Native American civil rights are the civil rights of Native Americans in the United States.
Although indigenous to the Americas, American Indians became one of many minorities and the movement for American Indian civil rights began almost as soon as Europeans started to arrive in the Western Hemisphere. Following the establishment of the United States of America, Native Americans were denied basic civil rights for many years. While American Indians did not have a particular period of fighting for their civil rights like the African American Civil Rights Movement, measures have been taken to achieve equal rights for American Indians throughout history.
Because American Indians 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 granted via tribal sovereignty and rights that individual Indians retain as U.S. citizens. This Dual Citizen status creates tension within the U.S. colonial context even today, but was far more extreme before Indians were uniformly granted U.S. citizenship in 1924. As non-whites, and non-citizen indigenous people, the United States built discriminatory language into their own laws and took on special colonial projects that denied basic human rights – particularly in the areas of cultural expression and travel – to their indigenous non-citizen "wards."[1]
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After years of unequal schooling, for reasons from racist schools to insufficiently funded schools, the National Indian Education Association (NIEA) was formed to fight for equal education for American Indians in 1969.[2] Another right American Indian Activists strove for 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 persecution had a part of American Indian oppression as well. Up until 1935, American Indian people could be fined and sent to prison for practising their traditional religious beliefs.[4] In more recent times, there has been controversy around the use of American Indian symbols such as for school or team mascots. Concerns are that the use of the symbols distort American Indian history and culture and often stereotype in offensive ways, such as when “savages” is used.[5]
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. The ICRA supports (1) the right to free speech, press, and assembly; (2) protection from unreasonable search and seizure; (3) the right of a criminal defendant to a speedy trial, to be advised of the charges, and to confront any adverse witnesses; (4) the right to hire an attorney in a criminal case; (5) protection against self incrimination; (6) 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; (7) protection from double jeopardy or ex post facto laws; (8) the right to a trial by a jury for offenses punishable by imprisonment; and (9) equal protection under the law, and due process.[6]
Many other civil rights such as sovereignty, hunting and fishing, voting, and traveling have been fought for or are being sought. The fight for American Indian civil rights is a significant part of American History, and continues on today.
Indigenous religions in the Americas were diverse and complex. Religious practices ranged from individual prayers, rituals, and offerings to vast intertribal ceremonies. Usually religious expressions were defined by one's tribe; however, religious practices did arise than spanned multiple tribes.
Each tribal group their own oral histories that included creation myths. The earth, often regarded as a mother, represented all that constitutes the planet, including water and all living creatures. The sky interacted with the earth, providing wind, weather, the sun, stars, and moon.[7]
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,” “taboo,” pertaining to “the three ‘life crises’ of birth, puberty, and death,” “spirits,” “visions,” the “shaman,” and “communal ceremony.”[8]
Over the last five centuries, “Christianity has made enormous inroads into Native society.”[9] This is due to 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 them freedom of religion except for the use of such important ceremonial items, as the eagle feathers or bones (a protected species) or peyote (a restricted drug.)[11]
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]
Many religious Native Americans today voluntarily practice Christianity, both Protestantism and Roman Catholicism, or a combination of Christianity and Native religion.[9]
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, and others in the 19th century.
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 American Indians 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 Indian 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 Indian 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 Indians. These towns lead the way to the future separation of the Indians from the remainder of society in Indian reservations.
The suppression brought by the Europeans and placed on the American Indian people has produced a group of people who are culturally more Euro-American rather than Native American.
“Throughout most of the nineteenth and early twentieth centuries, a ‘quasi-theocracy’ reigned in Indian Country where federal policymakers worked hand in hand with Christian churches to impose Christianity among tribal members 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 Indian 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 BIA,or Indian Office as it was called then, also played a role in the Christianization of Native Americans. Their boarding schools, which were often staffed by missionaries, removed Indian 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.
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 American Indian 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 American Indian 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 Indian. The states laws usually went similarly to South Dakota’s, which stipulates, “[p]eyote 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, is hereby excepted”.[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. Problems have arisen when those who are not of Native American descent join the Native American Church solely for the use of peyote.
