Advocating for federal Indian law & tribal law
By LORI EDMO-SUPPAH
BOISE — University of Idaho Law School Associate Professor Angelique Townsend EagleWoman is on a mission to educate the public about federal Indian law and tribal law, along with U.S. policy in relationship to it.
She was the keynote speaker at the Kessler-Keener Lectures, Inc. and Red River Powwow Association’s “Native American Presence in Southern Idaho” conference March 15 at the First Presbyterian Church in Boise.
Conference co-organizer Ed Keener said the intent was to create dialogue, understanding and listening as he introduced her.
EagleWoman said she feels strongly about having more American Indians in law school because currently only 51 out of 11,000 law professors are American Indians. “I feel honored to be a part of the gathering and motivation for writing the book ‘Mastering American Indian Law.’”
She gave history about European nations establishing trade relations in North America – British establishing
settlements as colonies along the eastern seaboard. The colonies declaring their independence from Britain then forming the U.S. in 1776. She said federal Indian law’s roots can be traced to the trading relationships developed with Great Britain and then the successor government U.S. according to her book “Mastering American Indian Law.”
EagleWoman talked about the federal Indian policy era pendulum swing from developing to destroying. In article 1, section eight, clause three of the U.S. Constitution, the U.S. Congress was granted the authority to “regulate commerce with foreign Nations and among the several States and with Indian Tribes.” It later becomes interpreted in U.S. Supreme Court decisions. She said treaty relations were based on the idea of Roman conquest.
Concerning the Fort Bridger Treaty that reserved the homeland for the Shoshone-Bannocks a stenographer wrote down Kansas when referring to the Camas Prairie and when it went to Congress for ratification, the area was struck from the Treaty. Because of a surveying error the reservation went from 1.8 million acres to 1.2 million acres. There was no compensation to the Tribes. Treaty making ended in 1871 when Henry Dawes added a rider to an appropriations bill that no longer recognized any treaties made with an Indian tribe. Thereafter they were referred to as executive orders or agreements. EagleWoman also referred to the Lemhi Shoshones executive order and how they were removed from their homeland in 1907 because settlers objected.
She said the Duck Valley Reservation was established in an executive order in 1877 and today 289,819 acres are held in trust. She added tribes are still recovering from the brutal history and trauma and the truth telling is being told today.
She went on to explain the Marshall trilogy laws referring to cases Chief Justice John Marshall authored – Johnson v McIntosh a property rights case that no tribes were involved in where two property owners claimed their land was being overlapped by Indian land. The opinion held that Indians have a right to occupancy to Indian lands and the European nation had a superior title to the same lands because of the doctrine of discovery (U.S. inherited Great Britain’s right by stepping foot on the land), non-Christian’s (Indians) can’t own land.
In Cherokee Nation v Georgia in 1831 – the U.S. Supreme Court ruled the Cherokee Nation was not a foreign nation with standing to file a lawsuit under Article III of the U.S. Constitution. The court found the Cherokee Nation was a “domestic dependent nation” a new political term created that didn’t entitle the Cherokees to sue in federal court. The court also said a ward/guardian relationship existed between the tribe and the U.S. dismissing the case because of lack of standing according to EagleWoman’s book.
The third case was Worcester v Georgia in 1832 that involved missionary Samuel Worcester after he was incarcerated by Georgia officials for not obtaining state permissions and swear an oath to the state prior to entering Cherokee lands. The Supreme Court ruled that federal law preempted state law in Indian affairs upholding the treaty relationship between the U.S. and the Cherokee Nation voiding the Georgia laws.
EagleWoman said the Cherokee were still removed from their homeland with the passage of the Indian Removal Act that President Andrew Jackson secured.
She said the worst traumatic era ever was from 1887 to 1934 with the policies of allotment, assimilation and abrogation that she referred to as violation, rejection and annihilation adding the Dawes Act violated every treaty ever entered into. Tribal leadership has always resisted.
She described assimilation as social experimenting where the government wanted to change Indians into white Christian farmers. It happened in government boarding schools such as Carlisle Indian School where the theme was “Kill the Indian, save the man.” Native people are still dealing with the traumatic effects because of children not being raised in their culture and that’s why there is a lot of alcoholism.
