Native American civil rights

Native American civil rights are the civil rights of Native Americans in the United States. Because Native Americans are citizens of their tribal nations as well as the United States, and those tribal nations are characterized under U.S. law as "domestic dependent nations", a special relationship exists which creates a particular tension between rights retained via tribal sovereignty and rights that individual Natives obtained as U.S. citizens. This status creates tension today, but was far more extreme before Native people were uniformly granted U.S. citizenship in 1924. Assorted laws and policies of the United States government, some tracing to the pre-Revolutionary colonial period, denied basic human rights—particularly in the areas of cultural expression and travel—to indigenous people.^[1]

Education

After years of unequal schooling, the National Indian Education Association (NIEA) was formed to fight for equal education for Native Americans in 1969.^[2] Another right sought was media protection: advocates went all the way to the United Nations to seek laws that protected the rights of Native people to own their own media, and for the prosecution of those who persecuted their journalists.^[3] Religious rights was a part of Native American oppression as well. Until 1935, Native American people could be fined and sent to prison for practicing certain traditional religious beliefs.^[4] In more recent times, there has been controversy around the use of Native American symbols such as for school or team mascots. Concerns are that the use of the symbols distort Native American history and culture and often stereotype in offensive ways.^[5]

Indian Civil Rights Act (1968)

With the passage of the Indian Civil Rights Act (ICRA) in 1968, also called the Indian Bill of Rights, Native Americans were guaranteed many civil rights they had been fighting for.^[6] The ICRA supports the following:^[7]

• Right to free speech, press, and assembly
• Protection from unreasonable search and seizure
• Right of criminal defendant to a speedy trial, to be advised of the charges, and to confront any adverse witnesses
• Right to hire an attorney in a criminal case
• Protection against self incrimination
• Protection against cruel and unusual punishment, excessive bail, incarceration of more than one year and/or a fine in excess of $5,000 for any one offense
• Protection from double jeopardy or ex post facto laws
• Right to a jury trial for offenses punishable by imprisonment
• Equal protection under the law and due process

Other civil rights such as sovereignty, hunting and fishing, and voting are still issues facing Native people today.

Religious rights

Religion before Euro-American contact

Indigenous religions in the Americas are diverse and complex. Religious practices range from individual prayers, rituals, and offerings to large intertribal ceremonies. Usually religious expressions were defined by one's tribe; however, religious practices exist that span multiple tribes. Each tribal group has its own oral histories.

Precontact religion was often closely tied to the land. “The land, the environment, and a strong sense of place all had great religious significance. Essentially everything was tied to the supernatural, which led to a proliferation of religious practices across the continent."^[8] These concerns include the omnipresent, invisible universal force, and "the three 'life crises' of birth, puberty, and death," spiritual beings, revelations, human intercessors into the spirit world, and ceremonies that renew communities.^[8]

Religion after Euro-American contact

Over the last five centuries, "Christianity has made enormous inroads into Native society."^[9] Many religious Native Americans today voluntarily practice Christianity, both Protestantism and Roman Catholicism, or a combination of Christianity and Native religion.^[9] There was both voluntary and forced conversion; however, not all tribes embraced Christianity, nor did all members of tribes.

"Euro-American contact and interactions contributed much to Indian marginality and the disruption and destruction of traditional customs and even the aboriginal use of psychoactive substances. This process was noted in the 1976 Final Report to the American Indian Policy Review Commission, Task Force Eleven: Alcohol and Drug Abuse.^[10]

The American Indian Religious Freedom Act was passed in 1978. It allowed freedom of religion except for some restrictions on use of ceremonial items as the eagle feathers or bones (a protected species) or peyote (considered a restricted drug by the federal government);^[11] however, other laws provide for ceremonial use of these by Native American religious practitioners.

One example of Christianity's influence on Native American religion is the prominence of the figure of Jesus Christ in peyote ceremonies of the Native American Church,^[12] which is a syncretic religion.

Many indigenous religions arose in response to colonization. These include the Longhouse Religion, which arose at the end of the 18th century, and the Ghost Dance, Four Mothers Society, Indian Shaker Church, Kuksu religion, and others in the 19th century.

