Category: Native Americans

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Anniversary of the Indian Self-Determination and Education Assistance Act

Source: US Global Legal Monitor

Felix Cohen noted that, “[f]rom the earliest years of the Republic the Indian tribes have been recognized as “distinct, independent political communities’” (Cohen 1941, 122). Despite the early nation-to-nation relations between tribal nations and the United States, self-determination was not codified. After termination policies of the 1950s were put in place, many tribal nations and organizations lost over three million acres of tribal lands and their legal standing. Termination is generally acknowledged to be a policy failure; “[n]ative[s] … often returned to their communities to avoid staggering levels of unemployment and poverty.”  “Although some Natives … chose to move off reservations to urban areas, fifty percent returned home to their families and reservations within five years because of a lack of job opportunities, education, and social services.” Activists, grassroots groups, and tribes started working to establish self-determination in law; local communities wanted to direct their own social programs and manage their own land.

In Ada Deer’s biography, Making a Difference, she talked about working to reverse the disastrous Menominee Termination Act and to get the Menominee Restoration Act passed in December 1973. The Menominee were the first tribal nation to have tribal sovereignty restored to them from the prior termination policy of the federal government. On January 4, 1975, Congress passed the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203 (ISDEAA) which reversed the termination policy for all tribal nations. Termination took away land and forced tribal citizens off reservations and into cities. The Indian Self-Determination Act recognized tribal sovereignty and gave funds for tribal programs.

                Tribal Sovereignty. Photo by Flickr user Ian Sane [taken on January 28, 2017]. Used under Creative Commons Attribution 2.0 Generic (CC BY NC-ND 2.0 DEED).

With the passing of the act, tribal governments and organizations can exercise sovereign powers, make laws and a judicial system; manage their own economies and natural resources; and provide and manage education, health, housing, public safety, and cultural programs. It has been a successful policy; Strommer and Osborne noted, “Expanded and refined in subsequent legislation in 1994 and 2000, the Self-Governance Policy has proven so successful that today over 50% of all federal Indian programs are carried out by tribes rather than federal agencies.”

In the case of Ada Deer and the Menominee tribe, under termination policies their logging industry declined, when the Menominee regained control of their forestlands via the restoration act, their forests became a model for sustainable forestry and silviculture. Self-determination provided many similar successes with other tribal nations, such as the many language revitalization programs that are a top priority for tribes today. The ISDEAA has helped with programs and services for urban Natives as well. “Nonprofit urban Indian community centers that are funded through a variety of sources seek to serve urban Indians” (Henson, 2008, 351). Centers like these (e.g., Minneapolis American Indian Center, United Indians of All Tribes Foundation) provide services to natives far from their tribal areas.

As the Indian Health Service noted, “Tribal leaders and members are in the best position to understand the health care needs and priorities of their communities,” and this is equally true of the other key societal functions that tribal nations and organizations manage. “Tribes around the country are investing in their ability to get things done for their citizens, in ways previously rendered impossible by federal paternalism, red tape, off-reservation special interests, and a lack of resources. Importantly, these investments account for a growing number of tribal successes…” (Henson, 2008, 10). As the Indian Self-Determination and Education Assistance Act continues into its fifth decade, tribal nations continue to build their governments and services to help their citizens thrive.

Sources

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Lessons from the Capitalsaurus: Federal Archaeological Law since 1906

Source: US Global Legal Monitor

The “Capitalsaurus Dinosaur” section of the Code of the District of Columbia commemorates the 100-year anniversary of the discovery of bones in Southeast DC (D.C. Code § 1–161 (1998)). On January 28, 1898, on the intersection of First and F Streets Southwest, workers unearthed the bones of a dinosaur during a sewer construction project.

Fittingly dubbed the “Capitalsaurus” in lieu of a scientific classification, the dinosaur’s remains have not been explicitly identified. Nonetheless, a group of elementary schoolchildren gathered together in 1998 to lobby the DC Council to make the Capitalsaurus the city’s official dinosaur. The move was inspired by the actions of Maryland paleontologist Dr. Peter M. Krantz, who helped schoolchildren lobby for their own state dinosaur (Md. Code § 7-322 (1998)). Maryland’s official dinosaur is the Astrodon johnstoni.

