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens.
It’s complicated
Pre-ContactMap by The Choices Program, Brown University
Pre-Contact
Pre-Contact
5-10 Million People, 600 Nations
Governance: Local to Confederations
Economy: Subsistence to Agriculture
Language: 12 linguistic groups
Based on the Great Law of Peace Personal autonomy was tempered by a sense of
obligation and responsibility to the community
Servant Leader concept
Government to serve and not to rule
Recognizes concept of separation of powers and checks and balances
Society focused on cultivating for future generations
Papal Order of 1452 declared war on non-Christians
We grant you by these present documents, with our Apostolic Authority, full and free permission to invade, search out, capture, and subjugate the Saracens and pagans and any other unbelievers and enemies of Christ wherever they may be, as well as their kingdoms, duchies, counties, principalities, and other property [...] and to reduce their persons into perpetual servitude.
British Crown treated Native nations as foreign sovereign nations
Continental Congress resolved to secure the “friendship of the Indian Nations.”
Articles of Confederation proposed the national government would have “sole and exclusive right” of regulating trade and managing affairs with Native nations.
End result was a compromise: preserved the right to regulate trade and manage affairs of Indians “not members of any states” and preserved the states’ power to legislate “within their own limits.”
Numerous treaties between the United States and Native nations
1784: Treaty with the Six Nationso U.S. received tribes “into their protection”o Ordered “goods to be delivered to the said Six Nations
for their use and comfort”o The tribes would be “secured in the possession of the
lands on which they are settled.”
Continental Congress adopted the Northwest Ordinance: The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent, and in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them and for preserving peace and friendship with them.
- 32 J. Continental Cong. 340-341 (1787)
Congress granted power to “regulate commerce . . . with the Indian tribes.” Art. I, § 8, cl. 3
President empowered to make treaties. Art. II, § 2, cl. 2
“Indians not taxed” language in apportionment clause prevented Indians who were not paying taxes to the State to be counted as state residents for the apportionment of representatives. Art. I, § 2, cl. 3.
Tribes moved from a position of relative equality to position of far less strength
Treaties had a moral and legal force that were not easily ignored
Federal government’s commitment to tribal sovereignty and federal trust obligations
Fundamentally shaped Indian law and policy
Treaties gave rise to certain “canons of construction” which are legal principles to construe treaties (and later federal statutes)
Must be construed as tribes understood them Ambiguities must be construed in favor of the tribes Treaties are the tribes granting rights to the federal
government and reserving all other rights for themselves
Treaties cannot be abrogated (repealed) without clear evidence of congressional intent
Not always negotiated in good faitho Signed but not ratifiedo Ratified after a long delayo Briberyo Negotiated with non-leadership
Abrogated by Act of Congress Were not enforced Ability to enforce historic wrong may be treated as “too
late”
End hostilities or prevent future hostilities Ongoing duty to protect Trade relations Access to resources Provide goods and/or services Money Health services Education
December 2, 1704 treaty between the U.S. and Oneida, Tuscarora, and Stockbridge Tribes included provisions for instructing young men in milling and sawing.
1803 treaty with Kaskaskia included money for a Catholic priest to educate children
Provisions for education were included as a means to reduce the amount of land a tribe would need, to absorb Natives into the larger community, and to convert them to Christianity
Secretary of War Henry Knox advocated for “principles of good faith and sound policy” when dealing with Native nations.
Favored negotiating with Native nations over warring with them
Continued aggression by state citizens against Native nations led to a series of federal laws
Passed between 1790 and 1834 Separated Indians from non-Indians All interactions governed by the U.S. Boundaries of Indian country Acquisition of tribal lands Criminal offenses by non-Indians against Indians was
a federal crime Tribes continued to regulate among themselves
U.S. Supreme Court Chief Justice John Marshall issued a series of decisions that would shape Indian law for the next century and a half
First case of the “Marshall Trilogy” of United States Supreme Court cases regarding the status of Native nations.