Suppression by European Colonists

The Native American religion was initially suppressed by the colonists who came from Europe with their own particular goals. These included "God, gold, and glory”^[13] and this conflicted with the Native American way of life. From the time of Columbus’s “discovery” of America, Native American religion has routinely been suppressed by English, Spanish, and other European colonists.^[14]

The Christian Europeans who made the journey to the Americas believed it to be their duty to Christianize the Native people. They felt it was their calling by God. Spaniards practiced Christianization in the New World using Pope Alexander VI’s papal bull, Inter caetera. allowed rulers to “bring under their sway [non-Christian] ‘countries and islands’ discovered by Columbus, along with ‘their residents and inhabitants, and to bring them to the Catholic faith.’”^[15]

The missionaries developed "praying towns" to create "orderly Christian communities filled with model converts who were living and working under the watchful eye of a priest or pastor".^[16] Within these communities converts to the Christian faith would be placed in a separate area from the remainder of the tribe in order to prevent regression back to their Native beliefs. Missionaries such as John Eliot a puritan and Isaac McCoy a Baptist lead the way in the spread of their beliefs within these types of towns and amongst the Natives. These towns lead the way to the future separation of the Natives from the remainder of society in Native reservations.

Suppression during the Progressive Era

During the Progressive Era from the 1890s to the 1920s, a "quasi-theocracy" reigned in what federal policymakers called "Indian Country"; they worked hand-in-hand with churches to impose Christianity upon Native Americans "as part of the government’s civilizing project”.^[17] Keeping in the vein of the colonialists before them, Progressive-Era policymakers found no need to separate religious endeavors concerning Native Americans from Native political policy.^[18] The government provided various religious groups with funds to accomplish Native American conversion. It was during this time that the government “discouraged or imposed bans on many forms of traditional religious practices, including the Sun Dance, use of peyote in ceremonial settings and observance of potlatch rituals.”^[17] The Bureau of Indian Affairs (BIA), or the "Indian Office", as it was then called, played a role in the Christianization of Native Americans. Their boarding schools, often staffed by missionaries, removed Native children from the tribe and away from the influence of their cultures.^[17]

In order to pacify Christians, “some tribal religious practitioners modified elements of their traditional practices”.^[19] In the case of the Sun Dance, “a ceremony of renewal and spiritual reaffirmation”, some tribes “omit[ted] the element of self-sacrifice (many participants observed the ritual of skin piercing), reduced the number of days for the ceremony from eight to two and otherwise emphasized the ceremony’s social, rather than religious, features”.^[19] In the past, tribes have also moved religious days to coincide with national U.S. holidays.

Contemporary Native American religious issues

Established in 1918, the Native American Church “emphasiz[ed] the importance of monogamy, sobriety, and hard work”.^[20] Today, it serves as an intertribal, multilingual network. The Native American Church has had a long struggle with the government of America due to their ancient and deeply spiritual religious practice using peyote. Peyote is a psychoactive substance that is found on a cactus and it is used for healing practices and in religious ceremony.^[21] The use of this subject is highly debated due to the outbreaks of drug use especially the psychoactive ones among Americans today. Leaders of the Native American Church argue that the use of peyote allows for a direct connection with gods and that peyote is not taken simply for its psychoactive effects. It is taken in the manner that one might take the sacraments of Christianity.^[22] "Peyote is not habit forming and ‘in the controlled ambiance of a peyote meeting it is in no way harmful’” Rather it is considered a unifying influence on the Native American life because it provides the “basis for Indian friendships, rituals, social gatherings, travel, marriage, and more. It has been a source of healing and means of expression for a troubled people. And it has resulted in one of the strongest pan-Indian movements among American Indians”.^[23]

For years the government has been debating the subject of peyote use. In 1949 peyote use was condemned by the American Medical Association because findings in their study led them to believe that it was habit-forming drug. Congress then attempted to regulate the use of peyote in 1963 with little success, but under the Drug Abuse Control Act in 1965 it was on the list of forbidden psychedelic drugs. Under this act it did not place this on Native American peyotists who were using it for religious practice, though some suffered still under the hands of the state governments for having it in their possession. State laws differed from the United States government standards with states outlawing the use of peyote.^[24] “By 1970, of the seventeen states that still had anti-peyote laws, only five did not provide exemptions for Indians to use peyote ritually.” These were amended under the pressure from the Native American Church member if the members showed proof that they were at least 25 percent Native American. The states laws were generally similar to those of South Dakota, which says that "when used as a sacrament in services of the Native American Church in a natural state which is unaltered except for drying or curing or slicing", peyote use is permitted.^[25] In 1978 the American Indian Religious Freedom Act there was mention of protection for peyote users, but this did not change the fact that they could still be charged. Because it is an “established religion of many centuries’ history...not a 20th century cult nor a fad subject to extinction at a whim”,^[26] it continues to be somewhat protected under the law.

