SOVEREIGNTY is defined as the power and right of a people to govern themselves. For Native people the legal issue of sovereignty began when the US Senate ratified 380 treaties with Indian nations between 1790 and 1871. These treaties were designed as a way for the United States to acquire land that could then be sold to pay off its debts. In return for the land acquired in these treaties, the US offered Indian nations sovereignty and peace. Sovereign Indian nations are those tribes that are Federally recognized by the US Government. “Federally recognized” means these tribes and groups have a special, legal relationship with the U.S. government. This relationship is referred to as a government-to-government relationship. As of 2010, there are 565 federally recognized tribes in the United States, including 223 village groups in Alaska.
TREATIES were the means that Europeans and Americans used to secure alliances with, and most often acquire land from, Native Americans. Although historians disagree about the number of treaties enacted between 1492 and 1871 they may well number in the thousands. In the 1540s, Spanish cleric Francisco de Vitoria convinced the Spanish that Natives were human and should be treated with respect leading to the introduction of a treaty system. France followed Spain’s lead and began negotiating trade agreements with Native groups in North America in order to ensure their access to the fur trade of the Great lakes region. The Dutch also used treaties to gain access to the western fur trade. During the eighteenth century, England began to rely more on diplomacy and treaties as a way to expand their empire and mercantile systems.
During the 19th century more and more treaties were signed which ceded millions of acres of land in the Northwest and Southeast. In the 1809 Treaty of Fort Wayne, Native Americans ceded to the United States 3 million acres of land in Illinois and Indiana in return for $7,000 up front and $1,750 yearly. In 1830 , President Andrew Jackson urged Congress to pass the Indian Removal Bill, which gave the federal government authority to negotiate with tribes for their removal to the West. Cherokees tried to fight the bill in court, with The Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). Although the cases were unsuccessful the Supreme Court decisions established two principles that would guide treaty making in the future. First, the Court noted that the sovereignty of the United States could not be compromised and that treaties with tribes were not the same as treaties with foreign governments. Second, Justice John Marshall insisted that treaties were instruments of federal power and that the states could not interfere with their implementation. Expansion westward and the signing of new treaties continued to erode the land of Native Americans through the mid-19th century.
The U.S. government abandoned treaty making with Indians in 1871. Angered that the Executive Branch and Senate had never placed many Indian cessions into the public domain, the House of Representatives attached a rider to an Indian Office appropriations bill abolishing treaties. The bill became law. It did not nullify existing treaties, however, and it did not end the practice of negotiating agreements with tribes.
RESERVATION is defined as land reserved for a tribe when it relinquished its other land areas to the U.S. through treaties. More recently, Congressional acts, Executive Orders, and administrative acts have created reservations. Today, there are approximately 275 Indian land areas in the U.S. administered as Indian reservations. On each reservation, the local governing authority is the tribal government..
TRIBAL TRUST LAND is defined as land held by the federal government in a trust status for the benefit of current and future generations of tribal members. Trust lands were created in the late 1800s, following the 1870 law that prohibited new treaty making. The concept of trust land is based on the US government perception that they needed to take care of the land for Native Americans. They believed that Native people could not adequately care for the land. Therefore, ownership remained with the Federal government, but was held in “trust” for a particular band or tribe. Approximately 56.2 million acres of land are held in trust by the United States for various Indian tribes and individuals. Much of this is reservation land; however, not all reservation land is trust land. Most often this land is within the boundaries of a reservation. Trust status means that the land falls under tribal government authority and is generally not subject to state laws. Trust status also creates limitations on the use of the land and requires federal approval for most actions.
The legal concept of sovereignty has been challenged over the years beginning in the 1820s. At that time, Chief Justice John Marshall created the Marshall Trilogy, which held that every treaty ratified by the U.S. Senate under Article VI, Clause 2 of the Constitution was now the "supreme law of the land." Sovereignty, explained Marshall, exists as a pre-condition among self-governing entities and acts as a legal shield protecting all rights and privileges reserved and implied by nationhood. In fact, treaties were the granting of rights from the [Indian nations] to the federal government. President Andrew Jackson vehemently disagreed with Marshall’s ruling. Under his presidency, thousands of Cherokee died on the Trail of Tears. After the Battle of Wounded Knee in 1890, many people believed that the American Indian would be a vanquished race by the end of the 19th century. Because of this belief lawmakers assumed there would be no long-term consequences of any dealings they made with the Native nations. Today, Native American nations have acquired the cash and legal backing (there are more than 2000 Native lawyers in the US) to challenge states when the states attempt to override Native sovereignty. Marshall’s Trilogy continues to be upheld in most cases.