Johnson bought land from a Native nation in 1773 and 1775. The plaintiffs were lessees of Johnson's descendants, who had inherited the land. The defendant, M'Intosh claimed to have obtained a land patent.
[D]iscovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession.
While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.
The history of America from its discovery to the present day proves, we think, the universal recognition of these principles.
Dominican theologian Francisco de Victoria – 1532 Rejected the barbarity of Spanish and Portuguese
colonization of the Americas Based on principles of consent:
o Consent of Indian tribes was required before Europeans could legally acquire Indian lands or political domination
o Rejected papal authority to exercise jurisdiction over Indian tribes
o Acquisition of Indian lands was a government matter, not left to individuals
• These principles were negated by the qualifier that they only applied to lands uninhabited at the time of European arrival.
• Instead, the European country that arrived first had rights to claim the land
• Indigenous rights to the land were limited to occupancy only
• European country had the sole right to obtain title to the land “by purchase or conquest”
Uninhabited Lands at the Time of European Arrival
Key:
Uninhabited Lands
Recognized the legal right of Indians in their lands, good against all third parties but existing at the mere sufferance of the federal government
Right of occupancy referred to as “aboriginal title” or “Indian title.”
Between 1828 and 1830, Georgia enacted a series of laws that divided Cherokee Nation lands among several Georgia counties
Invalidated all Cherokee Nation laws Criminalized the Cherokee Nation’s efforts to govern Cherokee Nation filed suit as a “foreign state” under
Article III, section 2 of the U.S. Constitution
Cherokee Nation was a “state”: “a distinct political society separated from others, capable of managing its own affairs and governing itself.”
Tribes, however, could not be considered foreign states: “They may, more correctly, perhaps, be denominated domestic dependent nations. . . . They are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian.”
Cherokee Nation could not pursue its suit
Emphasis on nationhood laid the groundwork for future protection of tribal sovereignty
Created opportunity for later courts to create limits to tribal sovereignty inherent in domestic dependent status
Guardian/ward language provided a doctrinal basis for protection of tribes by the federal government
Furnished support for those who questioned whether tribes were capable of self-government
Georgia law required non-Indians residing in Cherokee territory to obtain a license from the state governor.
Violators were arrested and prosecuted. Several missionaries were living in Cherokee territory. Following arrest and conviction, two of the
missionaries appealed their convictions.
Reviewed the history of relations with Native nations Treaties with the Cherokee Nation Trade and Intercourse Acts Concluded:
“The Cherokee Nation, then, is a distinct community occupying its own territory, with boundaries accurate described, in which the laws of Georgia can have no force.”
Convictions were reversed.
Foundation of jurisdictional law excluding states from power over Indian affairs.
Never been enforced to its fullest extent Numerous cases found ways to carve exceptions to this
rule
Treaty of New Echota signed by minority Cherokee faction that negotiated with the U.S.
Cherokee government contacted Senators and President Van Buren to invalidate Treaty
Supporters of the Cherokee government assassinated persons believed to have participated in the Treaty
Federal troops forced Cherokee citizens into camps and forced west by bayonets
Delaware Kickapoo Quapaw Shawnee Kaskaskia Winnebago Sac and Fox Chippewa Potawatomi
Created in response to continued expansion westward Originally created by treaty, but treaty making ended
in 1871 Intended to keep distance and peace between Indians
and non-Indians Became a tool of assimilation Indian agents assigned to reservations were heavily
influenced by religious organizations Reservation schools operated by religious
organizations
Board of Indian Commissionerso Established 1869o Recommended more schools and more teachers
Congress appropriated $100,000 to support industrial “and other schools” for Indian tribes
Superintendent of Indian Education established in 1882
1887 Indian Department of Education established Bureau of Indian Affairs – still under the War
Department – established schools in former military facilities and assigned military officers to oversee
Allotment rose out of dissatisfaction with the reservation policy.