Sovereignty

All Native American tribes are under the U.S. government just as other minority groups. However, unlike other minority groups who are immigrants to the United States, Native Americans are indigenous to American land and have therefore sought and gained sovereignty.^[27] Native sovereignty is made complex by the fact that the British (in colonial times) and American government also co-exist in the same country.^[28] Furthermore, Native American “government” is not government in the western sense of authority and control, but is more like leadership over a community.^[28] It is difficult to describe Native American government in a definite manner due to the fact that there are many different Native tribes with different forms of governing. As of August 2012, there are federally recognized 564 Native American tribes.^[27] During the colonial period, Native American sovereignty was upheld by the negotiation of treaties between British proprietor and Native American tribes. Treaties are agreements between two sovereign governments, and, therefore, the treaties made were made under the understanding that the tribes had equal sovereignty to the sovereignty of the colonial governments.^[28]

Fishing and hunting rights

Although Native Americans consented to or were forced to give up their land, the government allotted them hunting and fishing rights both within their reservations and on their old land that had been sold to and settled by whites. The reserved rights doctrine allowed for tribes to hunt and fish, along with any other rights, as long as they were not specifically denied in a treaty. This angered white hunters and fishers who had restrictions placed on them by the government and they protested against the Natives' right to fish and hunt off of reservations. State agencies pointed out that conservation efforts were possibly compromised by the Native Americans' habits; however the Supreme Court upheld the privilege with certain cases, such as United States v. Winans (1905) and Antoine v. Washington (1975), even going so far as to appropriate from Native Americans the right to hunt and fish on all of their old grounds whether or not they were currently privately owned. The largest amount of opposition and resentment towards Native Americans' fishing and hunting rights stems from the Pacific Northwest.^[29]

Traveling rights

During the 19th and early 20th centuries, the U.S. government attempted to control the travel of Native Americans off Native reservations. Since Native Americans did not obtain U.S. citizenship until 1924, they were considered wards of the state and were denied various basic rights, including the right to travel.^[30] The Bureau of Indian Affairs (BIA) discouraged off-reservation activities, including the right to hunt, fish, or visit other tribes. As a result, the BIA instituted a “pass system” designed to control movement of the Natives. This system required Natives living on reservations to obtain a pass from an Native agent before they could leave the reservation.^[31] In addition, agents were often ordered to limit the number of passes they issued for off-reservation travel. The reasons cited for this limitation were that Natives with passes often overstayed the time limits imposed, and many times Natives left without requesting passes. When this occurred, the military was frequently called to force the Natives to return their reservations. For example, in April 1863, Superintendent J. W. Perit Huntington forced 500 Native Americans to return from the Willamette Valley who had violated the pass system, and estimated that up to 300 Natives were still in the area without US authorization.^[32]

While attempting to implement this pass system, the Bureau of Indian Affairs (BIA) received numerous complaints regarding Natives who traveled without permission. Many complained that Native Americans were killing game merely for the sport and were taking the hides. Other settlers complained that Natives overstayed their visits at neighboring reservations while neglecting their farming duties at home. For example, in December, 1893, Governor John E. Osborne of Wyoming wrote a letter to the BIA protesting that Natives from Fort Hall, Lemhi, Wind River, and Crow Reservations were leaving illegally. In response, the commissioner sent a note to all Native agents stating that Natives who disobeyed the pass system would be arrested and punished by state officials.^[33] Additional rules were also implemented at this time. For example, the Native agents were now required to notify other reservations of the departure time of Natives, names of Natives, and the route they intended to follow.^[34]

In addition to these concerns, many white settlers were unhappy with the travel of Native Americans on the railroads. For example, the Central Pacific Railroad in Nevada had granted Natives the privilege of riding on the roof and flatbeds of rail cars without tickets, in exchange for the right-of-way through their reservations.^[35] Other railroad lines, including the Carson and the Colorado allowed free railroad travel to the Natives. Paiute Natives, for example, frequently rode the trains to their traditional hunting and fishing grounds. "Paiutes would pack up their gathering baskets and hop on the rails, take off a day or two to gather seeds, and bring their harvest back home again, on the car roofs. Men and women used free passes to travel into town or to ranches farther in the hinterlands for jobs."^[36] Angry Native agents, who wanted the Paiutes to stay under their jurisdiction, wrote letters urging the BIA to stop this free travel. According to one Native agent, "The injurious effects of this freedom from restraint, and continual change of place, on the Indian, can not be overestimated."^[36]

The loss of the right to free movement across the country was difficult for Native Americans, especially since many tribes traditionally traveled to hunt, fish, and visit other tribes. The passage of the Indian Citizenship Act in 1924 granted citizenship to all Natives born in America. As a result, Native Americans were finally granted free travel in the United States. At the present time, Native Americans who live on reservations are free to travel as they wish.