In theory, Native nations possess sovereignty under these agreements. In reality, however, sovereignty is a much more ambiguous concept. In the 1940’s, Congress suspended all such agreements and required that Native men register for military service. Consequently, Native individuals were eligible for the draft in WWII and in the Korean and Vietnam Wars. Even more recent examples of the lack of clarity around the issue of sovereignty include the construction of the Kinzua Dam by the United States which resulted in the displacement of 600 Seneca families and the subsequent flooding of 1/3 of the Allegany Reservation. Similarly in 1959, the Canadian government permitted construction of the St. Lawrence Seaway which cut the Mohawk community of Kahnawake off from the waterway and reduced their land base by 1,262 acres.
Blood Quantum Laws are United States laws enacted to assist in defining membership in Native American tribes or nations. "Blood quantum" is the degree of ancestry for an individual of a specific racial or ethnic group. Blood quantum was first used in 1705 in Virginia to limit colnial civil rightsof peole with half or more Native ancestry. The Indian Reorganization Act of 1934 utilized the concept of blood qunatum to establish which individuals could be recognized as Native American. This recognition would determine eligibility for financial and other benefits under treaties or land sales.
In recent years, each Nation or tribe establishes membership basedon shared customs, traditions, language and tribal blood. This helps to preserve the unique character and traditions of each nation. Each tribe sets forth its own enrollment criteria in their constitutions,or articlesof confederation and determines elgibility for membership. Uniform membership requirements do not exist.
Many nations have a “base roll”, or original list of members designated in their constitution or enrollment documents. The base roll is a common means of establishing membership. A person seeking enrollment in this manner must be lineally descended from someone on the base roll or have a relationship to someone descended from someone on the base roll. Some tribal governments use blood quantum requirements, some do not. The decision is at the discretion of the tribe as part of their sovereignty. Other methods include, tribal residency, or continued contact with the tribe.
For tribes that utilize blood quantum, proper calculation is important in determining eligibility for enrollment. In tribes that do not use blood quantum as an enrollment requirement, degree of Indian blood is still used for statistical purposes and may determine the level of services an individual receives from the tribe. Some federal programs designed for the benefit of Native Americans still require a minimum blood quantum in order to be considered for services.
Indian land is not under state law unless a federal law places it under state law. The Supreme Court held that even if a tribe is under state law the state gaming regulations do not apply on Indian trust land. In 1988, Congress passed the Indian Gaming Regulatory Act (IGRA). Following the IGRA, the National Indian Gaming Commission (NIGC) was created as a federal agency in 1988, to regulate high-stakes Indian gaming. There are three classes of Indian gaming, Class I gaming includes traditional Indian gaming with minimal prizes. Class I is not regulated by the IGRA, but is controlled entirely by the tribal governments. Class II gaming includes bingo, pull tabs, lotto, punch boards, tip jars, and certain card games on tribal land. Class II is regulated by the Tribal government if they have a gaming ordnance approved by the NIGC. Class III gaming includes all forms of gaming not included in either Class I or II. Generally these are considered high stakes casino style games such as slot machines, blackjack, roulette and craps. Class III requires a tribal/state compact approved by the Secretary of the Interior. These compacts have been used by state officials to confiscate Indian casino revenue which serves as a "special" tax on Indian reservations. Essentially, the tribes still have "exclusive right" to all class of gaming except when states do not accept that class or it clashes with federal law. After the enactment of the IGRA Indian gaming revenue increased from $100 million in 1988 to $16.7 billion in 2006. Gambling has brought large amounts of revenue to many Native nations, but has also brought negative results such as corruption. Recent statistics show that among the 565 federally recognized tribes there are 400 Indian gaming establishments. These establishments generate approximately $18.5 billion annually.
Gambling has created controversy within some Haudenosauneee communities. Proceeds from the gaming industry have been used for such projects as housing construction, scholarships and grants for tribal members, academic conferences, and other benefits. There is concern that the gaming industry negatively impacts traditional values and ways of life. There are reservations that operate several gaming establishments while others have chosen not to game.
INDIAN ARTS AND CRAFTS
The Indian Arts and Crafts Act of 1990 (P.L. 101-644) was enacted in 1990 to prohibit the sale or marketing of any art or craft in a way that falsely suggests it was produced by a Native American. The law covers all Indian and Indian-style traditional and contemporary arts and crafts produced in the US after 1935. Individuals who violate the Act can face civil or criminal penalties up to a $250,000 fine or a 5-year prison term, or both. Businesses who violate the Act can face civil penalties or fines up to $1,000,000.
The production and sale of counterfeit or imitation Native American craft items hurts Native people in two ways. Much more cheaply made imitation Native crafts on the market force Native artists to reduce their prices in order not to lose sales, even when their workmanship and materials are far superior. Cultural knowledge is also lost as traditional art forms, if not economically viable, are no longer taught or maintained in Native communties.