Krantz published Dinosaurs of the District of Columbia in 2003, in which he includes geological maps, illustrations, and sources from the Smithsonian Institution to provide an overview of the history of dinosaurs within the DC city lines. The Capitalsaurus was not the only dinosaur found. In 1959, a piece of bone from what is thought to have been a raptor was discovered under East Capitol Street.

The street sign indicating the discovery of the Capitalsaurus by naming the intersection of 1st and F Streets SE as “Capitalsaurus Court.” Photo by Bailey DeSimone.

At the time, no laws existed to explicitly protect or regulate the excavation of historical or archaeological materials. Now, 126 years later, how have the laws changed to reflect the occasional fossil discovery?

The earliest federal law to call for the protection of historical and cultural resources was the Antiquities Act of 1906 (Public Law 59-209). This act outlined the penalties (both financial and penal) for those who “appropriate, excavate, injure, or destroy” historic materials on public lands. The 1959 DC raptor would likely have only been subject to the Antiquities Act.

In 1979, the Archaeological Resources Protection Act (ARPA) (Public Law 96-95) was passed to address the gaps in legal coverage of archaeological materials on U.S. soil (notably different from the National Historic Preservation  Act). The act stated that its purpose was to “secure…the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data.” Designating custody of excavated materials was reserved to Congress and suggested scientific and educational institutions (p. 723), similar to the earlier Antiquities Act. For resources discovered on tribal lands, the Act specified that custody would be “subject to the consent” of the Native community living on the land. Further information about the role of the law in the repatriation of Native American historical materials can be found in the Native American Graves Protection and Repatriation Act (Public Law 101-601), and a recent Law Library panel.

The act also defined “archaeological resource” as “any material remains of past human life or activities” relevant to the field‘s interests. Beyond fossils, this includes pottery, weapons, structures, rock paintings, graves, and more.

In 1988, the act was amended to alter penalties, provide more specific language around the protection of archaeological sites, and to improve outreach and public education (Public Law 100-588). Further amendments were made to the act in 1994 (Public Law 103-437) and 1996 (Public Law 104-333), respectively.

In 2014, ARPA was amended for the most recent time in the codification (Title 54) of existing laws related to the National Park Service (Public Law 113-287).

For further learning on archeological law, domestically and globally, the Law Library has multiple historical and contemporary resources:

As for dinosaur fossils, they continue to be found on U.S. soil, including in many national parks. Just remember – on private property, unearthing fossils is unregulated, but be sure to leave any potential fossils or other artifacts be on public lands.

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Ada Deer: Advocate for Tribal Sovereignty

Source: US Global Legal Monitor

This Native American Heritage Month, we honor the significant figures in history who contributed to civil rights and the law. Ada Deer, Menominee, was an activist, tribal leader, social worker, government official, professor, and community activist, all in service to her community. In the process of trying to make improvements in the quality of Native lives, she accomplished several firsts.

[Ada Deer, former Assistant Secretary of Indian Affairs, Department of the Interior and keynote speaker at the at the U.S. Department of Agriculture’s (USDA) Native American Heritage Month] 20141113-OSEC-RBN-2824 Photo by Bob Nichols. Used under creative commons Attribution 2.0 Generic (CC BY 2.0).

Born in Keshena, Wisconsin, in 1935, she was the oldest of five children. She grew up in a log cabin on the Wolf River on the Menominee Reservation. Ms. Deer’s mother started taking her to tribal meetings when she was just four. Her mother encouraged her throughout her childhood to take part in her community, learn her language, and broaden her horizons by having experiences outside her community. She graduated from the University of Wisconsin-Madison with a bachelor’s in social work, the first Menominee to graduate from the University of Wisconsin. She was the first Indigenous person to obtain a master’s in social work from Columbia University. She wrote that she “had spent almost [her] entire life preparing [her]self to be useful” and that she planned to put her training to work (Deer, Making a Difference, 43).