Voting

In the 18th century, starting when the Constitution was created, there was a struggle to define what the Native tribes’ relationship was with the United States. Article 1, Section 2 of the Constitution states that Natives are not under the control of the United States, and therefore cannot be taxed.^[37] The Constitution also stated that Congress has the power to “regulate commerce with foreign nations, and among several states, and with Indian tribes” as stated in Article I, Section 8. This means that the leaders of the United States at that time viewed Natives as somewhere in between foreign nations and American citizens.^[38]

The Marshall Trilogy in 1831 helped define sovereignty by stating that the Cherokee nation was a distinct political society but a domestic dependent nation and one that "resembles that of a ward to a guardian".^[39] Therefore Native Americans' relationship to the U.S. government was similar to that of people in an occupied land under the control of a foreign power.^[40] This definition meant that Native people did not have a right to vote. Further clarification was made when in 1856 Attorney General Caleb Cushing stated, “Indians are the subjects of the United States, and therefore are not, in mere right of home-birth, citizens of the United States.^[41]

In 1817 the Cherokee became the first Native Americans recognized as U.S. citizens. Under Article 8 of the 1817 Cherokee treaty, "Upwards of 300 Cherokees (Heads of Families) in the honest simplicity of their souls, made and election to become American citizens."^[42][43] When the Fourteenth Amendment and the first civil rights act were passed in 1866 regarding the role of African-Americans in the United States, citizenship of Natives was defined as well. The Civil Rights Act of 1866 states, “That all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States".^[44] The country at this time was not necessarily ready for Natives to become citizens. Senator Jacob Howard of Michigan commented, “I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me… (Congressional Globe 1866, 2895)".^[44] This sentiment is also shown through a Senate floor debate regarding the Fourteenth Amendment where James Rood Doolittle of Wisconsin stated, “…all those wild Natives to be citizens of the United States, the Great Republic of the world, whose citizenship should be a title as proud as that of king, and whose danger is that you may degrade that citizenship (Congressional Globe 1866, 2892).” (McCool 3) One of his other concerns was that because of the substantial number of Natives at the time, their numbers would be able to overwhelm the power of the white vote.^[44] As Doolittle argued, “there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States…the word “citizen,” if applied to them, would bring in all the Digger Indians of California”.^[45]

While not all Natives were granted citizenship at that time under a blanket law, there were some special considerations made to grant individual Natives citizenship. This in turn gave them the right of suffrage. For example, a treaty involving the United States and the Lakota people demonstrates this. In 1868 Article 6 of the Treaty of Fort Laramie stated that Natives could gain citizenship by "receiving a patent for land under the foregoing provisions… and be entitled to all the privileges and immunities of such citizens, and shall, at the same time retain all [their] rights to benefits accruing to Indians under this treaty”.^[46] The advantage of this was that the Natives could become citizens yet still maintain their status and rights as Natives.^[47]

Even for signatory Native Nations to the Fort Laramie Treaty, however, it was made clear though that just because a few Natives were citizens, it did not mean that they all in turn had the right to vote. In 1884, when John Elk, a Native who lived in Omaha, Nebraska, attempted to register in local elections, he was refused a ballot. When he took the case to Supreme Court and through the Elk v. Wilkins trial, he was ruled against under the circumstances that Natives did not fall under the Fourteenth Amendment.^[48] The Dawes Act in 1887 continued to pave the pathway for Native citizenship in that members of certain Native American tribes who accepted an allotment of land was considered a citizen.^[48] The goal was for Natives to, through assimilation, "adopt the habits of civilized life".^[49] This movement certainly convinced a lot of Natives to gain citizenship. This is seen through President Theodore Roosevelt’s statement on the allotment policy in which he reported that by 1901, 60,000 Natives had already become citizens of the United States.^[50]