Tribal economies were in shambles Individuals living in poverty Large tracts of land that could be opened for
settlement Individual land holdings would be farmed Without communal land, tribes would disintegrate
Breaking up Communal Landholdings Did not require tribal consent Land would be held in trust by the U.S. for 25 years After receiving an allotment, the individual would
become a U.S. citizen After granting each individual Indian up to 160 acres of
land, the remaining lands would be opened for settlement
Reduced land: 138 to 48 million acres
Allotment did not meet its goals. Lands were taken out of allottees’ hands in various
ways: o Forced sales for taxes owed after receiving titleo Swindled by non-Indianso Survivorship
o Leasing allotted trust land defeated the purpose of turning Natives into farmers
o Laws of intestacy created fractionated interests between multiple people
Indian Citizenship Act: granted United States citizenship to all Natives who were not already U.S. citizens. Included state citizenship by virtue of the 14th
Amendment Courts of Indian Offenses
o Established to wipe out traditional practice Renaming program implemented to replace Native
names with European names Indian agents interfered with daily activities including
hair length, funeral practices, hunting and fishing
Federal law that grants federal jurisdiction over seven types of serious crimes when one of the parties is Native
Ex Parte Crow Dog, 109 U.S. 556 (1883)o Crow Dog shot and killed Spotted Tail, a Lakota chief. The
matter was dealt according to tradition, and Crow Dog paid restitution to the dead man's family. U.S. authorities prosecuted Crow Dog for murder in a federal court. He was found guilty and sentenced to hang.
o Recognized two distinct concepts: Crow Dog’s tribe had a right to its own law in its territory and in the absence of a federal law, the federal courts had no jurisdiction over Crow Dog
Viewed as the single most important tool in 19th
century assimilation policies Reeducation directed at children who were sent away
to boarding schools or corralled into reservation schools
Shift to boarding schools was to remove children completely from tribal life
Occupational reform was established for adultso Agriculture was foreigno Techniques used pre-contact no longer feasible on
heavily allotted lands
“Tradition is the enemy of progress”
Authorized the Bureau of Indian Affairs (now under the Department of the Interior) to use congressional appropriations “for the benefit, care and assistance of the Indians throughout the United States.”
Basis for majority of services to communities, including education and health.
Trust Relationship from treaty obligations 1934 Indian Reorganization Act
Recognized Inherent Sovereign Authority Created Boiler Plate Governments
Renewal of Gov. to Gov. Relations Introduced the teaching of Indian history and culture in
BIA schools Native Nation Responses
Acquiring land through purchase or restoration Language and ceremonial revitalization Development of tribal justice systems Increase in participation in federal agency programs designed
to serve Natives
Financial incentives and authority for state educational systems to assimilate Native children into state schools
Included funds for programs to meet academic needs of Native children
Required an Indian Parent Advisory Committee Shifted educational control over Indian education
from the federal government to the states
If you can't change them, absorb them until they simply disappear into the mainstream culture.... In Washington's infinite wisdom, it was decided that tribes should no longer be tribes, never mind that they had been tribes for thousands of years.
— Sen. Ben Nighthorse Campbell
Focused on ending the trust relationship between the federal government and Native nations.
Between 1953 and 1964, the federal government terminated recognition of more than 100 tribes and bands as sovereign nations.
Public Law 280 immediately granted the state criminal and civil jurisdiction over Native populations in California, Nebraska, Minnesota, Oregon, and Wisconsin. Alaska was added after statehood.
Indian Relocation Act of 1956 encouraged Native Americans who lived on or near Indian reservations to relocate to urban areas for greater employment opportunities. The program offered to pay moving expenses and some vocational training to government-designated cities like Seattle, San Francisco, Los Angeles, Chicago, Phoenix, and Denver.