Shortly after embarking on her professional career, she joined the grassroots movement to restore tribal recognition for the Menominee. In the 1950s, the Menominee Tribe ”experienced further setbacks” with the passage of “the Menominee Termination Act, which removed federal recognition over the Tribe and threatened to deprive Menominee people of their cultural identity.” Deer observed that “immediately upon termination, Menominee County became the poorest county in Wisconsin” although it had been prosperous from careful logging management (Making a Difference, 56).  Menominee tribal members including Deer and some of her family formed the group Determination of Rights and Unity for Menominee Shareholders (DRUMS); she became the chair in December 1970 and made restoration her full-time job (Deer, Making a Difference, 98). After Deer, other Menominees, and non-Menominee Natives, met and lobbied in Washington for three years, Congress passed the Menominee Restoration Act on December 22, 1973. Ms. Deer returned to Wisconsin to work on the Menominee Constitution. She was elected chair of the Menominee Restoration Committee and with the other committee members and assistance from the Native American Rights Fund (NARF), a constitution was drafted and adopted in November 1976.  She was the first woman to lead the Menominee Tribe. When speaking in 1993 about her earlier role, she said:

“Against all odds, we invented a new policy, restoration. Now again, I would like to emphasize this. We, the Menominees, invented a new policy: restoration. This is the possibility, this is the challenge, that Indigenous peoples in the hemisphere and across the world can exert and accept. You don’t have to accept the policies; you can work to change them.” (Speaker’s emphasis.)

Ms. Deer resigned from the committee, having completed her part of the work of restoration, and returned to her full-time career. She was employed at the School of Social Work as a part-time instructor and a curriculum developer at the University of Wisconsin. She spent two years working as a NARF Legislative Liaison focused on Reclamation and Restoration. (Deer, Making a Difference, 136). She was the Program Director of the American Indian and Indigenous Studies Program at the University of Wisconsin Madison until 2007.

She achieved the capstone of her career when she was appointed the Assistant Secretary for Indian Affairs in the U.S. Department of Interior. Deer was the first Native woman to lead the Bureau of Indian Affairs (BIA).  She was sworn in at the Menominee Powwow, another first, instead of in Washington (Deer, Making a Difference, 155). During her tenure, she made the “defense and expansion of tribal sovereignty” her top priority (Deer, Making a Difference, 168). She established government-to-government relationships with 226 Alaskan Native Villages, approved gaming compacts between 130 tribes and 24 states, and approved the federal recognition of four tribes (Deer, Making a Difference, 181).

Described by those who knew her as a “whirlwind” and a “force of nature”, Deer continued her community service until late in life. She said, “Be activists to achieve change. We all pay our rent on the planet. How are you paying your rent?”

Sources

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NAGPRA: An Attempt to Correct the Past

Source: US Global Legal Monitor

The following is a guest post by Alexander Salopek, a collection development specialist in the Collection Services Division of the Law Library of Congress. He previously wrote posts on Fred Korematsu’s Drive for Justice, Fred Korematsu Winning Justice, What a Difference 17 Years Made, and Frances Glessner Lee and the Nutshell Studies of Unexplained Death.

Recently, I took a trip to the Pecos National Historic Park. While visiting the museum, I read about the repatriation of Native remains to Pecos, New Mexico. When I read about that, I was shocked that this happened in the first place, and wanted to learn more about the history.

Pecos National Historical Park ruins of the Pecos Pueblo Mission Church. Photo by Alexander Salopek, August 26, 2023.

Maria Pearson, a member of the Yankton Sioux Tribe, was having a normal day when her husband came home and talked about his day at work. (Bataille et al., 131.) He knew she wouldn’t like it, but neither of them knew the extent to which this conversation would define her legacy. He was working at the Iowa Department of Transportation, and a graveyard was found. All the bodies from the graveyard were reburied except the body of a Native woman and her baby, which the state archeologist took for further study. (Bataille et al., 134.) After hearing this news and taking time to think – the next day Maria Pearson dressed in her traditional regalia and traveled to the governor’s office to act as the ambassador of her people. (Starr, 4.) She argued it was wrong to dig people’s remains up and keep them as exhibits and study objects while other people’s remains were allowed to be reburied. She quickly convinced the governor, and ultimately told the press that she would will her body to the State of Iowa so they would not have to dig her up. (Starr, 9.) Her advocacy first led to the woman and her child being reburied, the same as the Europeans who had been found. (Starr, 10.) She did not stop there; she advocated until the passage of the Iowa Burials Protection Act of 1976, the first legislation of its kind in the country. This new legislation protected the graves of Native remains. After this start in Iowa, this movement for protective legislation led to the passage fourteen years later of the Native American Graves Protection and Repatriation Act (NAGPRA).