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 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, American Indian “government” is not government in the traditional sense of authority and control, but is more like leadership over a community.[28] It is difficult to describe American Indian government in a definite manner due to the fact that there are many different Native tribes with different forms of governing. In current times, the U.S. includes 562 American Indian nations.[27] During the colonial period of America, American Indian sovereignty was upheld by the negotiation of treaties between British proprietor and American Indian 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]
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 v. 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.[29]
During the 19th and early 20th centuries, the United States government attempted to control the travel of Native Americans off 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.[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 Indians. This system required Indians living on reservations to obtain a pass from an Indian 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 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 were still in the area.[32]
While attempting to implement this pass system, the Bureau of Indian Affairs received numerous complaints regarding Indians 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 Indians 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 an angry letter to the BIA protesting that Indians from Fort Hall, Lemhi, Wind River, and Crow Reservations were leaving illegally. In response, the commissioner sent a note to all Indian agents stating that Indians 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 Indian agents were now required to notify other reservations of the departure time of Indians, names of Indians, 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 Indians 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 Indians. Paiute Indians, 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 Indian agents, who wanted the Paiutes to stay under their jurisdiction, wrote letters urging the BIA to stop this free travel. According to one Indian 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 Indians born in America. As a result, American Indians were finally granted free travel in the United States. At the present time, approximately twenty-five percent of Native Americans live on reservations and are free to travel as they wish.
In the 18th century, starting when the Constitution was created, there was a struggle to define what the Indian tribes’ relationship was with the United States. Article 1, Section 2 of the Constitution states that Indians 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 Indians 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 the Indians relationship to the United States government was similar to that of people in an occupied land under the control of a foreign power.[40] This definition meant that Indian 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]
When the 14th Amendment and the first civil rights act were passed in 1866 regarding the role of African-Americans in the United States, citizenship of Indians 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".[42] The country at this time was not necessarily ready for Indians 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)".[42] This sentiment is also shown through a Senate floor debate regarding the Fourteenth Amendment where Senator James Doolittle of Wisconsin stated, “…all those wild Indians 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 Indians at the time, their numbers would be able to overwhelm the power of the white vote.[42] 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”.[43]
While not all Indians were granted citizenship at that time under a blanket law, there were some special considerations made to grant individual Indians 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 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”.[44] The advantage of this was that the Indians could become citizens yet still maintain their status and rights as Indians.[45]
Even for signatory Indian Nations to the Ft. Laramie Treaty, however, it was made clear though that just because a few Indians were citizens, it did not mean that they all 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. When 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.[46] The Dawes Act in 1887 continued to pave the pathway for Indian citizenship in that members of certain Native American tribes who accepted an allotment of land was considered a citizen.[46] The goal was for Indians to, through assimilation, "adopt the habits of civilized life".[47] This movement certainly convinced a lot of Indians to gain citizenship. This is seen through President Theodore Roosevelt’s statement on the allotment policy in which he reported that by 1901, sixty thousand Indians had already become citizens of the United States.[48]
Piece by piece, more acts were created that added Indians to the citizenship rolls.[46] When the Indian Territory (what is now Oklahoma) was abolished in 1907, all Indians who lived in that territory were made citizens through the Oklahoma Enabling Act.[46]
Furthermore, after World War I, any Indian who had fought with honorable discharge was also considered a citizen through the Act of November 6, 1919.[49] 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”.[49]
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”.[49] This finally was stated with the Indian Citizenship Act which was created on June 24, 1924. This act showed progress in that Indians would not have to give up being an Indian 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.[49] However, this did not create the right to vote automatically.
There remained instances in many states that still prevented Indians from voting, even though they were citizens of the United States. For example, the attorney general of Colorado in 1936 declared that Indians could not vote because they were not citizens of the state.[50] 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: Indians 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.[51] 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.[51]
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".[52] Further sections describe the measures taken if violations to this act are discovered.
However, efforts by states and municipalities to disenfranchise American Indians are ongoing, such that there have been about 74 cases brought by or on behalf of Indians under the VRA or the Fourteenth or Fifteenth Amendment since 1965.[53] 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 Indian populations, such as New Mexico, Arizona and Oklahoma.
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.[54] The Senecas had previously made the same claim in a lawsuit which they lost because of the state's assertion of sovereign immunity.[55] 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.[56] On May 4, the Seneca Nation threatened to do the same with Interstate 86.[57]