The General Allotment Act or Dawes Act passed in 1887 was designed to assimilate American Indian people into white culture resulting in the loss of 90 million acres of Indian land according to the Indian Land Tenure Foundation. The Act required tribally-held be divided among individual tribal members and the remaining “surplus” lands opened to white settlers. It didn’t apply to all tribes, as a few were successful in avoiding it. EagleWoman explained the Indian agent’s role in the allotment process, how forts were developed to keep the cavalry close by. An agent could withhold rations resulting in Indians leaving reservations to hunt and subsist because the people were starving. They could be shot at and be punished with starvation or through allotment policy. The agent also created the tribal membership roll, if an Indian was rebellious, he or she could be left off, or some may have hid. Allotments were allocated to the head of households and some were 160, 80 or 40 acres of land. The white man viewed it as freeing Indians from the old way of life changing them into U.S. citizens because they now own property. In some cases an agent would have an Indian allotment surrounded by white land so they would be refugees in their own homelands. Indians were viewed as incompetent.
She said the 1934 Indian Reorganization Act halted allotment but allowed tribes to create chartered corporations. The IRA put all authority in one central body – tribal councils. Most of the constitutions were boilerplate that required Secretary of Interior approval. To amend constitutions, a secretarial election must be held that also requires Secretary of Interior approval.
Eventually some tribes became successful in business such as timber mills, ranching, etc. It resulted in political backlash and the adoption of House Resolution 108 terminating the federal trust relationship. The resolution was to free Indians and make them mainstream U.S. citizens. EagleWoman said 110 nations were terminated. Afterward national Indian organizations such as the National Congress of American Indians and National Tribal Chairman’s Association were created.
She also addressed the Indian Self Determination Act – P.L. 93-638 that President Richard Nixon implement because he viewed the termination policy wrong. Self-governance was also implemented. P.L. 280 and executive orders were also addressed.
EagleWoman said there are two bodies of law – the law from the tribes themselves and the other is federal Indian law. The federal Indian laws are in the U.S. Code 25. She wanted to address specific case study – the Evans case that the Ninth Circuit Court of Appeals ruled in December 2013. First she explained the 1981 Crow v Montana case that said an Indian tribe has no authority on fee land if within reservation boundaries with two exceptions if in a contract (consensual relationship) or if have direct effect on political integrity. The other case is zoning case Brendale v the Confederated Tribes of the Yakama Nation – a non-Indian owning fee land wanted to open a resort in a closed area of the reservation but the tribe said no so resulted in a lawsuit. Another non-Indian wanted to open a car dealership in an open area of the reservation. In a plurality ruling, the court said the tribe could zone in the closed area but the state zoned in the open area.
She then explained the Evans case involving the Shoshone-Bannock Tribes. Evans, a non-Indian who owns fee land on the Fort Hall Indian Reservation wanted to construct a home but went to Power County to get permits. The Tribes Land Use Policy Commission said he must get tribal permits and filed a lawsuit against him in Tribal Court. Evans went to federal court with the support of anti tribal groups – the federal court said he must exhaust tribal remedies but Evans appealed to the Ninth Circuit Court that ruled there was no tribal jurisdiction. She said there is a lot of work left to do. “When I think of this case what are the practical results?” she asked. If they are long-term neighbors, how can he be a part of the community when doing thing such as this?
EagleWoman said the United Nations Declaration on the Rights of Indigenous Peoples gives voice to issues and demand for basic human rights. The UN General Assembly adopted the Declaration in 2007. Article 3 recognizes the right to self determination in pursuing political, economic, social and cultural direction; Article 8 contains the right “not to be subjected to forced assimilation or destruction of their culture; article 19 states that nation-states shall adhere to the process of obtaining the “free, prior and informed consent” of indigenous peoples before taking action impacting them; Article 26 says that “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired;” and Article 37 calls for enforcement of “treaties, agreements and other constructive arrangements” entered into between indigenous peoples and nation-states.
In addition to EagleWoman’s talk, Lyndsey Manning and Claire Manning Dick from the Shoshone-Paiute Tribe spoke about family and tribal history. Louise Edmo Dixey spoke about the significance of the Boise Valley while Lori Edmo-Suppah did a presentation on the Return of the Boise Valley People event. EagleWoman also did a workshop on Native Woman’s wisdom in leading a balanced life and Jason Pretty Boy had a workshop on mascots, stereotypes and white privilege.
At the day’s end, participants expressed what they learned and gave suggestions for next steps. Many said more education is needed.
Lyndsey Manning speaks on family and tribal history.