As U.S. citizens, Indians are generally subject to federal, state, and local laws. On Indian reservations, however, only federal and tribal laws apply to members of the tribe unless the Congress provides otherwise. In federal law, the Assimilative Crimes Act makes any violation of state criminal law a federal offense on reservations. Most tribes now maintain tribal court systems and facilities to detain tribal members convicted of certain offenses within the boundaries of the reservation. (“Indian” is used in this section because that is the term used in most of the early laws and treaties.)
States have limited jurisdiction in regulating Native Americans. In July of 2008 the Senate Committee on Finance held a meeting to discuss Federal tax issues relating to Native American tribes and Native Americans. A document was prepared by the staff of the Joint Committee on Taxation, which provides a description of Federal tax law relating to Native American tribes and their members. http://ncai.org/fileadmin/economic_policy/JointTaxDocument.pdf There is no specific Code provision that governs the U.S. income tax liability of Indian tribes. Traditionally, the Internal Revenue Service (“IRS”) has determined that Indian tribes and wholly owned tribal corporations chartered under Federal law are not taxable entities for U.S. income tax purposes and are immune from U.S. income taxes, regardless of whether the activities that produced the income are commercial or noncommercial in nature or are conducted on or off the tribe’s reservation. Generally,states do not have taxation powers on reservations since they are federal trust lands subject to federal taxation powers only. Native Americans pay the same taxes as US citizens with the following exceptions: federal income taxes are not levied on income from trust lands held for them by the United States; state income taxes are not paid on income earned on an Indian reservation; state sales taxes are not paid by Indians on transactions made on an Indian reservation; and local property taxes are not paid on reservation or trust land. Native people who work or live off-reservation pay the same State and Federal taxes that US citizens do.
Land is of great spiritual and cultural significance to Native Americans. Many Native communities continue to rely on the land for subsistence through hunting, fishing, gathering, and agriculture. Most importantly, Native lands are vital to maintaining sovereignty. There is an established belief that Indians possess an inherent right to land that they occupied before the formation of the United States. Native nations hold over 50 million acres of land, approximately 2% of the United States. The largest reservation is the Navajo Nation, which is as large as West Virginia. Some reservations are as small as a few acres, and some tribes hold no land at all. The federal government and the tribes have the ability to acquire additional land in trust. Most often this land is purchased by the tribe or acquired from federal surplus lands. Trust status can be conferred only by the Secretary of Interior or the U.S. Congress by statute. However, the Secretary must take into consideration the impact on state and local governments of the removal of land from the tax rolls. State and local governments also have the right to appeal these decisions. The ability of the Department of Interior to take land into trust was created in the 1934 Indian Reorganization Act (IRA) to begin to compensate for unjust takings of tribal lands. Prior to 1934 the US Government took over 90 million acres from Native nations without compensation. Since the enactment of the IRA, about 9 million acres has been returned to trust status. Some Native nations have purchased additional lands with revenues acquired from gaming.
During the 19th century many fraudulent treaties were created. In 1855 the Court of Claims allowed redress for perceived wrongs in land deals, however, the law excluded Indian nations until 1863. Very few claims succeeded until 1946 when Congress created the Indian Claims Commission. The ICC only rules on claims against the Federal government. For Iroquois nations, many of the early treaties and land grants were created by the state and not the federal government.
Iroquois land claims before 1988 include the following:
Oneida 1970 – filed a pre-1790 period claim for 5.5 million acres for a 50 mile wide piece of land from Watertown to the Pennsylvania border.
Oneida 1970 – filed a post-1790 period claim for 250,000 acres in Oneida and Madison counties.
Cayuga 1980 – filed a claim for 64,000 acres at the north end of Cayuga Lake.
Mohawk 1982 – filed a claim for 10,500 acres adjoining Akwesasne.
Seneca 1985 – filed a claim for 50 acres of state owned land in Allegany and Cattaraugus counties.
“Iroquois Land Claims” 1988, ed. by Christopher Vecsey and William A. Starna
In 1923, the first passport issued by the Haudenosaunee government was to Cayuga statesman Deskaheh. He travelled to the League of Nations headquarters in Geneva using that passport. In 1977, an agreement was made between the Iroquois League and the US Department of State, Canada, the United Kingdom and other nations, to accept the Haudenosaunee passport. In 2005, Japan allowed a delegation travelling on the Iroquois passport to visit that country for the World Congress of the International Association for the History of Religions. Despite official Canadian acceptance of the document for entry into Canada, in early 2010 a delegation from Kahnawake to an environmental conference in Bolivia was unable to return to Canada on the passport, stranding the group in El Salvador for several weeks before they were allowed, under escort, to transit via the United States. In July 2010, the United Kingdom did not accept the Haudenosaunee passports of the Iroquois Nationals lacrosse team for travel to the UK for the 2010 World Lacrosse Championship. Initially, it was unclear if the United States government would allow the team back into the US.The United States government offered to immediately issue United States passports to the team-members, and several days after this offer was rejected, issued waivers that would allow the team back into the US; the UK continued to refuse to issue visas. The Iroquois Nationals lacrosse team chose to forfeit their opportunity to play in the World Championships rather than travel on the passports of another country and therefore compromise this important symbol of Haudenosaunee sovereignty.