George Gillette, chairman of the Fort Berthold Indian Tribal Council weeps as he watches Secretary of the Interior A.J. King sign away the tribe’s rights to the Missouri River and the loss of 700 miles of the most fertile of tribal lands on May 20, 1948. Krug is signing a contract that turned over 155,000 of the reservation in North Dakota for the Garrison Dam and Reservoir project.
● Founded in 1944 to:o Create Coalitiono Create Indian Claims Commission to
compensate for stolen treaty lando Fight Negative Assimilation Policieso Fight Court’s Erosion of Sovereigntyo Annual Meeting sets Policy Agenda
● Membership Today: 250 Indigenous Nations
Rocky barrier of tumbling waters and swift, narrow channels of the Columbia River supported a healthy salmon harvest that served as a trading marketplace.
A half-dozen tribes had permanent villages between the falls and where the city of The Dalles now stands.
As many as 5,000 people would gather to trade, feast, and participate in games and religious ceremonies.
March 10, 1957: The Dalles Dam closed and choked back the downstream surge of the Columbia River.
Four and a half hours later and eight miles upstream, Celilo Falls, the spectacular natural wonder and the age-old Indian salmon fishery associated with it was under water.
Before damming After damming
Another federal attempt to aid Native education in public schools
Part of the effort to shift responsibility from the federal government to the states, which was the goal of the termination era
Provided federal funds for school districts in areas with federal lands, including reservation lands.o Provided funds for education of Native students
Extreme poverty in Indian country and the demand for maximum economic development of Indian land and resources, including the removal of restrictions, clashed with the IRA policy of long term tribal improvement through land consolidation, acquisition, and gradual resource use.
Seriously impacted tribes that escaped termination by revising criminal laws and regulations of land and resources.
Administrative, regulatory, and bureaucratic changes during this period still exist today.
Recognition of inherent tribal sovereignty. 1975 Indian Self-Determination and Education
Assistance ActIndian tribes and tribal organizations negotiate agreements with federal agencies that have the funding for and responsibilities of operating programs that benefit eligible American Indians and Alaska Natives. In effect, tribes step into the shoes of the federal government by assuming the responsibility for operating programs formerly provided by federal agencies.
Congress significantly amended the ISDEAA by enacting the Tribal Self-Governance Act, also known as the Indian Self-Determination and Education Act Amendments of 1994. The Tribal Self Governance Act represented a “step in the direction of empowerment and away from paternalism . . . replac[ing] a stifling federal bureaucracy with tribal governments focused on choices and responsibility.”
Authorizes tribes to redesign or consolidate programs and reallocate or redirect funds “in any manner which the Indian tribe deems to be in the best interest of the health and welfare of the Indian community being served . . . .”
Indian Education Act of 1972o Funded supplemental programs for Native students on
reservations and in urban areaso Parent committee involvement in Native education grant
projectso Culturally relevant materialso Established the Office of Indian Education and the National
Advisory Council on Indian Education Title XI of the Education Amendments Act of 1978
BIA would facilitate Native control of Native educational matters
Funding for Native schools Uniform education standards Local school boards controlled Native education
Required schools to improve their students’ academic performance with the U.S. Department of Education supplemental program funds they receive through the Bureau of Indian Education.
The formula grants are based on challenging State academic content and student academic achievement standards used for all students and designed to assist Native students in meeting those standards.
Using the materials provided or your own research, prepare a post that describes one (1) legal and one (1) educational activity or event for each period in Federal Indian policy, for a total of 16 items (8 legal and 8 educational):
Pre-contact to 1787: Native nation independence 1787-1828: Treaty era 1828-1887: Forced relocation 1887-1934: Allotment and assimilation 1934-1953: Reorganization 1953-1968: Termination 1968-1994: Self-determination 1994-Present: Self-governance The activity or event may be tribal, federal, state, or local. Your post must be at least 500
words and cite at least four (4) different, relevant sources from the assigned readings to date, class materials, or another independent source. Cite using “(Author Last Name, Year)” or, if a website, “(Name of webpage, link, date visited)”.
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