American Indian civil rights

The struggle for American Indian civil rights began almost as soon as Europeans started to arrive in the Western Hemisphere. There are numerous issues surrounding the civil rights granted to Native Americans; to include voting, rights to public services, and laws respecting them.

The term American Indian is synonymous with Native American and is in use due to its appearance in the United States Constitution.

Religious Rights

Indian religion is largely dominated by the common theme of a “Mother Earth” and “Father Sky.” Each tribal group had variations in their creation myths, but still had one that “promoted respect for “Mother Earth” and “Father Sky.” Mother Earth represented all that constitutes the earth, including water and all living creatures. Father Sky interacted with Mother Earth, providing wind, weather, the sun, stars, and moon.” [(1) French, Laurence Armand. Addictions & Native Americans.Westport, CT, USA: Greenwood Publishing Group, Incorporated, 2000. p 13.]

Along with these various creation myths came their own way of worshiping or communicating with the gods. Problems developed with substance abuse in religion eventually with the Indians. The Indian initially had a system of government that was matriarchal, but as the colonist came in the Euro-American people forced them to become more “civilized” by modeling a male leadership. In addition to the changing of their system of running their homeland Euro-American’s are charged with the blame for introducing alcohol to the Indians.

The Indians became addicted to “psychoactive” substances including alcohol (apparently due to Euro-American influence), but prior to that in the aboriginal times Indians still used various natural elements that were “psychoactive.” These were not used recreationally, but prescribed in various rituals and customs.

"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. [French, Laurence Armand. Addictions & Native Americans.Westport, CT, USA: Greenwood Publishing Group, Incorporated, 2000. p 25.] "
American Indian Religious Freedom Act was passed in 1978 and allowed them "freedom of religion except for they put limits on essential ceremonial items, such as eagle feathers or bones (a protected species) or peyote (a restricted drug), were restricted. [Enumeration of areas of conflict from Francis Paul Prucha, The Great Father: The United States Government and the American Indians, volume 2 (Lincoln, Nebraska: University of Nebraska Press, 1984), p. 1127. ] "

Religious rights of the Indians were challenged in the ritual aspects such as the Sun dance and various “healing herbs.” The colonists intruded and attempted to Christianize the tribes. This was done by the BIA and their schools by taking the Indian children out of their cultures [Blood Struggle,Wilkinson] . The Indian tribes were forced to send their children to school that taught the Christian ways of the colonists.

Current Movements

American Indian Religious Rights (AIRR)

It is a orgainization focused on allowing people who are in prison the ability to practice religion.

AIRR is working to ensure that prison systems within the United States recognize and implement the following areas of religious concern to their policies:
-Construction of and access to a sweat lodge for proper purification ceremonies on a weekly basis
-Private consultation with a Medicine Man/Spiritual Advisor on a level accorded to religious personnel for other faith groups
-To possess and carry a medicine pouch
-Access to a prayer pipe for private and/or group prayer
-That prayer pipe ceremonies be conducted outdoors
-To possess eagle (and other) feathers
-An exemption to grooming codes allowing Native Americans to keep or grow long hair
-Access to possess and use ceremonial herbs such as sage, cedar, sweetgrass and tobacco or kinnikinnik (a blend of tobacco, barks, and roots)

Also, that prison systems:
-Establish a plan for the training and education of employees in American Indian religious beliefs and practices
-Record proper race identification of American Indians
-Recognize Native American religion as a valid form of therapy and rehabilitation.
[http://www.airr.org/]

Religious Freedom with Raptors (RFR)

overeignty

There are 562 American Indian nations in the United States. All American Indian tribes are under the U.S. government just as other minority groups. However, unlike other minority groups who are immigrants to the U.S., American Indians are indigenous and have therefore sought and gained sovereignty, especially since the passive of self-determination in 1975. Today, American Indian nations have responsibility over programs and services such as healthcare, education, gaming, economics, housing, and environmental management. Many of these responsibilities were granted through treaties made with the U.S. government. American Indian “government” is not government in the traditional sense of authority and control, but more like leadership over a community. However, American Indian governments include a constitution and court of law just like any other government.

The U.S. constitution specifically mentions American Indians three times. Article I, section 2, clause 3 and the fourteenth amendment section 2 states that Indians are not to be taxed. In Article I section 8, clause 3, Congress is empowered to “regulate commerce with foreign nations…states…and with the Indian tribes.” Technically, Congress has no more power over Indian nations over it does states and general congressional laws are not applicable to them. However, individuals with U.S. citizenship are subject to all U.S. laws even if they have tribal membership as well, as determined in the Supreme Court case United States v. Nice (1916). [Lemont, Eric D. American Indian Constitutional Reform and the rebuilding of Native Nations. Austin, TX, University of Texas Press 2006, Wilkins, David E. American Indian Sovereignty and the U. S. Supreme Court : The Masking of Justice.Austin, TX, USA: University of Texas Press, 1997.]

One dispute of American Indian government is its sovereignty versus that of the states. The States have never have legislation over the tribes. The power is held only by the federal government. The states and tribal nations have clashed over many issues such as gaming, fishing, and hunting. States have tried to extend their power over the tribes, but federal government ruling has continuously ruled in favor of tribal sovereignty. A major determining court case was Worchester v. Georgia. Chief Justice Marshall found that “England had treated the tribes as sovereign and negotiated treaties of alliance with them. The United States fallowed suit, thus continuing the practice of recognizing tribal sovereignty. When the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty.” [Green, Michael D. and Perdue, Theda. The Cherokee Nation and the Trail of Tears. Viking, 2007.]