At the turn of the century, to combat the high levels of looting on federal land in the West, Congress passed the Antiquities Act of 1906 – which “defined dead Indians interred on federal lands as ‘archeological resources’ and, contrary to long-standing common-law principles, converted these dead persons into ‘federal property.’” (Trope & Walter, 42.) This act permitted anyone to dig up Indigenous dead and bring the bodies and funerary objects to museums for study. (Fine-Dare, 62.)

In the 1970s and 1980s, there was a movement to attempt to correct the wrongs of the past concerning Native peoples in the United States. Examples of laws that were passed and signed into law include the American Indian Religious Freedom Act and the National Museum of the American Indian Act. There was consensus in Congress that legislation was needed, but it was not yet determined what it would look like at that time. (Richman & Forsyth, 172.) The archeologists and museums were concerned because of a variety of issues, including an “expensive, adversarial, and lawyer-dominated process” and those groups felt like they were making good-faith efforts to rectify these issues independently. (Colwell, 105-106) Native activists worked with archeologists and came up with a solution that worked with both groups and forged a new future together. (Chari and Lavallee, 27) NAGPRA Pub. L. 101-601, 104 STAT. 3408 passed both houses of Congress with a voice vote and was signed into law by President George H.W. Bush.

NAGPRA was designed to more effectively and responsibly deal with the graves of Indigenous people – including human remains and funerary objects – and community-owned objects found on federal and tribal lands. (Trope & Echo-Hawk, 59.) The law also established procedures for future excavations that importantly include the consent of Native people. (Fine-Dare, 118.) The act also required that institutions create summaries of their holdings to be able to determine if items should be returned when requested by the tribes. (Chari & Lavallee, 33.) The act included provisions against trafficking of remains, starting at a US $100,000 fine and up to a year prison sentence with a US $250,000 fine and 5 years in prison for subsequent violations. (Trope & Echo-Hawk, 73.) With these strict custody provisions and legal penalties, the act was trying to make up for the wrongs of the past, and work towards a more collaborative future to resolve these issues.

Sources

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Observing Native American Heritage Month and Veterans History Month at the NMAI

Source: US Global Legal Monitor

The Washington, D.C. location of the National Museum of the American Indian (NMAI) sits at the foot of Capitol Hill along Independence Avenue NW. Surrounded by a thoughtfully planted garden that evokes crops native to the Americas, the museum was established in 1989 via an act of Congress (Public Law 101-185). The act was amended in 1996 to include a process for “repatriation of unassociated funerary objects, sacred objects, and cultural patrimony,” among other details. In 2018, the Law Library of Congress hosted a panel discussing the surrounding legislation.

Outside the museum, I followed the short path to the National Native American Veterans Memorial. The Why We Serve exhibit, finishing a two-year run at the end of this month, examines the complex relationship between Native Americans and the United States military, with a priority to honor and recognize these individuals and their legacies. The Navajo Code Talkers are one such group. Many other minority groups, including Asian Americans and Pacific Islanders, have extensive histories within the broader context of veterans history.

The path leading towards the Native American Veterans Memorial outside the National Museum of the American Indian. Photo by Bailey DeSimone.