Cultural or art repatriation is the return of cultural objects or works of art to their country or cultural group of origin. Repatriation also refers to the return of human remains to the nearest relative or cultural community.
During the mid to late 19th century Native Americans lost large amounts of their cultural artifacts. This was caused in part by new museums increasing the demand for collecting cultural objects for their collections. Competition between museums existed in the United States as well as in Europe. Native American human remains are also sometimes uncovered and removed from their burial sites during construction and development. In 1990, federal agencies possessed the remains of 14,500 Native Americans.
In 1990, the US federal government passed the The Native American Graves Protection and Repatriation Act (NAGPRA), Pub. L. 101-601, 25 U.S.C. 3001 et seq., 104 Stat. 3048. This act states that any federally recognized Native American nation can request that any federal agency or institution receiving federal funding return “cultural objects” to the appropriate nation or tribe. Cultural items include: human remains, funerary objects, sacred objects, and objects of cultural patrimony. Museums and other insitutions can receive federal funds to assist in the repatriation process and can incur penalties if they fail to follow the directives of NAGPRA. NAGPRA does not apply to the Smithsonian Institution, which is covered under a different federal law.
NAGPRA was passed in large part due to the hard work and persistence of many Native American nations. Some of the reasons Native Americans give for the importance of this legislation are:
1. State laws were designed to regulate and protect only graves that were marked. Native American graves were often unmarked and therefore did not receive the same protection.
2. When the United States was formed, the legal system that was developed did not take into account Native American ceremonial and burial practices.
3. The First Amendment in the US Constitution protects religious beliefs and practices. These First Amendment rights were ignored when Native American graves were disturbed or when bodies were not allowed to be buried according to Native traditions.
4. Native Americans are considered sovereign, meaning they make their own laws and customs. Their religious and burial practices fall under the jurisdiction of each sovereign nation.
5. There has never been a US government treaty that granted rights to disturb Native American graves or their dead.
Following is a 2010 Summary Report of NAGPRA's progress:
Summaries received: 1,555 total, 462 reporting no collection requiring a summary
Inventories received: 1,319 total, from 1,251 institutions, 262 reporting no collection
Notices of Inventory Completion:
1,404 published, which account for 40,303 human remains and 1,007,894 associated funerary objects
Notices of Intent to Repatriate
520 published, which account for 146,215 unassociated funerary objects, 4,314 sacred objects, 958 objects of cultural patrimony, 1,210 objects both sacred and patrimony, and 292 undesignated
Notices of Intended Disposition
105 Notices reported for 966 minimum number of individuals; 1416 associated funerary objects, 64 unassociated funerary objects, and 3 objects of cultural patrimony
Culturally Unidentifiable Native American Human Remains (CUI) have been found in 730 inventories, from 667 institutions
These remains account for a minimum of 123,927 individuals and 926,331 associated funerary objects (AFO)
4,916 Minimum Number of Individuals (MNI) total subsequently culturally affiliated to date
4,261 MNI total transferred as CUI dispositions
8,823 MNI in Notices of Inventory Completion
Culturally Affiliated Native American Human Remains have been found in 518 inventories, from 442 institutions
42,313 MNI, 1,026,721 AFO
36,795 MNI in Notices of Inventory Completion
In 1992, the Haudenosaunee sent a delegation to the United Nations Earth Summit in Rio de Janeiro, Brazil to spread the words of the Thanksgiving Address. The Thanksgiving Address is a reminder that human beings have a responsibility to act as caretakers of the natural world.
Following the Earth Summit, the Haudenosaunee Grand Council discussed the environmental degradation in their communities and agreed to establish the Haudenosaunee Environmental Task Force (HETF).
The Haudenosaunee Environmental Task Force is composed of delegates (Haudenosaunee leaders, environmental technicians, and scientists) chosen by each of the Haudenosaunee Nations. These individuals are committed to identifying environmental problems in their communities and working to find solutions to them.
The HETF put together a document called Haudenosaunee Environmental Restoration: An Indigenous Strategy for Human Sustainability (HERS). In 1995, the HETF presented the Haudenosaunee Restoration Plan to the United Nations at the Summit of the Elders. It was among the first comprehensive responses by an Indigenous Group to Agenda 21, Chapter 26.
In 1999, the HETF published the book Words That Come Before All Else: Environmental Philosophies of the Haudenosaunee. This 160-page book draws from the Thanksgiving Address and Haudenosaunee Creation Story to present a traditional outlook on our relationship with the natural world.