Friday, August 12, 2005

The ACLU Handbook for the Rights of Indians and Tribes

In 1988-89 necessity compelled me to take a job in the Browning School System on the Blackfeet Reservation that consisted of supervising the eighth grader study halls. The principal there had the idea that I should also teach Indian law to these kids, who had not yet grasped the principle of ordinary social propriety in the study hall. I figured the principal was hoping I’d get myself fired. (I was cherishing the same hope about him.) A white woman formerly married to a target of Neo-Traditional animosity and now telling Indian kids the law. Right. I have no way of guessing what his real motives were or where the idea came from. I’m guessing it came from the Sioux.

“Braid of Feathers,” reviewed earlier, was a book of persuasion, arguing for the importance of “doing” Indian law from the bottom up, tribe by tribe. The writer’s experience was with the Sioux. The book I want to discuss now also originated with a lawyer on the Sioux reservations, but it is quite a different book. This is “The Rights of Indians and Tribes: An American Civil Liberties Union Handbook,” by Stephen L. Pevar. (Published by the Southern Illinois University Press. The edition I have is the Second, copyright 1992. ISBN 0-8093-1768-0)

There have been other editions and, since Indian law is developing very quickly, the more recent the edition the more useful it is. If one goes to or, copies of many versions are available for as little as a few bucks. (No jokes.)

A book review by Barbara Gray (Kanatiiosh) at states right at the beginning that “This book should stand on your bookshelf between Felix Cohen’s ‘Hand Book of Federal Indian Law’ and William Canby Jr.’s ‘American Indian Law: In a Nutshell.’ The book is that good.” I don’t know either Cohen’s or Canby’s book, but I think this little “Rights” Handbook ought to dwell in the backpack of every young Indian person until they have it nearly memorized.

The book is clearly written without fancy language. It is addressed to “YOU” with the assumption that the reader is an Indian. But the law itself is the US Federal Law -- top down, not states. The format is quite clear: topic, overview, Q & A, and notes that take the reader to precedents and other material. The reader is advised to insist on his or her rights with the help of a lawyer, an ACLU lawyer in some cases. This book doesn’t address the law for Native Hawaiians, which is one reason the book speaks of “Indians” instead of NA’s.

The first chapter summarizes the history of Federal Indian Policy thus, in sequence:
1. 1492 - 1887 Tribal Independence: 400 tribes did things 400 different ways.

2. 1787-1828 Agreements Between Equals: This was a trade-based period, meant to preserve access to goods. Laws pretended to protect Indian lands but were ineffective.

3. 1828-87 Relocation of the Indians: Andrew Jackson, a military man who became president, used the 1830 “Indian Removal Act” to force Indians to the West of the Mississippi River. By 1887 more than two hundred Indians schools intended to remove their cultures from the lives of the students. The first laws prosecuting Indian-on-Indian crimes were passed. In 1871 the practice of making treaties was replaced with federal statutes, which did not require tribal consent. [I wonder who noticed since treaties were commonly ignored!]

4. 1887-1934: Allotment and Assimilation: 1887 is the General Allotment Act, AKA the Dawes Act, which broke up communal tribes. In 1924 Indians were given citizenship in the nation.

5. 1934-53: Indian Reorganization: Partly due to social conscience (Teddy Roosevelt had many reformer friends -- see Charles Lummis blog -- and John Collier became Commissioner of Indian Affairs) and partly due to the Great Depression which meant there was little money for either controlling or subsidizing Indians, the Indian Reorganization Act, also known as the Wheeler-Howard Act, stopped interference with religious life and declared Indian culture equal to that of non-Indians. Tribes were encouraged to become corporations with constitutions and self-government. Indian preference within the BIA was established. Millions were spent on projects and acquiring more Indian land until the costs of war interfered.

6. 1953-68: Termination: Pin this one on Eisenhower, another military president. The IRA was reversed and steps were taken to end reservations. Public Law 83-280 gave designated states full criminal and some civil jurisdiction over reservations. A relocation program moved many Indians to cities where they formed “ghettoes.”

7: 1968 - : Tribal Self-Determination: LBJ and then Nixon, after the disasterous results of Termination policy, declared the great both/and: Indians were to have both citizenship and autonomy. In 1968 Congress said any state authority over reservations had to be acquired through the consent of the tribe. An Indian Business Development Fund, The Indian Financing Act, The Native American Programs Act, The Indian Self-Determination and Education Assistance Act, The Indian Mineral Development Act, The Indian Tribal Governmental Tax Status Act, The Indian Gaming Regulatory Act all attempted to return tribes to the original “trade” basis of colonial days.

The second chapter is about definitions. The first statement is “there are many legal definitions” of what an Indian is. Most people skip quickly over definitions in laws, thinking they are self-evident, but often a definition is the key to a legal decision. The third chapter is about the Trust Responsibility and the fourth is about Indian Treaties. I think that if I’d been an alert BIA official looking at this book in 1992, I would have taken that order of chapters very seriously. It was not accidental: the major lawsuit against the US Government for its failure to properly guard the assets of Indians and Tribes was just beginning.

I’ll close, as I began, with a quote from Barbara Gray’s review: “Somewhat novel to legal books is that the questions posed are actually answered.”

Sixteen other “Rights” books are in this series, including the rights of authors and artists, employees, older persons, single people, teachers, women and young people. Bless the ACLU.

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