Both the NMAI and the Law Library contain complementary resources for researching Native American history. One of the museum’s ongoing exhibits, Nation to Nation, displays treaties between the United States and American Indian nations. The Law Library published a research guide on American Indian Law in 2022, as well as a variety of digitally accessible Native American constitutions and other legal materials. A Law Library StoryMap also maps Native American and First Peoples monuments and memorials across the country, and the acts of Congress that cemented them in American legislative history. The Law Library’s blog also explores the relationship between Native Americans and the law through many specialized posts, with a few listed below:

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The Haudenosaunee Confederacy and the Constitution

Source: US Global Legal Monitor

The United States commemorates Constitution Day on September 17, the anniversary of the signing of the Constitution in Philadelphia in 1787. Celebrations usually include readings and discussions of the history of the document and its writing and influences. Many say that the United States, one of the oldest continuous democracies in the world drew influence for its constitution and governmental structure from an even older democracy, the Haudenosaunee Confederacy.

May Day–Haudenosaunee Flag, Five Nations Flag. Photo by Flickr user Ryan [Metrix X]. May 1, 2013. Used under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0). https://creativecommons.org/licenses/by-sa/2.0/

The Senate recognized the influence of the Haudenosaunee (Iroquois) Confederacy on the construction of the Constitution in a resolution read on September 16, 1987, that noted, “the original framers of the Constitution, including most notably, George Washington and Benjamin Franklin, are known to have greatly admired the concepts, principles and governmental practices of the Six Nations of the Iroquois Confederacy. Whereas the confederation of the original Thirteen Colonies into one republic was explicitly modeled upon the Iroquois Confederacy as were many of the democratic principles which were incorporated into the Constitution itself (3-4).”

The Haudenosaunee Confederacy established Gayanesshagowa, the Great Law of Peace, as its governing principle in 1142. The Mohawk, Oneida, Cayuga, Seneca, and Onondaga joined in the Great Law of Peace to form a confederacy; the Tuscarora joined them later. The Law of Peace includes its Chiefs, Clan Mothers, and Faith Keepers, the delegates that form the regulatory bodies of the confederacy. “Within Grand Council meet the Chiefs of each nation which then divide into sections of Elder Brothers and Younger Brothers”; the bicameral Congress is similar. The Clan Mothers have been compared to a high court; they serve for life, have been selected by consensus, and have the authority to remove council members.

The symbols of the union include the long house, the Tree of Peace, the eagle, and a cluster of arrows. The symbols represent a determination of peace and alliance for the group and the power of a unified front. Similarly, the U.S. adopted an eagle as its protector, and one of its symbols is thirteen arrows bound together. The tradition is that the chiefs maintained the council fire and met to discuss confederacy issues beneath the tree; the eagle that flew over the tree guarded the confederacy looking out for enemies, and a bunch of five arrows, one representing each nation, were bound together, with the observation that it is much harder to break a bundle of five arrows than just one arrow.

Constitutional convention members such as Benjamin Franklin were very familiar with the Haudenosaunee Confederacy nations and their founding principles. He reviewed Cadwallader’s The history of the five Indian nations depending on the province of New-York in America, and he wrote the article, “Short Hints Towards a Scheme for Uniting the Northern Colonies.” Franklin wrote to his printing partner, James Parker, “It would be a very strange Thing, if [the] Six Nations… should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner, as that it has subsisted Ages, and appears indissoluble.” He worked on the Albany Plan of Union and members of the Haudenosaunee Confederacy attended the Albany Congress, where members of northern colonies discussed forming a general council for their common defense.

Each of the Six Nations rule themselves while enjoying the peace and support brought to them by the Confederacy today. They have adapted as necessary over time; for example, an elective system was established in 1924. The world’s oldest democracy still thrives. The  Onondaga Faithkeeper, Oren Lyons said, “What Indians are about, I think, first of all is community. They’re about mutual support, they’re about sharing, they’re about understanding what’s common land, common air, common water, common and for all. They’re about freedom.”

Sources

KF26.5.I4 1987r  United States. Congress. Senate. Select Committee on Indian Affairs. Iroquois Confederacy of Nations: hearing before the Select Committee on Indian Affairs, United States Senate, One Hundredth Congress, first session, on S. Con. Res. 76 … December 2, 1987, Washington, DC.

E99.I7 C6 2017 Colden, Cadwallader. The History of the Five Indian nations depending on the province of New-York in America.

Oren, Lyons, and Moyers Bill. “Oren Lyons the Faithkeeper.” BillMoyers.Com, 14 Sept. 2015. Accessed September 10, 2023.

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