The history of the Native American Civil rights began once Europeans required land in the Western Hemisphere. Early on, colonists determined that Native Americans owned land and the proper way to acquire it, was to buy it. This view was formed on a legal, moral, and practical basis. Land ownership was the precedent for colonists. The concept was already in place in England, so it was natural to make it the legal way to deal with land in America. Christianity called for fair treatment of the Native Americans, but Christianity also called for spreading the religion to the unreached Indians. Colonists reasoned that in order to fully follow through in spreading Christianity, settlement on Indian land had to occur. Despite having to pay a price to buy land, buying was really the most practical way to acquire it. The other alternative would be to take it over. However, taking over land would likely require force and would lead to conflict and casualties. It was cheaper to buy land and maintain good relations with the Native Americans than to pay the price in lives. Giving “land owner” status to the Indians was giving them “land seller” status. ["How the Indians lost their Land"Banner, 39.]

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 Indian's right to fish and hunt off of reservations. State agencies pointed out that conservation efforts were possibly compromised by the Native American's habits; however the Supreme Court upheld the privilege with certain cases, such as United States vs. Winans, even going so far as to appropriate Indian's 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 American's fishing and hunting rights stems from the Pacific Northwest. [Law Encyclopedia. West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. ]

Traveling Rights

During the 19th and early twentieth centuries, the United States government attempted to control the travel of Native Americans on Indian 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. [Heartbeat of the People: Music and Dance of the Northern Pow-Wow, Browner] 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 Indians. This system required Indians living on reservations to obtain a pass from an Indian agent before they could leave the reservation. [In a Barren Land: American Indian Dispossession and Survival, Marks] 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 Indians with passes often overstayed the time limits imposed, and many times Indians left without requesting passes. When this occurred, the military was frequently called to help return the Indians to their reservations. For example, in April 1863, Superintendent J. W. Perit Huntington recovered five-hundred Indians from the Willamette Valley who had violated the pass system, and estimated that up to three-hundred escaped Indians in the area were playing hide-and-seek with authorities. [Indians of the Pacific Northwest, Von Aderkas]

Voting

In the 1700’s, starting when the Constitution was created, there was a struggle to define what the Indian tribes’ relationship was with the United States. With the eventual acceptance that Indians were citizens came their right to suffrage as well. Article 1, Section 2 of the Constitution states that Indians are not under the control of the United States, and therefore can’t be taxed. ["Native Vote", McCool, Olsen, Robinson, 1] Therefore, the Indians were not yet citizens. With the Fourteenth Amendment in 1866 and the Civil Rights Act for African-Americans came the start of rights for Indians as well. In 1868, Article 6 of the Treaty of Fort Laramie stated that Indians 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.” ["Native Vote", McCool, Olsen, Robinson, 5]

However, just because a few Indians were citizens, it did not mean that they in turn had the right to vote. In 1884, when John Elk, an Indian who lived in Omaha, Nebraska, attempted to register in local elections, he was refused a ballot. He took the case to Supreme Court and through the Elk v. Wilkins trial, he was ruled against under the circumstances that Indians did not fall under the Fourteenth Amendment. ["Native Vote", McCool, Olsen, Robinson,6]

The Dawes Act in 1887 continued to pave the pathway for Indian citizenship in that any Native American who accepted an allotment of land was considered a citizen. The goal was for Indians to, through assimilation, "adopt the habits of civilized life" ["The Right To Vote", Keyssar 165] After World War I, any Indian who had fought with honorable discharge was also considered a citizen. ["Native Vote", McCool, Olsen, Robinson, 7] Slowly, more and more Native Americans were assimilated into American life, and ultimately, citizenship. By the early 1920s, Congress was considering a bill to make the remainder of Native Americans citizens in their aim to abolish the Indian race. The Indian Citizenship Act was created on June 24, 1924. However, this did not create the right to vote automatically.

Many states made their own laws so they could prevent Indians from voting. 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: Indians who do not need to pay taxes cannot vote, guardianship: the claim that Native Americans were uncivilized and incompetent people, and lack of ability to read English. ["Native Vote", McCool, Olsen, Robinson, 19]

In 1965, the Voting Rights Act put an end to individual states claims on whether or not Indians were allowed to vote through a federal law. Section 2 of the VRA stated 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." ["Native Vote", McCool, Olsen, Robinson, 22] Further sections describe the measures taken if violations to this act are discovered.

There have been about 74 cases brought by or on behalf of Indians under the VRA or the Fourteenth or Fifteenth Amendment since 1965.These in the most part have proved to be successful to gaining more rights for Native Americans. ["Native Vote", McCool, Olsen, Robinson, 45] Most of these cases are centered around states that have large reservations, like in the Midwest and West.

Land Rights

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

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. [ [http://www.buffalonews.com/101/story/57227.html Buffalo News story] ] The Senecas had previously made the same claim in a lawsuit which they lost because of the state's assertion of sovereign immunity. [http://www.upstate-citizens.org/Seneca-v-NYS-tway.pdf] 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 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. [http://www.upstate-citizens.org/Tway-RR-and-Dist-Ct-decisions.pdf] On May 4, the Seneca Nation threatened to do the same with Interstate 86. [ [http://www.salamancapress.com/site/tab1.cfm?newsid=18301123&BRD=2725&PAG=461&dept_id=562848&rfi=6 Salamanca Press article] ]

References


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