Piece by piece, more acts were created that added Natives to the citizenship rolls.^[48] When the Native Territory (what is now Oklahoma) was abolished in 1907, all Natives who lived in that territory were made citizens through the Oklahoma Enabling Act.^[48]

Furthermore, after World War I, any Native who had fought with honorable discharge was also considered a citizen through the Act of November 6, 1919.^[51] As Native Vote states, “The underlying assumption of this act was that these particular Indians had demonstrated that they had become part of the larger Anglo culture and were no longer wholly Indian”.^[51]

By the early 1920s, Congress was considering a bill to make the remainder of Native Americans citizens in their aim to have them “adopt Anglo culture”.^[51] This finally was stated with the Indian Citizenship Act which was created on June 2, 1924. This act showed progress in that Natives would not have to give up being a Native to be a citizen of the United States. This included being an enrolled member of a tribe, living on a federally recognized reservation, or practicing his or her culture.^[51] However, this did not create the right to vote automatically.

There remained instances in many states that still prevented Natives from voting, even though they were citizens of the United States. For example, the attorney general of Colorado in 1936 declared that Natives could not vote because they were not citizens of the state.^[52] Similarly, states found ways around voting in other ways. Because the Fifteenth Amendment 1870 barred states from limiting voting on account of race, states found other ways – residency: claiming that Native Americans were not residents of the state if they resided on reservations, self-termination: one must first abandon their tribal ties in order to vote, taxation: Natives who do not need to pay taxes cannot vote, guardianship: the claim that Native Americans were incompetent and “wards of the state”, and on the lack of ability to read English (McCool 19)

With World War II and the need for more soldiers through the draft, Congress reaffirmed Native people’s citizenship with the Nationality Act of 1940.^[53] However, when some 25,000 veterans returned home after the war, they realized that even though they had put their lives on the line for their country, they were still not allowed to vote.^[53]

In 1965 the Voting Rights Act (VRA) put an end to individual states' claims on whether or not Natives were allowed to vote through a federal law. Section 2 of the VRA states that, “No voting qualification or prerequisite to voting, or standard, practice, or procedure, shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color".^[54] Further sections describe the measures taken if violations to this act are discovered.

However, efforts by states and municipalities to disenfranchise Native Americans are ongoing, such that there have been about 74 cases brought by or on behalf of Natives under the VRA or the Fourteenth or Fifteenth Amendment since 1965.^[55] These in the most part have proved to be successful to upholding the rights of Native Americans as citizens of the United States. Most of these cases are centered on states that have large reservations, or Native populations, such as New Mexico, Arizona and Oklahoma.

Land rights

One of the major issues surrounding land ownership rights of the Native American Nations is for what they are and are not allowed to use their land.

A typical example of the struggle faced involved the Seneca Nation of New York State. On April 18, 2007, the Seneca Nation laid claim to a stretch of Interstate 90 that crosses the Cattaraugus Reservation by revoking the 1954 agreement that granted the Interstate Highway System and New York State Thruway Authority permission to build the highway through the territory. The move was a direct shot at New York Governor Eliot Spitzer's attempts to collect taxes on Seneca territory.^[56] The Senecas had previously made the same claim in a lawsuit which they lost because of the state's assertion of sovereign immunity.^[57] In Magistrate Heckman's Report and Recommendation it was noted that the State of New York asserted its immunity from suit against both counts of the complaint (one count was the challenge regarding the state's acquisition of Grand Island and other smaller islands in the Niagara River and another count challenging the thruway easement). The United States was permitted to intervene on behalf of the Seneca Nation and the Tonawanda Band of Seneca Indians. The United States was then directed to file an amended complaint that "clearly states the relief sought by the United States in this action". In this amended complaint the United States did not seek any relief on behalf of the Seneca Nation relative to the thruway easement. By not seeking such relief in its amended complaint the United States of America permitted the action relative to the thruway easement to be subject to dismissal based on New York's immunity from suit under the Eleventh Amendment to the United States Constitution.^[58] On May 4, the Seneca Nation threatened to do the same with Interstate 86.^[59]

See also

• Native American Rights Fund
• Native American reservation politics
• Outline of United States federal Indian law and policy

Notes

References

• Sale, Kirkpatrick. The Conquest of Paradise: Christopher Columbus and the Columbian Legacy. New York: Plume, 1991. ISBN 978-0-452-26669-8.